Du Heaume and City of South Perth
[2010] WASAT 111
•30 JULY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DU HEAUME and CITY OF SOUTH PERTH [2010] WASAT 111
MEMBER: MR P McNAB (MEMBER)
MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 JULY 2010
FILE NO/S: DR 281 of 2009
BETWEEN: ROHAN DU HEAUME
Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning Development application Residential dwelling Retrospective approval sought for front steps and oversize rear boundary wall Whether steps required development approval Tribunal held that they did require approval Front steps partially encroached on crosseasement Easement a registered right of carriageway Rear neighbour objecting to both developments Tribunal determining that amenity of neighbour in terms of the rights flowing from the easement was relevant criterion Tribunal finding that the steps were a significant material encroachment on neighbour's amenity Rear boundary wall found to be excessively dominant and have unattractive visual impact Whether neighbour's change of mind on rear wall relevant Tribunal holding that a change of mind essentially irrelevant to task of merits review Planning framework required assessment of neighbours' current views Application for review dismissed and decisions under review affirmed
Legislation:
City of South Perth Town Planning Scheme No 6 , cl 1.6, cl 7.1(1), cl 7.1(2), cl 7.5, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.2.6
State Administrative Tribunal Act 2004 (WA), s 31, s 60(2)
Town Planning and Development Act 1928 (WA)
Transfer of Land Act 1893 (WA), s 65(2), Ninth Schedule
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr L Anderson (Representative)
Solicitors:
Applicant: N/A
Respondent: City of South Perth
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Glenbrook Nominees Pty Ltd and City of Perth [2009] WASAT 3
Williams v City of St Kilda (1987) 29 APA 141
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter was a review of the refusal by the City of South Perth to give retrospective planning approval for two development proposals. These were applications for approval for the erection of some front steps and a rear boundary wall in respect of a residential dwelling in South Perth.
The front steps partially encroached upon a crosseasement, namely a registered right of carriageway, and the rear owner (for whose benefit the easement existed) objected to the development. The applicant, Mr du Heaume, submitted that development approval was not needed for the steps. The Tribunal disagreed, holding that the front steps did need planning approval under the City of South Perth's town planning scheme.
The Tribunal concluded that the issue of development in land held under an easement should, in this case, be determined by the potential loss of amenity to a neighbour in terms of any material loss of their rights to enjoy their property interest, namely access to their land.
Here, the Tribunal concluded that the development would cause significant diminution of amenity, and refused planning approval for the front steps in their current form.
On the rear boundary wall, the same neighbour had changed her mind and was now opposed to the development. Another neighbour, less affected by the wall, supported the development. The planning framework generally favoured 1.8 metre high walls and fences, and focused on the loss of amenity to immediate neighbours from such matters as the 'excessively dominant and unattractive visual impact' of such structures. The Tribunal said that:
The role of the Tribunal is to achieve the correct and preferable decision in the review. That task includes ascertaining the neighbour's current views in the context of making a judgment about amenity. That these views come about because of an arguably understandable change of mind on her part is essentially irrelevant to the Tribunal's task. What matters is the expression of a neighbour's view on the matters contemplated in the planning framework.
The Tribunal concluded that the rear boundary wall in the form presented should not be approved as it 'significantly diminish[ed] local amenity'.
The application for review was therefore dismissed.
Introduction
The application for review, dated 17 July 2009, was lodged with the Tribunal by Mr Rohan du Heaume (applicant) against a decision of the City of South Perth (respondent or City) on 26 May 2009 to refuse an application for retrospective planning approval for certain additions (namely, front steps and railing, and increased height of a rear boundary fence or wall) to a single house at No 10 (Lot 505) Anthony Street, South Perth (subject land).
Further details of these two structures are set out in the summaries of the parties' respective positions which are set out below.
The respondent's formal reasons for refusal were:
(1)The steps have been constructed partially within the access way easement, which is in favour of the rear property on the battleaxe lot. The accessway is required to be clear of any obstruction. The intrusion [in] this area is inconsistent with the provisions of clause 7.5 (d) of [the City's] Town Planning Scheme No. 6 (TPS6) relating to cause 3.7.2 of the Western Australian Planning Commission policy 'residential subdivision'.
