Dermer v The Shire of Busselton - [2002] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DERMER & ANOR -v- THE SHIRE OF BUSSELTON & ORS [2002] WASC 194

CORAM: ROBERTS-SMITH J

HEARD: 26 JULY & 2 AUGUST 2002

DELIVERED : 2 AUGUST 2002

FILE NO/S: CIV 1056 of 2002

BETWEEN: CHRISTOPHER EDMUND DERMER
LORRAINE MARGARET LINGARD
Plaintiffs
AND
THE SHIRE OF BUSSELTON
First Defendant
STEPHANIE ROSE FULLARTON
Second Defendant
J A HOLST PTY LTD
Third Defendant

Catchwords:

Injunction - Interlocutory injunction - Shire planning approval for construction of residence - Decision by delegate - Whether valid - Whether serious question to be tried

Local government - Planning approval - Decision by delegate - Whether variation of setback requirements may significantly affect amenity of adjoining property - Whether arguable case

Legislation:

Nil

Result:

Interim injunction granted

Category: B

Representation:

Counsel:

Plaintiffs:     Mr P L Wittkuhn
First Defendant             :     Mr A Roberts
Second Defendant         :     Mr L A Stein & Mr C D Raymond
Third Defendant           :     No appearance

Solicitors:

Plaintiffs:     McLeods
First Defendant             :     Minter Ellison
Second Defendant         :     KPMG Legal
Third Defendant           :     No appearance

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

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1
Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86
Buck v Bavone (1976) 135 CLR 110
Dermer & Anor v Shire of Busselton & Ors [2002] WASC 15
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Mott & Anor v Mount Edon Goldmines (Australia) Ltd & Ors (1994) 12 ACLC 319

Case(s) also cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Drummoyne Municipal Council v Roads and Traffic Authority (1987) 67 LGRA 155
Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28; 93 LGERA 249
Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24

