Dermer v The Shire of Busselton

[2002] WASC 15

DERMER & ANOR -v- THE SHIRE OF BUSSELTON & ORS [2002] WASC 15

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 15
Case No:	CIV:1056/2002	Heard:	5 FEBRUARY 2002
Coram:	PULLIN J	Delivered:	8/02/02
No of pages:	13	Judgment Part:	1 of 1
Result:	Interlocutory injunction granted
Category:	B
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Parties:	CHRISTOPHER EDMUND DERMER LORRAINE MARGARET LINGARD THE SHIRE OF BUSSELTON STEPHANIE ROSE FULLARTON J A HOLST PTY LTD
Catchwords:	Injunction Interlocutory injunction Turns on own facts
Legislation:	Nil
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2002] 76 ALJR 1 Coalcliff Community Association Inc v Minister for Urban Affairs & Planning [1999] NSWCA 317 Johns v Australian Securities Commission (1993) 178 CLR 408 Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Re Fiver Pty Ltd; Ex Parte The Cabaret Owners Association of Western Australia Incorporated & Ors, unreported; FCt SCt of WA; Library No 8001; 21 December 1989 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Perpetual Trustees WA Ltd v City of Joondalup [1999] WASC 108 Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; Ex parte Mackenzie [2000] WASC 147 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Reynolds v Panten [No 2] (2000) 23 WAR 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DERMER & ANOR -v- THE SHIRE OF BUSSELTON & ORS [2002] WASC 15 CORAM : PULLIN J HEARD : 5 FEBRUARY 2002 DELIVERED : 8 FEBRUARY 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 - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiffs : Mr D W McLeod & Mr P L Wittkuhn
First Defendant : Mr A Roberts
Second Defendant : Mr L A Stein
Third Defendant : No Appearance

Solicitors:

Plaintiffs : McLeod & Co
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 [2002] 76 ALJR 1
Coalcliff Community Association Inc v Minister for Urban Affairs & Planning [1999] NSWCA 317
Johns v Australian Securities Commission (1993) 178 CLR 408
Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Re Fiver Pty Ltd; Ex Parte The Cabaret Owners Association of Western Australia Incorporated & Ors, unreported; FCt SCt of WA; Library No 8001; 21 December 1989

Case(s) also cited:

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASC 108


(Page 3)

Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re Matthews; Ex parte Mackenzie [2000] WASC 147
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Reynolds v Panten [No 2] (2000) 23 WAR 238

(Page 4)

1 PULLIN J: This is an application for an urgent injunction sought by the plaintiffs.

2 In Yallingup, people pay large sums of money for land on which they build holiday homes to give them views out to the Indian Ocean to the west. The plaintiffs have such properties in Hammond Road in Yallingup. One of the plaintiffs, Mr Dermer, says in an affidavit:

"I have owned the Dermer property since 1991. I had a holiday house constructed there in 1992. Since then I have spent Christmas holidays and school holidays at the Dermer Property, and have visited it approximately every third weekend since that time. I also rent out the Dermer property to others for award (sic) at the times that I am not using it. The rental income can be as much as $20,000 per annum. In my experience, one thing that attracts people to holiday homes in Yallingup is views of the Indian Ocean. The Dermer Property enjoys expansive views of the Indian Ocean."

3 Mr Dermer claims that any development that would obstruct those views would result in a diminution in value to his property and a diminution of the marketability of the property as a holiday rental cottage. The other plaintiff, Mrs Lingard, also rents out her property at a gross rental of $20,000 per annum. Her property also has expansive views of the Indian Ocean directly west through to the north. It has spectacular views of Sugar Loaf Rock and the coastline leading up to Sugar Loaf Rock.

4 The plaintiffs' properties adjoin each other.

5 The land slopes down from the plaintiffs' properties to the west and to the ocean. To the west and below the plaintiffs' properties, and therefore between the plaintiffs' properties and the ocean, is the property of Mrs Fullarton, the second defendant. She purchased the property in 1995.

