DIK VERNOOIJ and TOWN OF KWINANA
[2009] WASAT 235
•1 DECEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DIK VERNOOIJ and TOWN OF KWINANA [2009] WASAT 235
MEMBER: MR J JORDAN (MEMBER)
HEARD: 10 NOVEMBER 2009
DELIVERED : 1 DECEMBER 2009
FILE NO/S: DR 176 of 2009
DR 188 of 2009
BETWEEN: ARIANA DIK VERNOOIJ
Applicant
AND
TOWN OF KWINANA
Respondent
Catchwords:
Town planning Development Refusal Retrospective planning approval Art installation of two corrugated iron figures 2.3 metres high Art installation of a size requiring development approval Art installation in front yard Added screening Impact on the neighbours and streetscape Local visual amenity Whether 'offensive, unsightly or otherwise likely to mar or spoil the locality'
Town planning Notice to remove development Art installation comprising two corrugated iron stylised figures
Legislation:
Planning and Development Act 2005 (WA), s 214(3), s 252(1), s 255(1)
Residential Design Codes of Western Australia (2008), cl 6.10, cl 6.10.2 A2.3, cl 6.10.2 P2, cl 6.10 P2
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)
Town of Kwinana Town Planning Scheme No 2, cl 2.4.2, cl 6.4.1(c), cl 6.19, cl 6.19.2, cl 8.2, c. 8.2.1, cl 8.2.2
Result:
DR 176 of 2009
Application for review allowed
The refusal of the Town of Kwinana dated 20 April 2009 set aside and conditional retrospective planning approval granted for the art installation as originally erected
DR 188 of 2009
The application for review allowed
The decision of the Town of Kwinana of 24 April 2008 to issue the notice pursuant to s 214(3) of the Planning and Development Act 2005 (WA) set aside
The direction dated 24 April 2009 issued by the Town of Kwinana pursuant to s 214(3) of the Planning and Development Act 2005 (WA) to remove the art installation and restore the land revoked
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Gillett
Solicitors:
Applicant: Self-represented
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant lodged two applications for review with the Tribunal. DR 76 of 2009 was an application for review of a refusal by the Town of Kwinana to grant retrospective planning approval for an art installation consisting of two corrugated iron, stylised human figures in the front yard at No 26 Pengilly Road, Orelia. DR 188 of 2009 was an application for review of a direction issued by the Town of Kwinana that the art installation be removed and the land restored as near as practicable to its condition before the development commenced.
The Town of Kwinana considered that, because of its size, material and location in the front yard of the applicant's house, the art installation would be visually intrusive, unsightly and would mar or spoil the locality and adversely affect the amenity of the neighbours.
In respect of DR 176 of 2009, the Tribunal found that the art installation would be visible from the adjoining houses and from a section of Pengilly Road to the west. The art installation would be an unusual sight in the locality, but would be of material found in additions to houses and sheds in the street. The Tribunal found that the view of the art installation would be limited because of vegetation, its orientation and being set back behind the building line of other houses in the street as part of the landscaping of the front yard.
The Tribunal concluded that the art installation would not be so visually intrusive as to mar or spoil the locality, or so unsightly as to have an adverse impact on local amenity. The Tribunal decided to grant a conditional retrospective planning approval for the art installation as erected.
In respect of DR 188 of 2009, because of the planning approval granted in DR 176 of 2009, the Tribunal decided to set aside the decision of the Town of Kwinana to issue the notice and to revoke the direction that the art installation be removed.
Introduction
Mrs Ariana Dik Vernooij (applicant) lodged applications for review pursuant to the Planning and Development Act 2005 (WA) (PD Act) of two decisions made by the Town of Kwinana (Council or respondent) in respect of development at No 26 (Lot 2) Pengilly Road, Orelia (site). The two applications were:
1)DR 176 of 2009: brought by the applicant pursuant to s 252(1) of the PD Act for review of the refusal by the respondent to grant retrospective planning approval for the erection of an art installation comprising two corrugated iron stylised figures in the front yard of the site.
2)DR 188 of 2009: brought by the applicant pursuant to s 255(1) of the PD Act for review of directions issued by the respondent pursuant to s 214(3) of the PD Act that the applicant remove the art installation within 60 days and restore the land as near as practicable to its state before the development commenced.
