DI TORO and CITY OF BAYSWATER
[2006] WASAT 383
•16 NOVEMBER 2006
DI TORO and CITY OF BAYSWATER [2006] WASAT 383
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 383 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:261/2006 | 16 NOVEMBER 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 15/11/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The applicant is granted leave to amend the application for review to include that he is prepared to amend the plan for the proposed development by relocating Unit 1 further to the rear The application for review is allowed Condition 13 of the respondent's approval of 30 June 2006 is deleted and replaced with the following condition: "13. Unit 1 of the proposed development is to be located on Lot 116 so that the front edge of the parapet wall of Unit 1 commences level with a point 200 millimetres inside the southwest edge of the laundry window of No 38 Salisbury Street" A new condition 14 is imposed to read: "14. The parapet wall of Unit 1 and the 1800 high screen wall on the boundary are to be finished as applied for to the satisfaction of the City of Bayswater" There be no order as to costs | ||
| B | |||
| PDF Version |
| Parties: | RENATO DI TORO CITY OF BAYSWATER |
Catchwords: | Town planning Development Condition of approval Two grouped dwellings Condition requiring side wall to be set back one metre from boundary Wall on boundary applied for Impact on amenity of neighbour Residential Design Codes of Western Australia (2002) boundary wall provisions Boundary wall performance criteria Town planning scheme policy Boundary Walls in Residential Areas Acceptable development standards Setback from neighbour's kitchen window Relocation of wall on boundary acceptable to parties |
Legislation: | City of Bayswater Town Planning Scheme No 24 Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia (2002), cl 2.6, cl 2.6.2(i), cl 3.3.2, cl 3.3.2A2 State Administrative Tribunal Act 2004 (WA), s 9, cl 27 |
Case References: | Nil |
Orders | 1. The applicant is granted leave to amend the application for review to include that the applicant is prepared to amend the plan for the proposed development before the Tribunal by relocating unit one further to the rear of Lot 116 so that the front edge of the parapet wall commences level with a point 200 mm inside the south west edge of the laundry window of No 38 Salisbury Street.,2. The application for review is allowed. ,3. Condition 13 of the respondent's approval of 30 June 2006 is deleted and replaced with the following condition:,"13. Unit 1 of the proposed development is to be located on Lot 116 so that the front edge of the parapet wall of unit one commences level with a point 200 mm inside the south west edge of the laundry window of No 38 Salisbury Street.",4. A new condition 14 is imposed to read:,"14. The parapet wall of unit 1 and the 1800 high screen wall on the boundary are to be finished as applied for to the satisfaction of the City of Bayswater.",5. There be no order as to costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DI TORO and CITY OF BAYSWATER [2006] WASAT 383 MEMBER : MR J JORDAN (MEMBER) HEARD : 16 NOVEMBER 2006 DELIVERED : Edited reasons delivered extemporaneously on 16 NOVEMBER 2006 FILE NO/S : DR 261 of 2006 BETWEEN : RENATO DI TORO
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning Development Condition of approval Two grouped dwellings Condition requiring side wall to be set back one metre from boundary Wall on boundary applied for Impact on amenity of neighbour Residential Design Codes of Western Australia (2002) boundary wall provisions Boundary wall performance criteria Town planning scheme policy Boundary Walls in Residential Areas Acceptable development standards Setback from neighbour's kitchen window Relocation of wall on boundary acceptable to parties
(Page 2)
Legislation:
City of Bayswater Town Planning Scheme No 24
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2002), cl 2.6, cl 2.6.2(i), cl 3.3.2, cl 3.3.2A2
State Administrative Tribunal Act 2004 (WA), s 9, cl 27
Result:
The applicant is granted leave to amend the application for review to include that he is prepared to amend the plan for the proposed development by relocating Unit 1 further to the rear
The application for review is allowed
Condition 13 of the respondent's approval of 30 June 2006 is deleted and replaced with the following condition: "13. Unit 1 of the proposed development is to be located on Lot 116 so that the front edge of the parapet wall of Unit 1 commences level with a point 200 millimetres inside the southwest edge of the laundry window of No 38 Salisbury Street"
A new condition 14 is imposed to read: "14. The parapet wall of Unit 1 and the 1800 high screen wall on the boundary are to be finished as applied for to the satisfaction of the City of Bayswater"
There be no order as to costs
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr D Martin
Solicitors:
Applicant : Self-represented
Respondent : City of Bayswater
Case(s) referred to in decision(s):
(Page 3)
Nil
(Page 4)
Edited transcript of reasons given ex tempore
1 This is the matter of DR 261 of 2006, di Toro and the City of Bayswater heard on 16 November 2006. I now hand down my decision and the reasons for that decision.