(2)The 3.27 metre proposed fence height substantially exceeds the prescribed 1.8 metre maximum, and Council considers that the fence will have an adverse visual amenity impact on the adjoining property. The fence is inconsistent with the provisions of Clause 8 of Council Policy P350.7 'Fences higher than 1.8 metres['].
(3)Having regard to the matter identified above, the proposed development conflicts with the 'Scheme Objectives' identified in Clause 1.6 of the TPS6.
(4)Having regard to the matter identified above, the proposed development conflicts with the 'Matters to be Considered by Council' in Clause 7.5 of the TPS6.
Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal, at one point, invited the City to reconsider its decision.
At a Council meeting on 15 December 2009, the application for planning approval was again refused, but for modified reasons, as follow:
(a)The proposed development (steps to the front verandah) is constructed partially over an accessway easement assigned for common use by the subject property as well as the rear dwelling. Additionally, the proposed development does not have the mutual consent of both property owners. The accessway is required to be clear of all obstructions with a view to enable safe vehicle manoeuvring.
(b)The 3.27 metre high proposed fence substantially exceeds the prescribed 1.8 metre maximum height. Having regard to the amenity of the adjoining rear property, the fence conflicts with the provisions of Clause 8 of Policy P350.7 'Fences higher than 1.8 metres'.
(c)Having regard to the reasons (i) and (ii) identified above, the proposed development conflicts with Sub-clauses (a), (j), (i) and (s) of Clause 7.5 'Matters to be Considered by Council' of Town Planning Scheme No. 6 (TPS6).
(d)Having regard to the reasons (i) and (ii) identified above, the proposed development conflicts with Sub-clause (2)(f) of Clause 1.6 'Scheme Objectives' of TPS6.
Subject land
The subject land is No 10 (Lot 505) Anthony Street, South Perth. It is all that land comprised in Certificate of Title Volume 2518, Folio 48 (on deposited plan 30628). It has an area of 547 square metres, with a frontage to Anthony Street of 21.33 metres.
Lot 505, which was part of an earlier battleaxe subdivision to create a rear Lot 506 (of 530 square metres), is oriented northeast to a southwest frontage at Anthony Street. Importantly, it is burdened by a 2 metre wide right of carriageway easement on its southeastern boundary to the benefit of Lot 506, and there is a similar and adjoining 2 metre wide right of carriageway easement which burdens Lot 506 to the benefit of the subject land. This arrangement is sometimes known as a 'cross-easement'.
The total width of the right of carriageway easement is thus 4.0 metres, and it allows access to the garages of both properties at the rear.
The land, the subject of the easement, is essentially comprised of a paved driveway, which narrows to 3.0 metres wide along most of the southeastern side of the double storey residence on the subject land. It is adjoined by a 1.0 metre wide lavender hedge within the easement. As will appear below, this hedge arises out of a condition imposed by the City for a 1 metre landscaping strip.
Legislative and policy framework
The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential' in the City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme). It has a residential density coding of R15.
Of particular relevance to this matter are the following instruments:
a)the Transfer of Land Act 1893 (WA) (TL Act);
b)the Western Australian Planning Commission - Policy No DC 2.2 - 'Residential Subdivision' (DC 2.2); and
c)the City of South Perth General Guidelines for Residential Development - Policy P350.7 - 'Fencing and Retaining Walls' (P350.7).
Details of these various instruments (including TPS 6), which have also been referred to in the 'Introduction' above, are set out below.
Respondent's position
The position of the respondent is outlined in its statement of issues, facts and contentions (respondent's SIFC) dated 5 February 2010. In summary, the respondent contends that:
a)The front steps do not satisfy the applicable provisions of the Scheme for the following reasons:
i)the steps have been constructed over an easement providing access to the rear property at 10A Anthony Street;
ii)the erection of the steps prevents the owner and/or occupiers of 10A Anthony Street from passing over that part of the easement upon which the steps have been erected, contrary to s 65(2) and the Ninth Schedule to the TL Act;
iii)the owner of the property at 10A Anthony Street has objected to the steps being erected over the easement; and
iv)the erection of the steps is inconsistent with cl 3.7.2 of DC 2.2, which requires battleaxe lots to be provided with an access leg of 4 metres in width.
b)The rear boundary fence does not satisfy the applicable provisions of the Scheme or P350.7 for the following reasons:
i)pursuant to cl 8 of P350.7, the City will not normally approve a fence with a height greater than 1.8 metres without the written agreement of the affected adjoining neighbour;
ii)the affected adjoining neighbour has objected to the height of the fence;
iii)the fence has an adverse visual impact on the adjoining rear property which is inconsistent with cl 8 of P350.7; and
iv)the scale and bulk of the fence is not visually in harmony with neighbouring existing buildings in that the neighbouring fences are approximately 1.8 metres in height.