On 12 May 2009, the Tribunal ordered that these two applications for review were to remain separate proceedings but be heard together pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 10 November 2009 at the completion of the hearing, the Tribunal viewed the site and neighbouring street in the company of the applicant, counsel for the respondent and the respondent's planning witness.
Site and locality
The site has an area of about 445 square metres with a frontage of 12 metres to Pengilly Road at the northern end. The house on the site is one of 12 houses on the southern side of Pengilly Road between Littlemore Road to the east and Langridge Crescent to the west. The houses are built from boundary to boundary to give the appearance of a continuous 'terrace' of single storey houses. There are, however, variations in front setbacks. The applicant's house and the abutting house to the west, No 24, are of similar design set back about 18 metres from the front boundary with abutting carports on the common boundary attached to the front of each house. The pair of houses to the west, No 22 and No 20, are of similar design to the applicant's house, but are set back about 14 metres from the front boundary. This pattern of varying setbacks for pairs of houses is repeated to near the Langridge Crescent corner.
Adjoining the site to the east is No 28 Pengilly Road (No 28) on the corner of Littlemore Road. It faces and is set back about 12 metres from Pengilly Road. To the rear of the house on No 28 is a wall on the side boundary abutting the applicant's house. Forward of the applicant's house, No 28 is set back about 2 metres from the common boundary. In this set back wall are two windows each facing the applicant's property, one said to be to a kitchen and the other to a lounge room. The eaves of No 28 are about 0.5 metres higher than the eaves of the applicant's house because of a difference in ground levels.
On the boundary between No 28 and the site there was erected a 1.8 metre high fibro cement fence. The section of the fence in front on the two windows has been snapped off at ground level and removed.
The development
Both parties have described the development as an 'art installation'. Erected have been two stylised human figures, side by side, made of galvanised corrugated iron. One figure has a shape which indicates legs, and the other is based upon a generally triangular shape which might be interpreted as a skirt. The figures are about 2.3 metres high to the tip of the 'head' with the tips of an 'arm' of each nearly touching resulting in a combined width of about 5 metres. Each figure is attached to a tubular metal frame cemented into the ground, with the frame facing No 28. A rubberised strip covers the edges of the metal. The figures are parallel to and set back about 1 metre from the boundary with No 28 and are about 12.5 metres from the front boundary.
The applicant's evidence was that the art installation was erected to enter an art competition in October 2008. She now seeks planning approval for the art installation to remain as having inherent qualities as art and also because it provides some screening between the windows at No 28 and her yard.
Photographs of the figures and the site view revealed a screen attached between the two figures. This screen was found to be made of brushwood sticks wired together partly attached to the frames supporting the two figures. The applicant said that she wanted the attached screen approved as part of the development to improve the effectiveness of the art installation as a screen.
The applicant questioned the need for planning approval for what she considers to be pieces of her art. The Tribunal is satisfied that the figures are structures, or works, that require planning approval. 'Development' is defined in the Town of Kwinana Town Planning Scheme No 2 (TPS 2) as follows:
Development means in accordance with the Act the use including a material change in the use of development of any land and includes the erection, construction, alteration or carrying out as the case may be, of any building, excavation, filling or other works on the land.
In Stein, L: Principles of Planning Law (2008) at 138, it states:
To be of practical effect, the words 'work', 'building', and 'structure' have been defined according to a 'purposive' approach, which seeks to promote the purpose or object of the legislation rather than the literal translation. The underlying question that emerges from a purposive approach in the case of development control is whether it is in the public interest to include a particular work as coming within the definition of 'development'. The analysis is then related to the scale of the work and whether it is of such magnitude that it should be subject to development control in the public interest …
The public interest relates to the degree to which the subject matter has an effect on the locality, as defined in the concept of 'amenity' … (citations omitted).
The Tribunal formed the view that the art installation is of a size and materials that form a 'structure' or 'work' that requires planning approval and assessment under the applicable planning instruments.
Planning framework
The site is zoned Residential in TPS 2 with a density coding of 12.5/20. Clause 2.4.2 of TPS 2 states:
The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is reserved, zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, may refuse to approve any application for planning approval or may grant its approval unconditionally or subject to such conditions as it thinks fit.