6 The Fullarton property has the following history. Originally it was part of a larger lot, or "parent" lot, called Lot 58 which was 931 square metres in area. It had been sub-divided into lots 1 and 2. Lot 2 abutted the plaintiffs' property. It was a battleaxe block with the "handle", or driveway, running east-west along the southern boundary of Lot 1. The Fullartons purchased Lot 2. There was a house already located on Lot 1.

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7 On 14 August 2001, Mr Dykstra, the senior statutory planning officer employed by the Shire of Busselton, gave written planning consent to Mrs Fullarton under the provisions of the Shire of Busselton District Town Planning Scheme No 20 ("the Scheme"). This planning consent gave approval to Mrs Fullarton to build a two-storey timber frame residence on Lot 2. Construction began in November 2001. Foundations were laid in accordance with the plans approved by Mr Dykstra and in close proximity to the western boundary of Lot 2, which abutted the Dermer property. The plaintiffs noticed a steel pole which had been erected on the Fullarton property, which appeared to be the commencement of the frame to a new building and appeared to indicate the proposed height of the building.

8 The plaintiffs then obtained copies of the plans for the Fullarton building and concluded that the new building would significantly block out a corridor of the most attractive views from the Lingard property to the north and north-west, and block out westward views from the Dermer property.

9 The plaintiffs allege that the planning consent given by Mr Dykstra is invalid and of no effect.

10 The plaintiffs have commenced separate proceedings against the Shire of Busselton ("the Shire"). On 29 January 2002, an order was made in this Court in those proceedings that the Shire do show cause before the Full Court why a writ of certiorari should not be issued to remove into this Court for the purpose of being quashed, the decision of the Shire, by its delegate, to grant planning consent pursuant to the respondent's Scheme in respect of the Fullarton proposed dwelling.

11 In these proceedings, the plaintiff also seeks a declaration that the grant of the planning consent is invalid.

12 It is an offence to commence development without planning consent. See cl 20(2)(a) of the Scheme and s 10 of the Town Planning and Development Act. Mrs Fullarton says that she has planning consent and therefore she commits no offence. If the planning consent granted by Mr Dykstra is consent of the Shire, then until the consent is quashed or declared invalid (if that ever occurs), it is of full effect. See Re Fiver Pty Ltd; Ex Parte The Cabaret Owners Association of Western Australia Incorporated & Ors, unreported; FCt SCt of WA; Library No 8001; 21 December 1989 per Malcolm CJ at p 28; Coalcliff Community Association Inc v Minister for Urban Affairs & Planning [1999]

(Page 6)

NSWCA 317 at par 83; and Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88.

13 However, if the planning consent is held to be invalid or is quashed, then it is deemed to be so since the date upon which it was made. That would mean that all of the development work which has taken place since on the Fullarton property was a prohibited development. See Minister v Rosemount Estates Pty Ltd (supra) at p 88.

14 The plaintiffs commenced these proceedings on 17 January 2002. A notice of motion for interim injunction was issued on 17 January 2002, and an undertaking not to continue with the development was given by Mrs Fullarton which was due to expire at 4.00 pm on 5 February 2002. Mrs Fullarton refused to extend the undertaking beyond that date. As a result, the application for the injunction was brought on urgently to be heard before me on 5 February 2002.

15 On the day before the hearing, a 187-page affidavit, sworn by Mr Dykstra and filed by the Shire, raised matters upon which the plaintiffs sought to gain advice from their planning expert, Mr K Adam, who has been retained and who has sworn an affidavit in these proceedings. I should add that I received the file only the day before the hearing. Mr Dykstra's affidavit was only located and provided to me during the course of the oral submissions.

16 At the commencement of the hearing, counsel for the plaintiffs sought an adjournment in order to take the advice from Mr Adam and, if necessary, to respond to Mr Dykstra's affidavit. The plaintiffs sought an injunction during the period of that adjournment. Counsel for Mrs Fullarton said that she would not extend the undertakings, even in those circumstances.