Applicant's position
The position of the applicant is outlined in his statement of issues, facts and contentions (applicant's SIFC) dated 24 February 2010. In summary, the applicant contends that:
a)As to the front steps:
i)the City should abide by the advice given at the time of the original building application that planning approval was not required for the front steps;
ii)there is no City planning policy governing steps;
iii)the front steps are minor in comparison to the majority of exempt items identified in cl 7.1(2) of TPS 6;
iv)several of these items in cl 7.1(2) of TPS 6 would normally incorporate steps in their design;
v)the CEO of the City had declared in writing that an item within the easement which does not obstruct the sightlines at vehicle access points and street corners, as required by cl 6.2.6 of the Residential Design Codes of Western Australia (2008) (Codes), does not require planning approval;
vi)the steps are not directly connected to the building;
vii)the steps are not structural in nature, in the sense that the dwelling can stand alone without the addition of the steps;
viii)planning approval has already been granted for the landscaping strip, and steps are commonly incorporated into landscaping throughout the City;
ix)the location of the steps is implicit in the design and layout of the house, as is confirmed in the evidence of an architecturally qualified witness;
x)the City erred in requesting a planning application for the front steps before determining whether there was a requirement to do so; and
xi)the issue of 'property rights' is a civil law matter and the City's decision to request planning approval, and then to refuse the application, impacts on the rights of the applicant.
b)As to the rear boundary wall:
The rear boundary wall satisfies the applicable provisions of TPS 6 for the following reasons:
a)the boundary wall is not more dominant than the wall with which it has greatest proximity, and the iron lacework panel creates an attractive visual impact;
b)the boundary wall neither creates any increased shadow effect nor restricts sunlight into the rear property at 10A Anthony Street;
c)the boundary wall does not restrict any views from 10A Anthony Street;
d)the boundary wall does not overlook any habitable room or outdoor living area at 10A Anthony Street;
e)the written agreement was provided by both adjoining neighbours within the 14 day consultation period;
f)the reasons for refusal of the planning application for the boundary wall is invalid as the wall is consistent with cl 8 of P350.7; and
g)that having regard to the foregoing, the development does not conflict with cl 1.6 ('Scheme Objectives') or cl 7.5 ('Matters to be Considered') of TPS 6.
The applicant provided the expert written opinion of a former building surveyor working in local government (Kallan Short) and a civil engineer (RD Graieg) in support of aspects of his case.
Planning issues
The principal planning issues are:
a)Is planning approval required for the front steps?
b)If planning approval is required for the front steps, should it be granted in the circumstances of the case?
c)Should the rear boundary wall be approved, having regard to matters of orderly and proper planning, and amenity?
Assessment of the proposals
Background
On 28 November 2007, the owners of 10A Anthony Street (Mr A Clark and Mrs S Clark) wrote to the City as follows:
a)that they had noticed the start of construction of the front door steps (leading to the applicant's front door) on the subject land and that these steps protruded 850 millimetres into the reciprocal right of carriageway, thus restricting vehicle access to the 3 metre paved driveway;
b)that the 1 metre wide lavender landscaping strip restricted vision of the front steps when reversing a vehicle back down the driveway; and
c)they requested that Council take action to have the front steps removed and the landscaping strip properly maintained.
On 27 June 2008, the City wrote to the applicant advising:
a)that as the steps and associated side railing were not shown on the original development approval for the dwelling, that an application for planning approval was required for the works which had been undertaken; and
b)that vegetation within the landscaping strip should be regularly maintained so as not to encroach into the driveway.
On 30 July 2008, an application for planning approval was lodged by the owners of the subject land with the City for:
[A] [s]creen wall at [the] back and [the] side of [the] courtyard at [the] rear of [the] property.
The estimated cost of the works was $3,000.
A set of plans (dated 27 February 2009) for both the rear screening boundary wall and the front steps and side handrails were lodged with the City.