Clause 6.4.1(c) of TPS 2 states:
Unless otherwise provided for in the Scheme the development of land for any other residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes and the schedules to those codes.
Clause 6.19 of TPS 2 'Division 16 Appearance of Buildings' states:
…
6.19.2A person shall not place or cause, allow or permit to be placed on any buildings or land any particle, object or thing which is visible from any other land or building and which is, in the opinion of the Council, offensive, unsightly or otherwise likely to mar or spoil the locality.
6.19.3In the case of dispute, the applicant may within 30 days request the Council to seek the expert opinion of the Royal Australian Institute of Architects whose recommendation may be accepted by Council with or without modification …
In its notice of refusal, the respondent referred to the development as a 'use not listed art installation'. At the hearing, Counsel for the respondent said that the respondent now considered the proposed development not to be a 'use'. The respondent's submissions and the evidence of its witness would rely on the development being a work or structure which was incidental to the use of the dwelling on the site and appropriate to be assessed as an external fixture under the Residential Design Codes of Western Australia (2008) (Codes).
Clause 6.10.2 P2 of the Codes under the heading Performance Criteria states:
Solar collectors permitted as of right and other external fixtures that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
Clause 6.10.2 of the Codes under the heading Acceptable Development states at A2.3:
Other external fixtures that:
(i)are not visible from the primary street;
(ii)are designed integrally with the building; or
(iii)are located so as to not be visually obtrusive.
Clause 8.2 of TPS 2 is concerned with offences under the Scheme. Clause 8.2.1 requires that development comply with Scheme provisions and all consents required be granted and issued. Clause 8.2.2 of TPS 2 provides for the serving of notices on people who fail to comply. Section 214(3) of the PD Act provides that if development has been undertaken in contravention of a planning scheme, a written direction may be given to the owner requiring the development to be pulled down and the land restored as nearly as practicable to its condition immediately before the development started.
Decisions of the respondent
DR 176 of 2009
The respondent first refused an application for retrospective planning approval of the art installation on 20 February 2009. The respondent further resolved:
… that Council advise the proponent that Council's Scheme does provide the right for an applicant to seek reconsideration of a refusal by Council if a request is made in writing … While Council takes the strong view that the structure should be removed and its position is unlikely to change, it is considered fair that the applicant be given the opportunity to demonstrate otherwise as part of the reconsideration and that Council may be influenced by a positive recommendation from the Royal Institute of Architects [sic] about the merits of the structure.
The applicant approached the Royal Australian Institute of Architects and the State Manager, in an undated letter, wrote to the respondent stating that the Chapter President, Mr Rod Mollett LFRAIA, had inspected the installation on 9 and 10 March 2009. The letter set out Mr Mollett's opinion, which included:
From an aesthetic viewpoint I find the sculpture an interesting art piece, an expression of individual thought and providing visual interest when viewed from outside the site boundaries. Unfortunately the installation may impact on the adjoining property to the east in that the substantial frame is the primary element visible. This issue is mitigated by existing shrubbery and could be further reduced by reinstating of the boundary fence. I do not believe the adjoining owner's outlook is adversely affected given the west-facing windows appear not to be in significant living spaces. It could be argued that the installation provides some shadow and screening to the west facing windows.
With this submission from the Royal Australian Institute of Architects and further comment from the applicant, the respondent reconsidered the matter at its meeting of 8 April 2009. In its decision issued on 20 April 2009, the respondent again resolved to refuse the application for the reasons:
1.The proposal is deemed to not comply with Division 16, Appearance of Buildings, under Council's Town Planning Scheme No 2.
2.The use does not comply with clause 6.10.2 External Fixtures A 2.3 of the Residential Design Codes.
DR 188 of 2009
In its decision of 11 February 2009, the Council further resolved:
That Council, in accordance with clause 8.2 of the Scheme and section 214(3)(a) of the Planning and Development Act 2005, issues written direction to the landowner of Lot 2 Pengilly Road, Orelia to remove the said structures within 60 days of the date of the written direction.
On 24 April 2009, the Council wrote to the applicant referring to the refusal of 8 April 2009, stating:
In light of Council's decision I must formally advise you under section 214(3) of the Planning and Development Act 2005 to:
1.Remove the 'art installations' within 60 days from the date of this letter.