17 I am prepared to grant the adjournment to give the plaintiffs the opportunity to consider, and if necessary to respond to, the Dykstra affidavit. However, it is necessary to decide whether there should be an injunction during the period of the adjournment.

18 If I decide to grant an injunction, even for the short time necessary to give the plaintiffs the opportunity to deal with the Dykstra affidavit, the same principles of law govern my decision as will apply to an application for an injunction through until trial.

19 I must therefore decide whether there is a (1) serious question to be tried or that the plaintiffs have made out a prima facie case in the sense

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that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiffs will be held entitled to relief; (2) the plaintiffs will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2002] 76 ALJR 1 at par 13.

20 The first issue is, therefore, whether the plaintiffs have grounds for their claim that the planning consent is invalid or should be quashed.

21 The plaintiffs' first argument is that planning consent must be given by the council of the Shire unless there has been a valid delegation of power to Mr Dykstra. The Shire submits that council has validly delegated the power to grant planning consent to Mr Dykstra. The plaintiffs argued that the delegation is invalid.

22 Clause 93 of the Town Planning Scheme permits the council to delegate the power to give planning consent to an officer of the council. By Delegation No 84, it appears that council delegated to the senior planning officer (Mr Dykstra), the authority to approve applications for planning consent and to impose conditions as he thought fit where, in his opinion, such applications complied with the Town Planning Scheme and the council's policies or codes. Delegation No 84, however, states that the legislative power of delegation is from the Local Government Act 1995. Counsel for the Shire does not attempt to argue that the power of delegation under the Local Government Act authorises delegation of powers conferred on the council of the Shire under the Scheme. However, the Shire argues that if there has been a delegation of authority to Mr Dykstra, it does not matter that council was mistaken about the source of its power to do so. There is authority to support the Shire's submissions. See Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 and the cases cited on that page. In my view, there was a valid delegation of power to Mr Dykstra.

23 There is, in my opinion, no serious question to be tried about this issue which is raised by the plaintiffs.

24 The plaintiffs raise an alternative argument, which is that even if the delegation to Mr Dykstra is valid, the delegation only permitted him to grant planning consent if the application was in accordance with the Scheme and its policies and codes, and that Mr Dykstra had no power to

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exercise a discretion to vary the provisions of the Scheme or to ignore provisions in policies or codes which applied.

25 I agree that Mr Dykstra only has power to grant planning consent in relation to applications which comply with the Scheme and the Shire's policies and codes. It seems clear that the intention of the council of the Shire was that where there was an application which required departure from the Scheme or its policies or codes, the decision about whether there should be such a departure was a matter for decision of the council of the Shire and not for its delegate.

26 The question then is whether Mr Dykstra purported to permit a departure from the Scheme or from policies or codes. The plaintiffs advance two arguments under this head.

27 First, they point to cl 6(3) of the Scheme, which states that except as otherwise provided by the Scheme, the development of land for any residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes. Table 1 Col 3 of the R Codes sets out minimum areas of lot per dwelling and states that the minimum area of a lot for a "single house" zoned R10 is 1,000 square metres. The plaintiffs point out that the Fullarton property is only 405 square metres in area. Thus, if the house to be constructed on the Fullarton property is a "single house", then the proposed dwelling should not be approved under the Scheme. A "single house" is defined in the R Codes at cl 1.3.1 as a reference to a house standing wholly on its own lot. It would be a remarkable result if this argument succeeded, because it would suggest that Mrs Fullarton was not able to construct a house on the land which she had purchased. In case that argument is not accepted, the plaintiffs then run an alternative argument, and that is that the dwelling might properly fit within the description of "grouped dwelling". That expression is defined in the R Codes at cl 1.3.1 as follows: "Grouped dwelling means a dwelling which is one of a group of two or more dwellings on the same lot …"