On 23 March 2009, the City refused the application for both the already constructed steps and the rear screen boundary wall by way of a notice of determination, and advised that as the matter had been determined under delegated authority, a request could be made by the applicant for a review by Council.
On 5 April 2009, the applicant wrote to the City advising that he wished Council to review the decision of 23 March 2009.
On 30 April 2009, Mrs Clark wrote to the City advising of:
a)her continued opposition to the construction of the front steps 'built into the right of carriageway';
b)her opposition to the already constructed rear boundary wall; and
c)a request that the City should inform the owner of the subject land to extend his parking area in front of his house and to refrain from parking in the 4 metre right of carriageway.
On 12 May 2009, Mrs Clark again wrote to the City advising that she had no intention of amending the right of carriageway easement which would require the written consent of both parties and an appropriate amendment to both registered titles. A letter of the same date from Messrs AM Palmer and Associates (Commercial Lawyers) to Mrs Clark was attached and the following opinion was offered:
Based on the facts and the terms of the easement, we are of the opinion [that] any structure permanent or otherwise, should not be built within this right of carriageway. Furthermore[,] vehicles should not be allowed to obstruct the use or park within this right of carriageway. To do so would be in breach of the terms of the registered [e]asement.
On 26 May 2009, at a Council Meeting, it was resolved that the:
… application for planning approval for the proposed steps and railing and the increased height of the boundary fence be refused …
On 17 July 2009, an application for review was lodged with the Tribunal against the Council determination of 26 May 2009.
Following a mediation process on 17 August 2009 and 23 September 2009, the respondent, as has been mentioned, was invited to reconsider its decision of 26 May 2009 by way of a Tribunal order of 3 December 2009.
At a Council Meeting on 15 December 2009, the matter was again refused in the terms set out above.
On 15 January 2010, it was ordered by the Tribunal that the matter be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Legislative and policy provisions
City of South Perth Town Planning Scheme No 6
The Scheme provisions most relevant to this matter include the following:
1.6SCHEME OBJECTIVES
…
(2)The general objectives of the Scheme are to:
…
(f)Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development;
…
4.1RESIDENTIAL DESIGN CODES
…
(3)Unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes.
…
6.7FENCE HEIGHTS
A fence shall not exceed 1.8 metres in height without the approval of the Council and the Council shall not give its approval unless it is satisfied that the fence will not adversely affect the amenity of any property in the locality and will not clash with the exterior designs of buildings in the precinct …
7.1REQUIREMENTS FOR PLANNING APPROVAL
(1)Subject to clause 7.12, in order to give full effect to the provisions and objectives of this Scheme, all development, including the installation of Telecommunications Infrastructure or a change in the use of the land, except as otherwise provided, requires the prior planning approval of the Council in each case. Accordingly, no person shall commence or carry out any developing, including a change in the use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this Part.
(2)The planning approval of the Council is not required for the following development of land [reproduced below, so far as is relevant]:
…
(b)The erection of a fence …
…
(d)The carrying out of works for the maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building …
…
(f)The construction of a pergola or a swimming pool …
(g)A Home Office.
…
7.5MATTERS TO BE CONSIDERED BY COUNCIL
In considering an application for planning approval, the Council shall have due regard to, and may impose conditions with respect to, such of the following matters, as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application:
(a)the objectives and provisions of this Scheme …
(b)the requirements of orderly and proper planning …
(c)the provisions of the [Codes] …
…
(f)any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
…
(i)the preservation of the amenity of the locality;
(j)all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;
…
(s)whether the proposed access and egress to and from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvre and parking of vehicles on the site;
…
(w)any relevant submissions received on the application …
(x)any other planning considerations which the Council considers relevant.
…
7.12APPROVAL OF EXISTING DEVELOPMENT
(1)The Council may grant planning approval to a development already commenced or completed regardless of when it was commenced or completed. Such planning approval shall have the same effect for all purposes as if it had been granted prior to the commencement or completion of the development. However, planning approval shall not be granted pursuant to this clause unless or until the development complies with the provisions of the Scheme, with or without the exercise of a discretion provided in the Scheme, as to all matters other than the requirement for prior approval imposed by clause 7.1.