2.Restore the land as near as practicable before the development commenced to the satisfaction of the local authority [sic].
Issues
The issues identified by the respondent were:
1)whether the proposed art installation is consistent with the requirements and objectives of TPS 2; and
2)whether the proposed art installation is consistent with the requirements and objectives of the Codes.
Discussion
Issue 1: Whether the proposed art installation is consistent with the requirements and objectives of TPS 2
The Tribunal considers it not unusual for objects such as fountains, statues of various types and art objects to be part of the landscaping of front yards. Most, however, are of a size that does not warrant an application for planning approval. The applicant's art installation is of a size that requires a planning application so that it might be assessed against the planning controls relevant to this Residential zoned locality.
It was the evidence of Mr Paul Nielson, a town planner at the Town of Kwinana who appeared as a witness for the respondent, that the Council is concerned not just with this art installation, but with the location of any structures or external fixtures in front yards. Council does not approve such development in front yards because it is considered visually intrusive, to spoil a locality when visible from the street and to have an adverse impact on the amenity of neighbouring properties. He considered the Pengilly Road streetscape to generally be open and free of 'unsightly' structures. Mr Nielson contended that approving the development would set an undesirable precedent within the residential zone.
In respect of the concern about precedent, the Tribunal has formed the view that this art installation as part of the landscaping can be distinguished from external fixtures that are simply utilitarian devices associated with a house, such as a satellite dish. The art installation was conceived and erected as an art piece. It was entered into the 'Artbound Sculpture Award' by the applicant in October 2008, as revealed in an email from the Artist Liaison Assistant of 'Sunset Events' dated 5 November 2008. The applicant is a practising artist, as demonstrated by the exchange she had with the respondent on the use of a studio in her backyard and her comments about potting at another site.
If others wish to erect a structure in their front yard and simply claim it as an artwork, then, in the opinion of the Tribunal, citing the applicant's art installation as a precedent would not be sufficient. More would have to be done to establish that a structure was conceived as an art piece by an artist, as occurred in this instance.
The art installation should not be approved, however, simply because of the applicant's effort in creating it and her emotional attachment to it. TPS 2 at cl 2.4.2 requires consideration of orderly and proper planning and the preservation of the amenity of this residential locality. More particularly, cl 6.19.2 of TPS 2 provides that the art installation not be permitted if it is visible from any other land or buildings and is considered to be 'offensive, unsightly or otherwise be likely to mar or spoil the locality'.
In assessing the impact of the art installation on the locality, as required by cl 6.19.2 of TPS 2, the impact of it on the streetscape has been considered. Photographs supplied by the parties and the site visit confirm that the art installation becomes visible about 100 metres to the west, just beyond the junction of Paul Way with Pengilly Road. Beyond that distance, the art installation is obscured by street trees and vegetation in other front yards. From the road in front of the site, there are only glimpses of the art installation from various points because of its orientation and the vegetation. From the east, the art installation is obscured by No 28.
Houses in the street are brick or brick render and tile. Common, however, are metal roofed patios and metal sheds visible from the roadway, including in the front yard of No 28 next door. The metal used in the art installation is therefore not considered to be visually intrusive in this locality.
The height of the art installation is also considered not to 'mar or spoil' the locality. From the visual evidence, it is apparent that the art installation is higher than the eaves of the applicant's house, but because of the difference in elevation, appears to be no higher than the eaves of the house at No 28 which forms the backdrop to the installation.
The art installation is visually intrusive because its shape is unusual in this residential location. This shape might not be to the taste of some people, but the appearance as part of the landscaping is not considered by the Tribunal to be of a form that makes it unsightly in that part of the streetscape from where it is visible.
Clause 6.19.2 of TPS 2 also requires consideration be given to the impact of the art instillation on the neighbouring land. This is particularly pertinent in respect of No 28, as the side wall of that house with the two windows is about 3 metres from the structures and faces the supporting frames.