ROBERTS-SMITH J: By notice of motion dated 17 January 2002, the plaintiffs seek orders that the second and third defendants be restrained until trial or further order from proceeding with construction of the dwelling on property at lot 2 on strata plan 30396, number 5 Elsegood Avenue, Yallingup, pursuant to the planning consent of the first defendant granted in respect of an application to the first defendant dated 19 July 2001.
The planning consent was given on 14 August 2001 and in November of that year construction of the dwelling began. On 17 January 2002, the plaintiffs commenced proceedings against the defendants seeking the quashing of the consent and a declaration that the grant of the planning consent is invalid. On 29 January 2002, Miller J made an order in those proceedings that an order nisi for certiorari should issue in respect of that decision.
On 5 February 2002, the hearing of the plaintiffs' application for interim injunction came on before Pullin J in this Court. On the day before the hearing a 187‑page affidavit of the shire officer who under delegation had given the consent, Mr Dykstra, was presented. In the face of that substantial affidavit, counsel for the plaintiffs sought an adjournment in order to take further advice and, if necessary, to respond to Mr Dykstra's affidavit. They sought an injunction from his Honour during the period of that adjournment.
Prior to that point the second defendants had given undertakings not to proceed with the construction, but at that time the indication was given to Pullin J that that undertaking would not be further extended. His Honour granted the adjournment, pointing out that it was then necessary for him to decide whether the interim injunction during the period of the adjournment should be granted. His Honour expressly pointed out that the same principles of law applied in deciding that as would apply to the grant of an injunction to the date of trial.
I respectfully adopt his Honour's summary of the principles to be applied. They are in accordance with the authorities. I have in mind such cases as the Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 at [13] to which his Honour referred, as well as Mott & Anor v Mount Edon Goldmines (Australia) Ltd & Ors (1994) 12 ACLC 319 per Owen J at 321 and 322. In passing, I note in particular the fifth statement of principle set out by Owen J at 322 wherein his Honour pointed out:
"At the hearing for an interlocutory injunction it is no part of the Court's function to resolve conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law calling for detailed arguments and mature consideration."
The plaintiffs in their substantive proceedings raise a number of issues and arguments. The first is that the delegation to Mr Dykstra was invalid. Pullin J held that there is no serious question to be tried about that issue. The alternative argument then put was that the delegation authorised consent only if that would be in accord with the policies and Codes applicable and the delegate, Mr Dykstra, had no power to vary or depart from those. His Honour accepted that submission, but then the question became whether Mr Dykstra had in fact permitted a departure or made a variation in effect or otherwise.
His Honour dealt with the argument as to whether the premises fell within the category of a single house or alternatively was to be described as a grouped dwelling. As to the first, his Honour concluded that such a finding would be remarkable. As to the second, he found that it was reasonable for the shire, and hence the delegate, to conclude that the premises did, in the circumstances, constitute a grouped dwelling and did not accept the plaintiffs' argument that the R‑Codes had been breached by allowing construction on a lot less than 1000 square metres.
The plaintiffs' further alternative argument then was that even if it was a grouped dwelling, there was still non-compliance with the R‑Codes because the circumstances were such that they required notice in writing to be given to the plaintiffs and that was not done. That argument turns on cl 1.5.10 of the R‑Codes.
The clause is set out at 9 of his Honour's reasons for decision delivered on 8 February 2002 (Dermer & Anor v Shire of Busselton & Ors [2002] WASC 15) and it is not necessary for me to set it out again here. It is sufficient to note that the clause requires notice to be given:
"Where a proposal to vary building setback requirements may significantly affect the amenity of an adjoining property unless the prior agreement of adjoining owners and occupiers to the proposed development has been advised."
Where that situation arises notice is to be given and the if there is an objection decision is to be made by the council. So the question was, and is, whether the setback requirements as varied may significantly affect the amenity of the adjoining properties.
Pullin J found that the interchange of side and rear boundary setbacks which had occurred here was a variation of building setback requirements and as a result cl 1.5.10 would apply if the plaintiffs' amenity may be significantly affected. The plaintiffs' argument at that point was that no reasonable decision‑maker could have concluded that the obstruction of views which would occur with the building located only 1.7 metres from the rear boundary would not significantly affect the amenity of the plaintiffs.
As his Honour recognised, the effect of the second defendant's building ("the Fullarton building"), on the plaintiffs' views is just one aspect of the plaintiffs' amenity but in the particular locality is an aspect of importance and indeed the plaintiffs put it on the basis of being an aspect of very substantial importance.
His Honour referred to certain photographs which had been shown to him and expressed the view that they showed what appeared to be substantial obstruction if the Fullarton building was to be completed. He added that Mr Dykstra met that argument in his affidavit by pointing out that even if the building were to be shifted 6 metres from the rear boundary to comply with the primary setback requirements it would still obstruct the plaintiffs' views, although somewhat less.
His Honour then observed that to be one aspect on which the plaintiffs might wish to provide further evidence or to make further submissions about on any adjourned hearing. He then concluded that based on the plaintiffs' case there was a serious question to be tried, namely that no reasonable decision-maker could have concluded that there "may" not be any significant effect on the amenity of the plaintiffs' property.
The point raised by Mr Dykstra (his Honour said) that there would not be any significant difference between the effect on views if the Fullarton property were located 6 metres from the rear boundary rather than 1.7 metres, was a matter that the plaintiffs would have to address. The plaintiffs have now provided further evidence on that issue. I shall return to that shortly.
The next matter raised before his Honour was the question whether there had been a departure from the Yallingup Special Character Area Policy. Clause 101(7) of the Scheme states that while such a policy does not bind the council it nevertheless must have due regard to the provisions of it and to the objectives which the policy was designed to achieve, before making its decision. The plaintiffs argue that there have been fundamental departures from the policy. That is disputed by the defendants and it is disputed by them before me.
His Honour noted that Mr Reid, the husband of the female plaintiff, alleges that Mr Dykstra said to him that, "We cannot consider the elements of the Yallingup Special Character Area Policy because the elements are subjective." His Honour pointed out that the context in which that was said would have to be considered at trial, but the words (if spoken) could at least lead to a possible inference that the policy was not considered by Mr Dykstra.
His Honour found himself in the position of not having had the benefit of any submissions about whether it was possible to resolve on the affidavits the dispute about whether there was or was not a departure from the policy, that being in his Honour's view something the plaintiffs would have to demonstrate if this point were to avail them.
His Honour concluded that if the plaintiffs were to succeed at trial in their arguments, they would suffer irreparable injury for which damages would not be an adequate remedy if the injunction were not granted and the building were to proceed and that, in his view, the balance of convenience favoured the grant of the injunction during the adjournment.
At [44] of his Honour's reasons, Pullin J pointed out to the parties that if the matter were to be listed for further hearing, close consideration should be given by the plaintiff to the matters raised in [26] of Mr Dykstra's affidavit.
