FORMAN and TOWN OF CAMBRIDGE
[2022] WASAT 119
•3 JANUARY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FORMAN and TOWN OF CAMBRIDGE [2022] WASAT 119
MEMBER: MR R POVEY, MEMBER
HEARD: 17 OCTOBER 2022
DELIVERED : 3 JANUARY 2023
FILE NO/S: DR 247 of 2021
DR 76 of 2022
BETWEEN: DAVID FORMAN
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
DR 247 of 2021 - Town planning - Street walls and fences - Removal of front fence - Directions notice
DR 76 of 2022 - Town planning - Development application - Application for retrospective development approval - Deemed refusal - Street walls and fences - Design principles of the Residential Design Codes - Local planning policy - Ability to augment the Residential Design Codes - Streetscape - Future character - Visual Permeability - Orderly and proper planning
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 75(2), cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(c), cl 67(2)(g), cl67(2)(m), cl 67(2)(n), cl 67(2)(w)
Planning and Development Act 2005 (WA), s 214(3), s 241(1)(a), s 252(1), s255(1)
State Administrative Tribunal Act 2004 (WA), s18, s 27, s 27(1), s 27(2), s32(1), s 32(2)(a), s 32(2)(b), s 47
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 2.4, cl 2.5, cl5.1.2, P2.2, cl 2.5.1, cl 5.2.3, cl 5.2.4, P4, cl 7.1, cl 7.3.1, cl 7.3.1(b)
Town of Cambridge - Local Planning Scheme No 1
Result:
DR 247 of 2021
Application allowed
DR 76 of 2022
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Ms M Georgiou |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | Francis Burt Chambers |
Case(s) referred to in decision(s):
Argyle v State Administrative Tribunal, [2022] WASC 317
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Burnett and Town of Cambridge [2006] WASAT 29
Loxton & Anor and City of Fremantle [2015] WASAT 46
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
O'Brien and City of Vincent [2017] WASAT 99
Romano and Town of Cambridge [2022] WASAT 44
Sweetland and Town of Cambridge [2005] WASAT 278
Thomas and Town of Cambridge [2013] WASAT 206
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This decision deals with two applications for review and relates to the existing steel infill panels and gates which make up part of the primary street (front) fence (development) at Lot 148, No 62, Chipping Road, City Beach (subject site).
The first application for review, DR 247 of 2021, is made under s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the Town of Cambridge's (respondent or Town) directions notice issued on 15 October 2021 under s 214(3) of the PD Act requiring removal of the development.[1]
[1] DR 247 of 2021 was originally made under s 252(1) of the PD Act. However, this was amended by the Tribunal's orders dated 3 December 2021.
The second application for review, DR 76 of 2022, is made under s 252(1) of the PD Act for review of the respondent's 'deemed refusal' of 'retrospective approval of the existing front fence', which is the development. The 'deemed refusal' arises under cl 75(2) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), as the Town did not make a decision on the application within the prescribed time.
The applicant seeks retrospective development approval for the development and the consequential setting aside of the Town's decision to issue a written direction.
In these reasons, I will firstly describe the Tribunal's review jurisdiction and briefly address the final hearing (hearing) and aspects of the evidence. Then I will describe the development, the subject site and the locality, the planning framework and summarise the procedural history. Finally, I will set out, and then determine, the two issues that arise in this proceeding.
For the reasons given below, in respect to DR 76 of 2022 I have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to approve the development. Consequently, for DR 247 of 2022 I will make orders setting aside the Town's decision to issue the directions notice and substitute a decision that no notice be given.
The Tribunal's review jurisdiction
The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27] - [30] and, for completeness, is set out below:
27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[2]
28The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[3]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[4] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[5] The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[6]
30The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[7] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
The hearing and aspects of the evidence
[2] Section 18, SAT Act.
[3] Section 27, SAT Act.
[4] Section 32(2)(a), SAT Act.
[5] Section 32(1), SAT Act
[6] Section 27(1), SAT Act.