At present, the section of fence between the art installation and No 28 is missing. The Tribunal understands that a dispute between the applicant and the owners of No 28 over the dividing fence is still being resolved. Once that is resolved and a fence is erected, any view of the structures would be reduced to the arm and head shapes higher than 1.8 metres, or less if the 2.1 metre high fence being discussed is erected. The view of the art installation from No 28 would be unusual, but it does not follow that the neighbour's view would be so affected as to warrant refusal. This is considered to be particularly so in circumstances where the view under consideration is into and across the yard of an adjoining private residence. It is not reasonable to expect that, in this instance, the art installation be removed so that there might be an uninterrupted view of and across a neighbouring yard.
The Tribunal found the view to the art installation from No 24 to the west would be only from the front yard. The art installation would be visible against the backdrop of the side wall of No 28 and would not intrude into any desirable outlook from No 24.
The Tribunal has formed the view that the development, although visible from other land and buildings and the street, is not offensive, unsightly or otherwise likely to mar or spoil the locality. In that regard, therefore, it is considered that the art installation is consistent with the requirements and objectives of TPS 2 which find expression in cl 2.4.2 and cl 6.19.2.
Issue 2: Whether the proposed art installation is consistent with the requirements and objectives of the Codes
Mr Nielson emphasised the three acceptable development criteria at cl 6.10.2 A2.3 of the Codes. The criteria are expressed as alternatives. The first two require, respectively, that the development not be visible from the street, whereas the art installation is visible, or be designed integrally with the building, which the art installation is not. The third alternative of the criteria is that the art installation be located so as not to be visually obtrusive.
As concluded in the discussion under issue 1 above, the Tribunal formed the view that, while the art installation or parts of it will be visible to the neighbours on either side, the art installation will not be so visually intrusive as to warrant refusal.
The art installation is also visible from the west from a section of Pengilly Road. It will, however, be set back behind the building line of No 28. The Tribunal considers that the visual intrusion of the art installation into the streetscape is sufficiently limited as to not lead to a conclusion that the development should be refused.
As stated in cl 6.10 of the Codes, the acceptable development criteria are one way of meeting the associated performance criteria. The performance criteria for external fixtures are found at cl 6.10.2 P2 of the Codes. Required to be considered is whether the external fixture detracts from the street or the visual amenity of residents or neighbouring properties.
In this regard, the conclusions reached under issue 1 above are again relevant. That is, the art installation does not mar the streetscape or have an adverse impact on the visual amenity of the neighbours. The Tribunal is of the view that, in this instance, the art installation as originally erected would satisfy performance criteria at cl 6.10.2 P2 of the Codes.
At the hearing, the applicant made submissions in support of an approval of the screen subsequently erected between the two figures of the art installation. She said the screen was necessary to increase the visual and noise barrier between herself and the neighbours at No 28.
This screen comprises sticks wired together, as is available from hardware stores. It was seen on the site visit that the added screen was not an integral part of the structures, was poorly attached and was sagging. This additional screening was not conceived as an original part of the design, is an afterthought and is considered by the Tribunal not to be of sufficient standard to be approved as part of this art installation.
Conclusion
Both cl 2.4.2 of TPS 2 and the Codes at cl 6.10.2 P2 refer to the impact of a development on the amenity of a locality. In respect to the impact on the local amenity, the art installation was not part of the locality prior to October 2008. The art installation has now been added to the locality. The Tribunal has formed the view that, as set out in the discussion under issue 1 and issue 2 above, the art installation is not so visually intrusive as to result in sufficient adverse impact on the local amenity to warrant its removal. The Tribunal has found that, although it is visible from neighbouring properties and the street, the art installation as part of the landscaping of the front yard is not so unsightly as to mar or spoil the locality.
In respect of DR 176 of 2009, the Tribunal has decided to allow the application and grant retrospective development approval. The Tribunal has further determined that the wooden screen attached between the two figures is not of sufficient standard to be approved as part of the art installation.
In respect of DR 188 of 2009, given the conclusion reached in respect of DR 176 of 2009, the Tribunal has determined that the decision of the respondent to issue the notice is set aside and the direction to remove the art installation and restore the land be revoked.
Conditions
As ordered by the Tribunal, the respondent produced a schedule of conditions, without prejudice to its position, it would want imposed were the Tribunal inclined to approve the application. The applicant objected to all four of the conditions listed by the respondent.
Condition 1 reads:
The maximum height of the art installation be reduced and maintained at a height no greater than 1.8 metres from the existing ground level.