9.6PLANNING POLICIES
(1)The Council may prepare a planning policy which may make a provision for any matter related to the planning or development of the Scheme area …
…
(6)A planning policy shall not bind the Council in respect of any application for planning approval but the Council shall have due regard to the provisions of the planning policy and the objectives which the planning policy is designed to achieve before making its decision.
Transfer of Land Act 1893
The provisions most relevant to this matter are:
65(2)Where a plan or an instrument … contains the words 'right of carriage way' in relation to a place indicated on the plan or, in the case of an instrument, on the plan in relation to which the instrument was lodged then, unless the contrary intention appears, the words of the Ninth Schedule applicable to a transfer shall be deemed to have effect in relation to that plan or instrument.
…
Ninth Schedule
Together with full and free right and liberty to and for the transferee hereunder and to and for the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof and his her and their tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without animals or vehicles into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated and indicated by a symbol on the said map.
WAPC Policy No DC 2.2 - Residential Subdivision
The provision most relevant to the matter is:
3.7.2For dwellings without street frontage, access should be provided in accordance with the following:
•Battleaxe lots (including survey-stratas with no common property) to be provided with an access leg of 4 [metres] in width …
City of South Perth Policy P350.7 - Fencing and Retaining Walls
The provisions most relevant to this matter are:
7(c)Permissible fencing materials and height
…
(ii)The height is to be 1.8 metres unless:
(A)a greater height is approved under clause 8 of this Policy.
…
8.Fences higher than 1.8 metres
Except in circumstances where higher fencing is employed to achieve compliance with the visual privacy requirements of the [Codes], it is not generally necessary for a fence to exceed a height of 1.8 metres. A higher fence may have an adverse amenity impact in terms of:
(a)excessively dominant and unattractive visual impact;
(b)increased shadow effect;
(c)restriction on sunlight penetration; and
(d)restriction on views.
Clause 6.7 of TPS6 restricts fence height to a maximum of 1.8 metres unless approval is granted for a higher fence. A written request must be submitted to the City for any proposed fence exceeding 1.8 metres in height. In considering such a request, the City must be satisfied that the proposed fence will not adversely affect the amenity of any property in the locality and will not clash with the exterior designs of neighbouring buildings.
In recognition of the potential adverse amenity impacts of higher fences, the City will not normally approve a fence height greater than 1.8 metres without the written agreement of the affected adjoining neighbour. The City will consult the adjoining neighbour upon receipt of a written request for a higher fence.
The matter of planning approval for the front steps
The position of the applicant, as has been outlined already, is that planning approval was not required for the construction of the front steps. The respondent disagrees.
The definition of 'development' is provided in Sch 1 (Definitions) of the Scheme, as follows:
'development' : shall have the same meaning as that given to it from time to time in the Act …
However, neither the Town Planning and Development Act 1928 (WA), nor the PD Act, are particularly helpful in determining whether these front steps should be classified as development requiring planning approval.
What is firstly of assistance to the Tribunal are the following facts and observations:
a)In 1999, a grant of planning consent was issued by the City (ID No 2643) for the redevelopment of the subject land. The relevant plans for the residence did not show a provision for the front steps.
b)The grant of planning consent included the following condition:
(10)(g)A minimum 1.0 metre wide landscaping strip shall be provided between the verandah of the proposed dwelling and the driveway serving the rear dwelling.
c)The grant of planning approval did not require the construction of the front steps, but the landscaping strip falls within the 4.0 metre wide right of carriageway easement, and so does the now constructed eastern portion of the front steps.
d)According to the applicant's SIFC:
In the intervening years between 1999 and 2007, the landscaping strip consisted of a lavender hedge and the eastern end of the front steps which at the time [were] constructed of concrete slabs on brick piers.
e)Again, in the applicant's SIFC, he advises that:
65(i)The steps are in place to soften the verandah, make the house more attractive, enhance the streetscape appeal and add value to the overall site.
(j)The steps are necessary, as per the [Building Code of Australia], to facilitate safe entry to and exit from the building and to limit [any] public risk of injury when accessing the building in a normal manner ...
f)The front steps measure 2.04 metres wide at the verandah level, and widen out to 3.36 metres at ground level. The attached handrail (railing) is 1.145 metres high.
g)The 4 metre wide right of carriageway easement is affected by the eastern portion of the front steps to a width of 850 millimetres to 1 metre (approximately). The remaining 3 metre width of the easement (driveway) is unaffected by the front steps.