[7] Section 32(2)(b), SAT Act.
The hearing was conducted on 17 October 2022. At the hearing I heard evidence from two town planning experts, Mr Joe Algeri, a town planning consultant, called on behalf of the respondent, and Mr Reegan John Cake, a town planning consultant, called on behalf of the applicant. Mr Algeri and Mr Cake also filed witness statements with the Tribunal. At the commencement of the hearing, together with the counsel for the parties and the town planning experts, I attended a view of the subject site and immediate surrounds.
At the hearing, time was spent considering the development against the deemed-to-comply provisions in Local Planning Policy 3.1 - Streetscape (LPP 3.1).[8] However, it is uncontroversial the development does not meet the deemed-to-comply requirements of LPP 3.1 in respect to one aspect, being cl C4.1(i),[9] as the development does not meet one part of the definition of 'open style' in LPP 3.1. This is due to the dimensions of the blades or fins (and their spacing) that make up the infill panels and gates differing from the deemedtocomply requirements detailed in part 2 d) of the definition.[10]
[8] For completeness the relevant deemed-to-comply provision of LPP 3.1 is provided in Annexure A.
[9] ts 17 and 93, 17 October 2022.
[10] For completeness the definition of 'open style' in LPP 3.1 is provided in Annexure A. See also [14].
As a result, the development must be assessed against the relevant design principles of State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes). In undertaking a design principles assessment what is not appropriate, as the Tribunal has found on numerous previous occasions, is consideration of how far the development departs from the deemed-to-comply requirements.[11] As Mr Algeri succinctly states in oral evidence, which I accept and adopt in these reasons:[12]
… because one thing I've learnt is that once you depart from the deemed-to-comply provisions one thing you don't do is some sort of assessment about just how far away you are and what the difference might be, big or small[.]
…
… because once - if you don't meet the deemed-to-comply provisions you forget them, and you go to [the] design [principles].
[11] See for example Sweetland and Town of Cambridge [2005] WASAT 278 at [36]; Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 at [30]; Thomas and Town of Cambridge [2013] WASAT 206; and Loxton & Anor and City of Fremantle [2015] WASAT 46 at [29]. This is consistent with cl 2.5.1 of the R-Codes, see [34].
[12] ts 97, 17 October 2022.
Also, at the hearing Mr Cake was cross-examined extensively by the respondent's counsel, Ms Georgiou, on examples of other front fences he identifies in the broader City Beach suburb.[13] These examples are not of assistance to the Tribunal because, as Mr Cake concedes under cross-examination, they were approved under various earlier versions of LPP 3.1 with different provisions relating to fencing (or an example approved under other separate design guidelines)[14] and while the style of fencing he identifies may be similar to the development, he was unable to provide details as to their specific design and dimensions.[15]
[13] Witness Statement of Reegan Cake, para 25 and Annexure 2, Exhibit 8; Photographic Map of Properties Listed at para 25 of Statement of Evidence of Mr Reegan Cake, Exhibit 11.
[14] Ocean Mia Design Guidelines, Exhibit 14.
[15] ts 54-69, 17 October 2022.
Similarly Mr Cake, provides in evidence renderings of the development, which he says shows the development compared to a compliant fence (which he says meets the deemed-to-comply requirements).[16] However, Mr Cake under cross-examination acknowledges he is not a modelling expert, and that he did not prepare the renderings himself.[17] He also accepts he is not able to give evidence as to the parameters used when preparing the photo renderings.[18] As a result, and considering the observations I made earlier at [10], I place no weight on this evidence. At the hearing the applicant's counsel, Mr Skinner, also provided a plan comparing the development with a compliant deemed-to-comply proposal.[19] Again, having regard to my observations earlier at [10], I place no weight on this evidence.
The development
[16] Applicant's Additional Renderings for Attachment 3 for Statement of Evidence of Mr Reegan Cake, Exhibit 10.
[17] ts 87, 17 October 2022.
[18] ts 87-90, 17 October 2022.