The applicant argued that from Pengilly Road, the view of the art installation was minimal from the west and not visible at all from the east. She considered that No 28 would still receive adequate light. As an artist, she considered the requirement to alter the shape of the art installation as offensive.
The Tribunal has considered the art installation as installed in light of the planning framework and the submissions of the parties. The Tribunal has concluded that planning approval can be granted for the two figures in the art installation as erected. Condition 1 as requested is not supported.
Condition 2 reads:
The applicant provides to the respondent certification by a suitably qualified structural engineer that the art installation as altered in accordance with condition 1 is structurally sound.
The applicant said the 'engineer' she consulted when the art installation was erected a year ago did a good job and so why should a certificate be required now.
The Tribunal had no evidence of the qualifications of the engineer consulted by the applicant when the structures were installed. There was also no evidence of whether the structures were actually structurally sound. The size, materials and location of the art installation require that they be structurally sound. Condition 2 should be altered to require that there be a certificate from a suitably qualified structural engineer that the art installation as erected is structurally sound. If that certification is not provided within a reasonable time, and the 60 days the original notice required for the removal of the art installation would appear appropriate, it is open to the Council to again serve on the applicant a notice pursuant to s 214(3) of the PD Act for failure to comply with a planning approval.
Condition 3 reads:
Any alterations or additions to the art installation other than that specified in condition 1 shall require approval by the Town of Kwinana prior to those alterations or additions being undertaken.
The applicant objected to having to seek the permission of the Council to do anything to the art installation. She expressed concern about the 'subjectivity' of the Council's approach to her art installation.
The Tribunal considers that minor work on the art installation need not require permission. However, any material change in the dimensions or appearance might alter the stability of the art installation and its impact on the visual amenity of the locality and so should be subject to an application for approval and be assessed. Condition 3 can be amended to reflect this.
Condition 4 reads:
The applicant must plant and maintain vegetation to a minimum height of 1.8 metres from the existing ground level immediately inside the eastern and western boundaries of the front yard of the property so that the art installation is not visible from the front yards of the neighbouring properties at [No] 24 and [No] 28 Pengilly Road.
The applicant referred to the planting she has already undertaken and considers the Council impatient to insist on plants 1.8 metres high immediately. The applicant also made the comment that plants placed between the art installation and the common boundary with No 28 do not survive.
The Tribunal notes that the respondent refers to the view of the art installation from the front yard of No 28 but, at best, glimpses only would be available because of exiting vegetation and the shed next door. The landscaping undertaken to date is considered by the Tribunal to be adequate in the circumstances. In respect of the boundary with No 28, the Tribunal would make the comment that when the fence is replaced, this will achieve the same objective as the suggested planting. The Tribunal would encourage the parties and the neighbours at No 28 to work constructively together to have a fence erected if it is desired that there be additional screening along this common boundary.
The Tribunal has concluded from its viewing of the site that the existing view of the art installation and the planting of the applicant to date are acceptable in the circumstances. The Tribunal has concluded that it would be appropriate to impose only required conditions amended as discussed.
Orders
DR 176 of 2009
1.The application for review be allowed.
2.The decision of the Town of Kwinana issued 20 April 2009 is set aside and retrospective planning approval is granted for the art installation comprising the two metal structures as erected in the front yard at No 26 Pengilly Road, Orelia, subject to compliance with the following conditions:
1)The applicant must provide to the respondent within 60 days of the date of this decision certification by a suitably qualified structural engineer that the two figures in the art installation as erected are structurally sound.
2)The additional screening erected between the two metal figures is not approved as part of the art installation. Any material alterations or additions to the art installation shall require approval by the Town of Kwinana prior to those alterations or additions being undertaken.
DR 188 of 2009
1.Having regard to the planning approval granted in the matter of DR 176 of 2009, the application for review is allowed.
2.The decision of the Town of Kwinana of 24 April 2008 to issue the notice pursuant to s 214(3) of the Planning and Development Act 2005 (WA) is set aside.
3.The direction dated 24 April 2009 issued by the Town of Kwinana pursuant to s 214(3) of the Planning and Development Act 2005 (WA) to remove the art installation and restore the land is revoked.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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