In our view, the requirement for planning approval for the front steps is captured by cl 7.1(1) of the Scheme and, although their significance may not appear as great as other developments specified as 'exempt' in cl 7.1(2), they are in fact not a type of development specified as 'exempt'.
Also, what must be said is that the front steps are a significant design feature of the home as they address the streetscape, and they represent a necessary adjunct to the residence for both safety and access purposes.
Moreover, a portion of the front steps affects the right of carriageway easement, and that reason alone would suggest that a planning assessment is required.
See also the cases discussed in Glenbrook Nominees Pty Ltd and City of Perth [2009] WASAT 3, a case where an air conditioning unit was held to be 'development'.
The matter of the right of carriageway easement
This matter is addressed in part above, wherein the legal advice to the owner of 10A Anthony Street (Mrs Clark) was that no structure, permanent or otherwise, should be built within the right of carriageway unless both proprietors agree to vary the terms of the easement in writing. Such a restriction would apply to the front steps.
In the Minutes of the Council Meeting of 15 December 2009, the broadly similar advice given by the City's former legal and governance officer was referred to in this way:
When the block was subdivided into two battleaxe properties, an access easement was created, in accordance with the requirements of the WAPC for the benefit of the property owner at the rear, which burdened the property owner at the front. If the property owner who carries the burden of the easement proposed to do anything/place any structure on the easement, then they would firstly need to obtain the consent of the property owner for whose benefit the easement was created. If this consent was refused then any dispute as to the competing rights of the two property owners would be determined as a civil law matter. In the absence of any necessary consent, the City should not take any action which could adversely impact on the exercise of the rights of either property owner.
As the intentions of Mrs Clark, as outlined above, are clear, it would appear that the following two options are open to the applicant if the application for review were to be dismissed:
a)that the eastern portion only of the front steps affecting the easement be removed; or
b)that the front steps be totally removed and a new application for planning approval be lodged with Council with a new design for the front steps which does not affect the easement.
In Williams v City of St Kilda (1987) 29 APA 141 the then Victorian Planning Appeals Board declined, at 145, to exercise its jurisdiction to consider 'the interesting legal issues which arise from a consideration of [an] easement', deciding the matter against the applicant there, having regard to the fact that 'an important component of the physical amenity of the [neighbouring] objector's property is the easement of [carriage]way' (at 146).
That case dealt with the erection of a freestanding gate obstructing access over a right of way. The Board held, at 146:
It is neither reasonable nor consistent with the maintenance of the amenity of her [that is, the neighbour's] property to fetter her usage of her property in such a material way.
We intend to adopt the same approach and we have also come to the same conclusion in this case: development approval should not be given where the effect of that approval might be to materially affect a neighbour's relevant 'usage of her property'.
The front steps in this case are, in our view, a significant, albeit partial, encroachment into the cross-easement arrangement and thus planning approval should be refused in the proper exercise of the Tribunal's discretion.
The matter of the rear boundary wall
In the applicant's SIFC, he advised:
a)a brickwork wall of 6 metres length and 3.27 metres height was constructed by the owners of 10A Anthony Street on part of their southern boundary;
b)the scale and bulk of the wall was not visually in harmony with their 1.8 metre high adjoining fence, also on the southern boundary of 10A Anthony Street;
c)the applicant applied for planning permission on 30 July 2008 to build a rear (north) boundary wall at 3.27 metres high to adjoin and match the 3.27 metre high wall at 10A Anthony Street and to extend westward at that height the extra 2 metres adjacent to and adjoining the 1.8 metre high fence on 10A Anthony Street;
d)the extra 2 metres of rear boundary wall at 3.27 metres height contains a lace ironwork infill panel;
e)during the neighbour consultation period, the rear neighbour at 10A Anthony Street gave support for the 3.27 metre high boundary wall;
f)after having waited five months for planning approval, the boundary wall was constructed following verbal approval from the respondent; and
g)the owner of 10A Anthony Street reversed their support for the boundary wall only after the wall had been constructed.