[19] Applicant's Comparison Diagram with Blade Dimensions that meet Deemed-to-Comply Provisions and Dimensions of Infill Panel as Proposed, Exhibit 9.
The development involves five metal infill fence panels and two gate components[20] of the front fence and one metal infill panel of a side fence (southern boundary). These panels are set within existing rendered masonry piers (which are 2 metres in height). Below the metal infill fence panels is low height rendered masonry infill. The masonry components of the fence were approved separately by the respondent on 29 June 2020. This approval included condition 3, as follows: [21]
The infill panels and gate shall (together with the approved fence) be "open style" as defined by the Town's Local Planning Policy 3.1 - Streetscape.
[20] One pedestrian gate and the other a sliding gate across a double driveway. Refer drawings A1.00, A1.01, A3.00, A7.00 and A7.01, Exhibit 1.
[21] Respondent's Statement of Issues Facts and Contentions (SIFC), para 15, Exhibit 3.
The infill panels have been installed along the front boundary and a portion of the side boundary within the 7.5 metre primary street setback. The infill panels and gates involve a series of metal fins measuring 76 millimetres deep (front to back), 25 millimetres wide and spaced 85 millimetres apart.[22] As mentioned, it is uncontroversial these dimensions do not accord with the deemedtocomply requirements in LPP 3.1 which specify fins should have a maximum width of 10 millimetres, a maximum depth of 70 millimetres and a minimum spacing of 114 millimetres.[23]
Subject site and locality
Subject site
[22] Respondent's SIFC, para 20, Exhibit 3 and Applicant's SIFC, para 8(d), Exhibit 7.
[23] Applicant's SIFC, para 8(d), Exhibit 7.
The subject site is more particularly known as Lot 148 on Diagram 9545 being the whole of the land contained on Certificate of Title Volume 436 and Folio 115A and is approximately 878 square metres in area. The subject site is generally rectangular in shape and has a front boundary to Chipping Road with a length of 21.12 metres. The rear (eastern) boundary fronts Talgarth Way, which is a secondary street frontage.
The subject site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and zoned 'Residential' with a density coding of 'R12.5' under the Town of Cambridge - Local Planning Scheme No 1 (LPS 1).
The subject site contains an existing three storey dwelling with two garages, one fronting Chipping Road and the other fronting Talgarth Way. Chipping Road is the primary street frontage as it is the principal street providing access to the front door of the dwelling.
The locality
The extent of the locality is agreed by the town planning experts[24] and I accept that the relevant locality, in this case, includes the residential properties located on the eastern side of Chipping Road from the intersection with Empire Avenue (approximately 200 metres to the north of the subject site) to the intersection with Bent Street (approximately 200 metres to the south of the subject site). Also, to the north of the subject site (separated by two lots) is public open space with frontage to Chipping Road and which extends eastwards into the residential area. The Chipping Road alignment curves westward in front of the public open space.
[24] ts 51-52, 17 October 2022.
Opposite the subject site, to the west, is Chipping Road, a dual use path, a strip of vegetation upon the coastal dune and then West Coast Highway. The Indian Ocean is located further to the west.
To the immediate north of the subject site is No 64 Chipping Road which is an existing double storey dwelling with no front fence. To the immediate south of the subject site is No 60 Chipping Road, which has a new single dwelling currently under construction. I will consider the character of the locality, including desired future character, later at [56] - [70].
Planning framework
The relevant planning framework, which I have considered in determining the application includes:
a)MRS;
b)LPS 1 which incorporates the Deemed Provisions and includes the relevant matters under cl 67(2) of Sch 2;[25]
c) R-Codes;
d)Local Planning Policy 2.1 - Precinct P1: City Beach (LPP 2.1);[26] and
e)LPP 3.1.
The inter-relationship of the applicable local planning framework and the R-Codes
[25] Clause 67(2) matters are identified and considered at [80]-[94].
[26] The relevance of LPP 2.1 in these proceedings is to establish the precinct boundary for the 'City Beach Precinct' and at cl 1.2 provide for development standards, which includes the R-Codes, Town Planning Scheme and any relevant planning policies. In this case, the relevant local planning policy is LPP 3.1.