Introduction
2 On 30 June 2006, the City of Bayswater (the respondent) granted conditional approval for the development of two single storey group dwellings at No 36 (Lot 116) Salisbury Street, Bayswater (the site).
3 The site is orientated south-west to north-east with Salisbury Street at the south-west boundary. The group dwellings, Unit 1 and Unit 2, are side by side, each commanding half, or 10.06 metres, of the frontage.
4 The application sketches showed Unit 2 included a garage at the front with a parapet wall on the side south-eastern boundary of the site. This wall on the side boundary was approved by the respondent.
5 The proposed development also included in Unit 1 a parapet wall on the north-west side boundary which is the common boundary with 38 Salisbury Street. The application showed that this wall would start 15.7 metres from the front boundary and be 8.8 metres long and 2.7 metres high. The first 1.5 metres is the side wall of an entry porch and the remaining 7.3 metres would be the wall to a bedroom and ensuite. In approving the proposed development, the respondent imposed as condition 13 the following:
"That unit 1 wall comprising bedroom 1, ensuite and porch be set back 1 metre from the boundary."
6 Mr Renato di Toro, the applicant acting as agent for the owner, applied to the Tribunal for review of condition 13 to allow the wall applied for.
Planning control
7 The site is zoned medium density residential R25 under the respondent's Town Planning Scheme No 24 (TPS 24). Under TPS 24, the Residential Design Codes of Western Australia (2002) (Codes) apply to residential development. Under the Codes are provisions for boundary walls found at Element 3, cl 3.3.2.
(Page 5)
8 Clause 2.6 of the Codes provides that a local government may adopt local planning policies for boundary walls that provide requirements alternative to the need for boundary walls to be considered against performance criteria of Element 3 following neighbour consultation. Clause 2.6.2(i) of the Codes provides that the planning policy may be more or less stringent than the Codes.
9 In September 2003, the respondent adopted planning policy TP-P 2.13, Boundary Walls in Residential Areas (policy TP-P 2.13).
10 Relevant provisions of policy TP-P 2.13 can be summarised to provide that a boundary wall shall not be deemed as of right as is otherwise provided for under cl 3.3.2 of the Codes. The applicant is required in the first instance to seek the adjoining land owner's written comments in relation to the proposed parapet wall; and where the neighbour objects and the proposed boundary wall does not comply with the acceptable development criteria in cl 3.3.2A2 of the Codes the proposal shall be referred to the next available council meeting for consideration.
11 The respondent then determined the matter in the light of the submissions received from the neighbour and the applicant and included condition 13 because it considered the proposed parapet wall of Unit 1 would impact on the amenity of No 38 Salisbury Street.
Submissions from the parties
12 Mr Rob Gander, the neighbour who resides at No 38, objected to the application. Mr Gander appeared as a witness. He said the proposed wall would be located outside his kitchen window and he considered the parapet wall would be detrimental to his amenity as it would affect the amount of light entering the kitchen and would have an adverse impact on the view from the kitchen and adjoining dining area. The location of the parapet wall would adversely impact on the enjoyment and use of these frequently used rooms.
13 Mr Gander's witness statement also said at par 9:
"It is worth noting that we are supportive of a parapet wall in an alternative location where such a location would have a less detrimental impact upon light and visual amenity to the habitable rooms of our property."