If what was said there was not answered, a different conclusion, his Honour said, might be reached about the amenity argument. In particular, as his Honour pointed out, if what Mr Dykstra says to the effect that even if the Fullarton building were built 6 metres from the rear boundary, the interference with the plaintiffs' views would not be significantly different from the interference with the views which would occur if the home were built 1.7 metres from the boundary, then the plaintiffs would not succeed on that argument.
I respectfully agree with his Honour's observation that a person cannot protect views if they choose to buy property in a location which can lawfully be built out at some time in the future. There is no absolute right to a view.
There has been quite an extraordinary amount of material filed in this matter for an interlocutory application of this kind. There are some 26 affidavits, including the 187 page affidavit of Mr Dykstra, and 13 affidavits which were filed after the hearing before Pullin J on 5 February 2002. Mr Dykstra's affidavit aside, which comprises a separate volume, the materials comprise two other substantive and substantial volumes.
I do not propose to set out the evidence. The effect of what the plaintiffs seek to put can be sufficiently expressed, I think, as a proposition that the delegation made by the shire to Mr Dykstra, who was the shire officer who made the decision, as I have said, giving planning consent to the second defendant did not allow him to do so where there was a variation from the R‑Codes and/or the Shire Planning Policies because if there was such a variation, the adjoining landowners would have to have been given the right to lodge an objection and if there was an objection (as there would have been), the application would have to have been referred to the shire for approval - and the plaintiffs were given no such notice.
All of that, I think, can be accepted. The issue the plaintiffs seek to litigate is whether or not there was such a variation so as to invalidate the decision of the delegate.
The defendants raised an argument of issue estoppel in respect of those matters upon which Pullin J had made relevant findings. The plaintiffs, however, expressly state that in the context of this application, they do not seek to disturb any findings of fact or law made by his Honour. I consider that to be a proper position.
His Honour did discuss the issue whether the application was governed by the provisions of the scheme and R‑Codes relative to a single house or a grouped dwelling, as I have noted, and concluded the latter applied. However, he did not advert to the further argument of the plaintiffs that the approval was invalid as being inconsistent with shire policy having regard to the prescribed limits of area. Clause 2.3.2 of the Shire Dual Occupancy Development Policy states:
"The minimum area for the erection of two dwellings on a single allotment in areas coded R 10 or greater is 900 square metres. Development is to be at a density of R 20. In other cases, the maximum area requirements for the particular R‑Code apply. In all cases, the handle of any battleaxe allotments is to be discounted in the calculation of minimum site area and density of development."
The plaintiffs argue that even if the whole of strata plan 30396 is to be considered a single allotment such that the Fullarton building is a dual occupancy dwelling for the purpose of the policy, the land the subject of that strata plan does not meet the threshold area of 900 square metres under cl 2.3.2 once the battleaxe leg is deleted from the calculation of the area.
The actual calculation I think, if done that way, is correct. The contention is that on that basis, the application was not consistent with policy and could not reasonably be considered to be consistent and was accordingly a departure leading to the invalidity of the planning consent.
Mr Roberts for the first defendant counters that submission with the argument that the word "allotment" in cl 2.3.2 must be taken to mean, and can only sensibly mean in context, the parent lot rather than the strata lot. If that construction be right, then the clause does not apply here because the parent lot, of which the Fullarton strata property is part, is not a battleaxe block. I accept that submission. In my view, the plaintiffs' submission does not raise a serious question to be tried.
The major issue raised by the plaintiffs is that of the variation and the application or otherwise of cl 1.5.10 of the R‑codes. Accepting, as I do, that the interchange of side and rear boundary setbacks is a variation of building setback requirements, the issue is whether the plaintiffs have an arguable case on the application of cl 1.5.10.
Pullin J thought the photographs before him (see, for example, AB 2/254) showed what appeared to be a substantial obstruction of the plaintiffs' views if the Fullarton building were to be completed, but he observed that Mr Dykstra met that, as I have noted, by pointing out that even if the building were to be shifted 6 metres from the rear boundary, it would still obstruct the plaintiffs' views, though to a somewhat lesser extent. That was something his Honour suggested the plaintiffs might wish to further consider.
The photographs at AB 2/401‑405 do appear to show significant obstruction either way. Mr Stein, on the other hand, referred to sketches purporting to show 180 degree views from both the Lingard and Dermer properties (AB 2/423, 424), which he argued demonstrated it was reasonable for Mr Dykstra to conclude that the construction of the Fullarton house would not significantly affect the amenity of the plaintiffs' property.
Put very shortly, his overarching submission was that the question raised by cl 1.5.10 is one of opinion and that to succeed the plaintiffs would have to show that opinion formed by Mr Dykstra (and I note whether or not he actually adverted to the question is itself in issue), was not reasonably open on any objective assessment, and that, Mr Stein says, they cannot do. I accept the authorities establish that it may be very difficult on an application for judicial review to show a decision‑maker has erred in respect of a decision which involves the formation of a subjective opinion - see Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 at 94; Buck v Bavone (1976) 135 CLR 110 at 118, and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 and 628.
However, I do not know the issue in this case may be so simply dealt with. There is the threshold factual issue, for instance, of just what the visual effect upon the plaintiffs' views the construction of the Fullarton building would have. That itself is very much in dispute and certainly cannot be resolved on the affidavit evidence before me. Mr Stein himself began his submission with the comment that if the photograph at AB 2/254 was right, that is, was an accurate portrayal of the obstruction the Fullarton building would create, then the second defendant would concede.
That of course was hyperbole, but I think it illustrates the point that if such a degree of obstruction were to be proved at trial, then the plaintiffs might well succeed in showing reviewable error.
I have mentioned already that the plaintiffs also seek to argue that Mr Dykstra failed to advert to cl 1.5.10 at all. As I understand it, the case there would be that nowhere has he said he did advert to the question whether the setback variation may result in a significant effect on amenity of the adjoining properties. I think that proposition is arguable and if it were to succeed, the plaintiffs would have a strong argument that such failure invalidated the approval.
So far as the plaintiffs' argument claiming the failure to comply with the Yallingup Special Character Area Policy is concerned, I accept the submissions made by Mr Roberts. I do not consider it necessary to itemise the individual failures alleged. They were clearly enough identified in the submissions. In my view none of them raise a serious question to be tried.
I turn to what the plaintiffs describe as their third broad basis of challenge, namely, non‑compliance with the provisions of the Dual Occupancy Policy concerning the length and height of walls. This turns on cl 2.4.6 which is headed "Building to Boundary". The clause reads as follows:
"Subject to ensuring there is no unreasonable adverse impact on the privacy or solar access to adjoining properties, consideration will be given to permitting one side and/or rear walls without windows to be built on the boundary. The applicant is expected to consult the adjoining landowner if proposing building on the boundary.
ONE STOREY BUILDINGS
No section of wall built on a side or rear boundary should be longer than 10 metres. Moreover, such walls should not exceed 50% of the length of the boundary or the length of any adjoining wall on the boundary, whichever is the greater.
…
TWO OR THREE STOREY BUILDINGS
No section of wall built within 3 metres of a side or rear boundary should be longer than 10 metres. Moreover, the total length of such walls should not exceed 33% of the length of the boundary."