LPS 1 contains cl 25(1) which says the R-Codes, modified as set out in cl 26, are to be read as part of the scheme. Therefore, the RCodes have the same status as the scheme. The modifications in cl 26 are not directly relevant in these proceedings. The PD Act requires the Tribunal, pursuant to s 241(1)(a), to have due regard to relevant planning considerations including any State Planning Policy. In this case, while the R-Codes is a relevant State Planning Policy, its status is elevated by cl 25(1) of LPS 1 beyond 'due regard' to that of the scheme.
It is common ground, and I accept, the deemed-to-comply provisions of the R-Codes at cl 5.2.4 have been replaced by cl 5.1 of LPP 3.1[27] and it is uncontroversial the development does not meet the deemed-to-comply requirements of LPP 3.1.[28] Where a proposal does not meet the deemed-to-comply requirements it is to be assessed against the relevant design principles of the R-Codes. In this case, the relevant design principle is set out in cl 5.2.4, P4, of the R-Codes dealing with street walls and fences, as follows:[29]
P4Front fences are low or restricted in height to permit surveillance (as per cl 5.2.3) and enhance streetscape (as per cl 5.1.2), with appropriate consideration to the need:
•for attenuation of traffic impacts where the street is designated as a primary or district distributor or integrator arterial; and
•for necessary privacy or noise screening for outdoor living areas where the street is designated as a primary or district distributor or integrator arterial.
[27] ts 28, 17 October 2022.
[28] The deemed-to-comply requirements in cl 5.1 of LPP 3.1 replaces cl 5.2.4, C4.1 and C4.2 of the R-Codes.
[29] Respondent's s 24 Bundle of Documents, Item 9, page 25, Exhibit 4.
The design principle at cl 5.2.3, P3, of the R-Codes deals with street surveillance and states:
Buildings designed to provide for surveillance (actual or perceived) between individual dwellings and the street and between common areas and the street, which minimise opportunities for concealment and entrapment.
The design principle at cl 5.1.2 deals with street setback and the parties accept design principle 2.2 is relevant in this case:[30]
P2.2Buildings mass and form that:
…
•positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework.
[30] ts 19 and 30, 17 October 2022.
The design principles at cl 5.2.3, P3, and cl 5.1.2, P2.2, are expressed with a focus on buildings. The definition of 'building' in the R-Codes excludes boundary fences.[31] However, applying cl 5.2.4, P4, relating to street walls and fences relevant to this case, requires consideration of the design principle associated with surveillance contained in cl 5.2.3, P3, and the design principle associated with the development context and streetscape (prevailing or future) as outlined in the local planning framework, as contained in cl 5.1.2, P2.2.
[31] R-Codes, page 47, Exhibit 4.
Further, cl 2.4 of the R-codes deals with judging the merit of proposals and states:[32]
Where a proposal does not meet deemed-to-comply provision(s) of the R-Codes Volume 1 and addresses design principle(s), the decisionmaker is required to exercise judgement to determine the proposal.
Judgement of merit is exercised only for specific element(s) of a proposal which do not satisfy the relevant deemed-to-comply provision(s).
[32] Respondent's s 24 Bundle of Documents, Item 9, page 6 and ts 14, 17 October 2022, Exhibit 4.
Clause 2.5 of the R-Codes deals with the exercise of judgement. The relevant parts are as follows:
2.5.1
Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1.
The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemedtocomply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decisionmaker shall exercise its judgement, having regard to the following:
(a)any relevant purpose, objectives and provisions of the scheme;
(b)any relevant objectives and provisions of the R-Codes Volume 1;
(c)a provision of a local planning policy adopted by the decisionmaker consistent with and pursuant to the R-Codes Volume 1; and
(d)orderly and proper planning.