(Page 6)
14 Mr Gander said that privacy was no longer an issue with him, but he was concerned that the parapet wall, were it to be allowed, be finished to an appropriate standard and that his fences be allowed to remain. In respect of the fences the Tribunal notes that condition 6 of the approval issued by the respondent requires that:
"This approval does not authorise any interference with dividing fences, if in the course of the development any part of a dividing fence is damaged or removed, the applicant shall repair or replace the fence at the applicant's cost."
15 A witness statement was also filed by Councillor Louis Magro. Councillor Magro was not available to be examined on his witness statement. The Tribunal noted that Councillor Magro's statement indicated that the respondent had weighed up technical advice from the respondent's planners and the submission of Mr Gander on light and visual impact and had imposed condition 13. Councillor Magro's statement also included at par 12 the comment:
"It is worth noting that Council was supportive of a parapet wall in an alternative location when such a location would have a less detrimental impact upon light and visual amenity to the habitable rooms of the adjoining property."
16 Mr di Toro filed a plan from a licensed surveyor, plan J/N161641 dated 9 November 2006, which showed the position of No 38 and the windows in the side wall relative to the boundary of the site. Mr di Toro marked on that plan where the parapet wall as shown in the application sketch would commence relative to No 38. It was agreed between the parties that this would be level with approximately halfway along the kitchen window of No 38.
17 Mr di Toro, when examining Mr Gander, asked him if he would have the same objections if the parapet wall were to be relocated away from in front of the kitchen window. Mr Gander properly said that he would have to consider the change rather than answer when under examination.
18 The Tribunal adjourned to enable Mr di Toro to explain his suggestion to Mr Gander and to Mr Martin, the agent who appeared for the respondent. On reconvening, Mr di Toro asked for leave to amend the plan before the Tribunal so that the parapet wall would commence adjacent to the laundry window which is to the rear of the kitchen window on No 38.
(Page 7)
19 Mr Gander and Mr Martin, when asked said they had no objection to the plan before the Tribunal being amended in this way. Mr Gander was then asked whether he would have the same concerns about a parapet wall as located on the amended plans, he said that he would not have the same concerns about light and visual amenity if the wall was relocated to the amended position.
Conclusion
20 Section 9 of the State Administrative Tribunal Act 2004 (WA) states:
"9. Main objectives of the Tribunal
The main objectives of the Tribunal in dealing with matters within its jurisdiction are –
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c) to make appropriate use of the knowledge and experience of Tribunal members."
"27. Nature of the hearing
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time that the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds for review set out
- in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision."
22 Bearing in mind these responsibilities as set out in the State Administrative Tribunal Act 2004 (WA), the Tribunal has had regard to the comments made by Mr Gander and Councillor Magro at par 9 and par 12 respectively in their submissions, and the statement of Mr Gander that his concerns about light and view fell away with the relocation of the parapet wall as now applied for by Mr di Toro.
23 Bearing those submissions in mind, the Tribunal has decided to approve the application as amended.
Orders
1. The applicant is granted leave to amend the application for review to include that the applicant is prepared to amend the plan for the proposed development before the Tribunal by relocating Unit 1 further to the rear of Lot 116, so that the front edge of the parapet wall commences level with a point 200 millimetres inside the south-west edge of the laundry window of No 38 Salisbury Street.
2. The application for review is allowed.
3. Condition 13 of the respondent's approval of 30 June 2006 is deleted and replaced with the following condition:
"13. Unit 1 of the proposed development is to be located on Lot 116 so that the front edge of the parapet wall of Unit 1 commences level with a point 200 millimetres inside the south-west edge of the laundry window of No 38 Salisbury Street."
4. A new condition 14 is imposed to read:
"14. The parapet wall of Unit 1 and the 1800 high screen wall on the boundary are to be finished as applied for to the satisfaction of the City of Bayswater."
5. There be no order as to costs.
(Page 9)
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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