In a letter to the City, dated 30April 2009, Mrs Clark advised:
As regards to the application the owner has made to Council to erect a fence exceeding the 1.8mt limit at the rear of his property I wish to advise the owner has already constructed this fence in brick to the same height as the garage parapet wall. Initially on receiving the Notice of Application to build this fence I had no real issue with this proposal. However, since the wall has been built, it is a lot higher than I expected and dominates the back fence … My concern is with the construction of this wall and how safe it actually is. My question is has this wall been approved by the Council in its form and if so are they satisfied it has been constructed in a safe manner?
The Minutes of the Ordinary Council Meeting of 26 May 2009 advised:
The owners of the properties at No 10A and No 8 Anthony Street were invited to inspect the application and submit comments during a 14 day period. During the advertising period two submission[s] were received. Both supported the boundary fencing …
In the Minutes of the Ordinary Council Meeting of 15 December 2009, the wording was changed to read:
In respect of the proposed fence higher than 1.8 metres, the owners of the two adjoining properties were invited to inspect the application and submit comments during a 14 day period. During this period two submissions were received, one of which supported the boundary fencing.
In a letter to the Tribunal dated 9 February 2010, a LuanKee Tee advised:
I am writing to advise that I support the boundary wall development at the rear of 10 Anthony Street, South Perth, which abuts my property at 8 Anthony Street, South Perth.
I declare that I have no issue with the height or other aspect of the wall.
The Tribunal is satisfied, based on the evidence before it, that the two adjoining owners at No 8 Anthony Street and No 10A Anthony Street originally supported the 3.27 metre high rear boundary wall but that Mrs Clark of 10A Anthony Street has subsequently withdrawn her support.
The matters of orderly and proper planning and amenity
The matter of the rear wall is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy documents. The dominant feature of those provisions relates to amenity questions, particularly as to the question of how any neighbour might be affected.
The matter of amenity was raised in the Minutes of the Ordinary Council Meeting of 15 December 2009 in the following terms:
… before approving the proposed 'high' brick fence, the Council must be satisfied that the proposed fence will not have an adverse amenity impact. City [planning] officers consider that it is reasonable for the proposed fence height to match the height of the existing boundary fence where it meets with the adjoining boundary wall to the rear, however the proposed brick fence should not extend along the full length of the boundary at a height of 3.27 metres. The proposed height in lieu of 1.8 metres will cause the fence to have an adverse visual impact on the adjoining rear property, contrary to the provisions of Clause 8(a) of Policy P350.7.
From the photographic evidence provided to the Tribunal, it is clear that:
a)from the perspective of the applicant, the extension of the 3.27 metre high wall westward an additional 2 metres to the western boundary does provide a more enclosed design solution than the 'saw-tooth' effect of a 3.27 metre high wall of 6 metres width next to a 1.8 metre high wall of 2 metres width; and
b)that from the perspective of the respondent, the extension of the 3.27 metre high wall westward an additional 2 metres to the western boundary provides a 'blockingout' effect when viewed from within 10A Anthony Street looking south.
On the matter of amenity, the reasons in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48] are helpful:
… However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. This can include visual amenity.
In this case, the opinion of Mrs Clark, whose views are directly affected from within the rear of her property looking south, should, in our view (and with respect), be given more weight than the opinion of LuanKee Tee of 8 Anthony Street who is not directly affected by the 3.27 metre high rear boundary wall. Moreover, Mrs Clark's opinions are significant factors in assessing amenity.
It is clear that the relevant instruments discussed above take as a general starting point a height of 1.8 metres for such walls and fences. This is, amongst other reasons, to avoid walls and fences which are 'excessively dominant' or that might result in an 'unattractive visual impact'. These are critical aspects of amenity.
The role of the Tribunal is to achieve the correct and preferable decision in the review. That task includes ascertaining the neighbour's current views in the context of making a judgment about amenity. That these views come about because of an arguably understandable change of mind on her part is essentially irrelevant to the Tribunal's task. What matters is the expression of a neighbour's view on the matters contemplated in the planning framework.
In our view, taking into account the photographic evidence, the intent of the relevant instruments, the opinions of the City's planning experts and the neighbours' views, the rear boundary wall in the form presented should not be approved as it significantly diminishes local amenity.
Conclusions
For the reasons discussed above, the applicant has not made out any part of his case for retrospective planning approval for certain additions to his house. The City made the correct decisions and thus the application for a review will be dismissed.
Orders
1.The application for review is dismissed.
2.The decisions under review are affirmed.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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