The evidence here is that the east facing wall of the Fullarton building is 13.64 metres and so exceeds the maximum of 10 metres. The plaintiffs therefore submit the approval allows a departure from the policy and is invalid. Mr Roberts' submission for the first defendant is that the policy applies only to walls built on a boundary which is not the case here. He argues that in the relevant part of the clause "wall" means side or rear boundary wall. Thus the provision under the head "TWO OR THREE STOREY BUILDINGS" should be read as meaning no section of a side or rear boundary wall within 3 metres of another side or rear boundary should be longer than 10 metres. I accept that submission. If it be so, the challenge raises no serious question to be tried.
The conclusion to which I have come overall therefore is that there is a serious question to be tried in respect of the first defendant's alleged failure to comply with the requirements of cl 1.5.10 of the R‑Codes. I have already expressed my agreement with the view expressed by Pullin J at [42] of his Honour's reasons for decision, namely, that if the plaintiffs were to succeed at trial in their arguments, they would suffer irreparable injury for which damages would not be an adequate remedy if the injunction were not granted and the building were to proceed.
It remains for me to consider the balance of convenience in the context of the application now before me. It may be expressed as asking whether the plaintiffs would suffer greater loss if the injunction were refused and they were then to succeed in their substantive proceedings than the defendants would suffer if it were granted and the plaintiffs were to fail in the substantive proceedings.
I think it clear that the balance of convenience favours the plaintiffs. Should the plaintiffs fail, the defendants' remedy would lie in recovering damages on the plaintiffs' undertaking together with costs. If the injunction were not granted and the plaintiffs were ultimately to succeed, they would no doubt be confronted with a house already constructed and be suffering the loss of amenity about which they are so concerned. I will accordingly grant the plaintiffs' application for an interim injunction.