28 There is a dwelling already on Lot 1 on Strata Plan 30396, but the plaintiffs argue that that dwelling and the proposed dwelling on the Fullarton property, are on separate lots if regard is had to the definition of "lot" within the Town Planning and Development Act 1928 – see s 2(1). There can be little doubt that the Fullarton property is a "lot" within that definition, but the question is whether the reference to the "same lot" in the definition of "grouped dwelling" must refer to the Fullarton property or whether it can be read to refer to the parent lot. In my view, the Shire,

(Page 9)

and therefore its delegate, was entitled to decide that the Fullarton building would be governed by the "grouped dwelling" provision by reference to the parent Lot 58. This conclusion is supported by reference to cl 57(a) of the Scheme which reads:

"Council may consent to the development for the purposes of the erection of not more than two grouped dwellings at density R 20 on any allotment comprising not less than 900 m2 within any area coded R10 or greater."

29 It is to be noted that the reference is to an "allotment" (not defined) rather than the precisely defined term "lot". The original Lot 58 can be regarded as an "allotment".

30 Therefore, I do not accept the plaintiffs' argument that the R Codes had been breached by allowing construction on a lot of less than 1,000 square metres in size.

31 The plaintiffs, however, do not give up at that point. They argue that, even if the "grouped dwelling" definition can be applied, there is non-compliance with a clause in the R Codes, which, the plaintiffs argued, required advice to be given in writing to the plaintiffs of the proposed development

32 The clause referred to by the plaintiffs is cl 1.5.10 of the R Codes. It reads:

"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, Council shall:-

(a) cause the owners and occupiers of affected property to be advised in writing of the proposed variation;

(b) afford reasonable access to the plans of the proposed development for a period of not less than 14 days commencing on the date of notification, and

(c) in its determination of the application, have regard for any submissions received during the 14 day period specified in paragraph (b) above …"

33 The plaintiffs were not notified of the development proposal, and therefore they had no opportunity to make submissions.
(Page 10)

34 What triggers the right to make submissions is a "proposal to vary building setback requirements". If there is such a proposal, then if that proposal "may" significantly affect the amenity of an adjoining property, notice has to be given to the adjoining owners.

35 Was there a proposal to vary building setback requirements? The Fullarton house will be setback from the Fullarton rear or eastern boundary by 1.7 metres. According to the table in the Residential Codes, the setback of the building from the rear boundary should be 6 metres. However, cl 1.5.6 of the R Codes reads: "The side and the rear boundary setback may be interchanged". Mrs Fullarton argues that there has been such an interchange and that 1.7 metres is a permitted set back for the side boundary. I must mention another clause, cl 1.5.7, which states that minimum setbacks specified in the Codes may be reduced if the Council so decides, having regard to factors including the effect of such variation on amenities.

36 The question then arises as to whether the "interchange" of the side and rear boundaries setback is a "proposal to vary buildings setback requirements", which is the phrase which appears in cl 1.5.10 set out above. The imprecision of the language gives rise to difficulty. Is the interchanging of the side and rear setback a "variation" of the building setback requirements? If the "building setback requirements" are those specified in Tables 1 and 2, then a proposal to "interchange" the side and rear boundary setbacks is arguably a proposal to "vary" the building setback requirements. On the other hand, it can be argued that the interchanging of side and rear boundary setbacks is not a "variation" and that a proposal to "vary building setback requirements" is a reference to a case where the council proposes to allow a lesser setback as a result of the power conferred on it in cl 1.5.7. In my opinion, an interchange of side and rear boundary setbacks is a "variation" of building setback requirements. As a result, cl 1.5.10 will apply if the plaintiffs' amenity may be significantly affected.