The relevant objective of the R-Codes is contained at cl 5.2 (a) which relates to streetscape and states:
To contribute towards the character of streetscapes including their views and vistas and provides security for occupants and passers-by, a landscape to ensure adequate shade, privacy and open space for occupants, and an attractive setting for the collection of buildings.
Clause 7.1 of the R-Codes provides that the decision-maker shall not amend or modify the R-Codes Volume 1, to provide for a greater or lesser requirement unless it relates to matters expressly permitted under the R-Codes Volume 1 to be amended or modified.[33] Clause 7.3.1 of the R-Codes allows local planning policies (among other things) to contain provisions that amend or replace the deemed-to-comply provisions relating to street walls and fences and requires that amendments or replacements to the deemed-to-comply provisions are to be consistent with the design principles.
[33] Respondent's s 24 Bundle of Documents, Item 9, page 46, Exhibit 4.
As mentioned earlier at [23], the development is required to be assessed against the design principle in cl 5.2.4, P4, of the R-Codes. Clause 7.3.1(b) of the R-Codes allows a local planning policy to contain provisions that:[34]
augment the R-Codes Volume 1 by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development covered by this volume that does not meet the requirements or is not provided for, under the R-Codes Volume 1.
[34] Respondent's s 24 Bundle of Documents, Item 9, page 46, Exhibit 4.
The respondent submits the design principles set out in cl 5.2 of LPP 3.1 augment the R-Codes in the assessment of this case.[35] However, this is not correct in my view because LPP 3.1 does not contain local housing objectives that augment the R-Codes. Instead, LPP 3.1 contains its own 'design principles' which refer back to the relevant design principle of the R-Codes (in cl 5.2.4) and then says 'Council shall also have regard to the following matters for consideration in applying the design principles', and raises the objectives of LPP 3.1 and the desired future character of the area, outlined in the desired future character descriptions of LPP 3.1, as relevant matters.[36] The R-Codes do not permit the design principles to be extended in this way. Even if LPP 3.1 did contain a local housing objective related to street walls and fencing, the Tribunal[37] in O'Brien and City of Vincent [2017] WASAT 99 at [32] observed it is only open to do this when a matter that is either not addressed by the R-Codes or a situation where a development proposal does not meet the requirements of the R-Codes.
[35] ts 7, 18-19, 17 October 2022.
[36] Respondent's s 24 Bundle of Documents, page 105, Exhibit 4.
[37] M Eddy.
However, the local planning framework is engaged in this case because cl 5.2.4, P4, of the R-Codes requires the development 'enhance the streetscape' and refers to cl 5.1.2, P2.2, which says 'positively contributes to the prevailing or future development context and streetscape as outlined in the local planning framework'.
Further, while the development is in an established development context and consideration of the prevailing streetscape is relevant, LPP 3.1 also contains objectives and desired future character statements drawn from 'Garden City/Suburb' design principles, which are identified as being the origins of the subdivision design of City Beach.[38] Therefore, although the 'design principles' in LPP 3.1 cannot augment the R-Codes, the relevant objectives and relevant desired future character statements of LPP 3.1 are engaged as relevant matters in the local planning framework in this case.
[38] Respondent's s 24 Bundle of Documents, pages 96-97, Exhibit 4.
The relevant policy objectives of LPP 3.1 are:[39]
…
2)Design principles to encourage innovative solutions and creative built form outcomes.
3)To encourage good quality and well-designed development that is respectful of established character and amenity whilst recognising any future character objectives.
4)To maintain the openness of our streetscapes creating a safe and attractive pedestrian environment with passive surveillance of the street.
5)To ensure the presentation, design and form of dwellings are considered as an integral part of the streetscape, connecting visually to the street and not being isolated by fencing, retaining walls, garages or other features.
…
[39] Respondent's SIFC, para 46, Exhibit 3; Applicant's SIFC, para 7, Exhibit 7. Although objective 1 was identified by the parties as relevant, Mr Alegri in cross-examination (ts 80, 17 October 2022) gives evidence (which I accept) that it is not, because the objective relates to deemed-to-comply requirements, which it is uncontroversial, are not directly relevant in this case.