37 The plaintiffs then allege that no reasonable decision-maker could have concluded that the obstruction of views which will occur with the building located only 1.7 metres from the rear boundary, would not significantly affect the amenity of the plaintiffs. This is an argument based on "Wednesbury" principles. Counsel for Mrs Fullarton disputes this. He argues that this is merely an attempt to argue the merits of the decision reached by Mr Dykstra that there was no effect on amenity. If that is so, then it is not a permissible ground for reviewing Mr Dykstra's decision. What must be shown is that the decision is not one which could

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reasonably have been reached. The decision which had to be reached is not whether amenity "was" significantly affected, but whether amenity "may" be significantly affected. The effect of the Fullarton building on the plaintiffs' views is just one aspect of the plaintiffs' amenity. However, in this area of Yallingup it is, in my opinion, an aspect of importance. Counsel for the Shire did not disagree that a point could be reached where obstruction of views was so great that it could not be reasonably argued that amenity "may" not be affected. I have been shown photographs which show what appears to be substantial obstruction if the Fullarton house is completed. Mr Dykstra meets this argument in his affidavit by pointing out that even if the building is shifted 6 metres from the rear boundary, it will still obstruct the plaintiffs' views, although somewhat less. That is one aspect on which the plaintiffs may wish to provide further evidence, or to make further submissions about when they have had more time to consider Mr Dykstra's affidavit.

38 It may be that people who buy at the eastern side of Yallingup and high up on the slope, must accept that there is a risk of being built out, but if the buildings may cause a significant effect on amenity by reason of some variation to setback requirements, then the neighbours are at least entitled to be heard.

39 In my view, based on the plaintiffs' case, there is 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 that there would not be any significant difference between the effect on views if the Fullarton property is located six metres from the rear boundary rather than 1.7 metres, is a matter which the plaintiffs will have to address.

40 At the present time, all I can say is that the plaintiffs' evidence suggests that the Fullarton building located further up the slope than would be the case if the 6 metre setback had been adhered to, does cause a substantial obstruction to their views. That being so, then it is arguable that the grant of planning consent is invalid because it was granted without the plaintiffs having had the opportunity to make submissions.

41 The final point raised is that there has been a departure from the Yallingup Special Character Area Policy. This is one of the policies listed in Sch 10 to the Scheme. Clause 101(7) of the Scheme states that while such a policy does not bind the Council, the Council nevertheless must have due regard to the provisions of the policy and to the objectives which the policy was designed to achieve, before making its decision. The

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plaintiffs contend that there have been fundamental departures from the policy, and this is disputed by the defendants. (It seems remarkable that there could be a debate about whether or not the criteria in the policy has been departed from, at least in relation to some of the items, because they seemed to be measurable. This aspect should be considered during the adjournment.) 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". The context in which this was said will have to be considered at trial, but the words spoken at least lead to a possible inference that the policy was not considered by Mr Dykstra. The Scheme requires that due regard be had to the provisions of the policy. This point is only likely to avail the plaintiffs, however, if they can show that there has been a departure from the provisions of the policy. They allege that this is so, and therefore there is a serious question to be tried on that point. If the matter is reargued, this aspect may have to be revisited. I did not have 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.

42 There is no doubt, in my view, that if the plaintiffs succeed at trial in their arguments, then they will suffer irreparable injury for which damages will not be an adequate remedy if the injunction is not granted and the building proceeds.

43 In my view, the balance of convenience favours the grant of an injunction during the adjournment which I have allowed to permit the plaintiffs to consider, and if necessary to respond to, the affidavit of Mr Dykstra.

44 If the matter is listed for hearing again, close consideration should be given by the plaintiff to the matters raised in par 26 of Mr Dykstra's affidavit. When that paragraph is considered, and if it is not answered, then a different conclusion may be reached about the amenity argument, which I have dealt with above. As already mentioned, Mr Dykstra says in par 26 of his affidavit that even if the Fullarton home is built six metres from the rear boundary, the interference with the plaintiffs' views will not be significantly different from the interference with the views which will occur if the home is built 1.7 metres from the boundary. If that is so, then the plaintiffs will not succeed on that argument. 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. For present purposes, I have accepted that the building located as it is,

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may have a significant effect on views, and therefore amenity, compared with a building located six metres from the boundary.