The relevant descriptions of the desired future character for City Beach in LPP 3.1 are:[40]
[40] Respondent's SIFC, para 48, Exhibit 3; Applicant's SIFC, para 7, Exhibit 7.
…
•Development shall be constructed to maintain the traditional street setbacks and clear separation between buildings and lot boundaries, to preserve the original and desired open nature of the precinct's design;
…
•New development shall create and enhance open landscaped front gardens within the street setback area to maintain the green character of the streetscape and the precinct;
…
•New development shall contribute to the streetscape through varied and high quality architecture, consistent with the original vision for an informal landscape of diverse villas[.]
…
Summary of procedural history
In terms of the history of the subject site and the development, the following events have occurred.
On 17 March 2018, the respondent approved a development application to construct a three storey single dwelling on the subject site. An original dwelling and a solid front wall were demolished to make way for the new dwelling. The new single dwelling is now complete.
On 19 November 2019, the respondent refused to grant development approval for the development. On 21 April 2020, the applicant lodged an application for review with the Tribunal in respect to this refusal. This application for review was subsequently withdrawn by the applicant.
On 29 June 2020, the respondent approved a development application which, among other things, included alterations to the primary street setback area fencing and showed fencing with 2 metre high brick piers and no infill panels. A condition was imposed requiring the infill panels and gate, together with the approved fence, to be 'open style' as defined by LPP 3.1. The masonry components are constructed, and these elements are not the subject of these proceedings. The infill panels and gates (the development) were installed by the applicant which do not comply with the condition of the development approval requiring the fence to be 'open style'.
After the respondent became aware of the development, the applicant lodged an application seeking retrospective development approval. This application was refused by the respondent on 27 April 2021.
Then on 15 October 2021, the respondent issued a directions notice under s 214(3) of the PD Act requiring the development to be removed and the land restored to the state that existed prior to the installation of the development.
On 15 November 2021, the applicant lodged an application for review with the Tribunal in respect to the Town's directions notice (DR 247 of 2021).
Following mediation at the Tribunal, the applicant lodged a revised development application with the respondent, seeking retrospective approval of the development.[41] On 22 March 2022 this application was presented to the respondent's Council meeting, with an officer report recommending refusal, however no decision was made by the Council.
[41] Application for Development Approval, Application Form, Exhibit 2.
As no decision was made on this application, the application is 'deemed refused' pursuant to cl 75(2) of the Deemed Provisions. As a result of the deemed refusal, the applicant, on 3 May 2022, lodged a further application for review with the Tribunal, which is also the subject of this proceeding (DR76 of 2022).
The power to grant approval to 'development already commenced or carried out' lies with cl 65 of the Deemed Provisions and s 164 of the PD Act. The principles governing retrospective approval have previously been considered by the Tribunal[42] in Burnett and Town of Cambridge [2006] WASAT 29 at [20] - [22]. It is with these principles in mind that I approach this review.
Issues for determination
[42] M McNab.
The first issue for determination by the Tribunal is whether the development should be granted retrospective development approval,[43] having regard to:
1)the design principles of the R-Codes;
2)the requirements of the LPP 3.1; and
3)sub-clauses 67(2)(a) to (c), (g), (m), (n) and (w) of the Deemed Provisions.
[43] This issue relates to the proceeding DR 76 of 2022.
The second issue for determination by the Tribunal is whether the directions notice, requiring removal of the development, should be set aside.[44]
[44] This issue relates to the proceeding DR 247 of 2021.
I will now consider the two issues in turn.
Issue 1 - whether the development should be granted development approval
The respondent contends that the cumulative impact of the width, depth and spacing of the fins that make up the fencing and gate infill panels result in the front fence being solid in appearance when viewed from various angles. The respondent contends it therefore follows that the development is inconsistent with the objectives of LPP 3.1 as it is not visually transparent, isolates the primary street setback and does not maintain the openness of the streetscape.[45] Further, the respondent contends the solid appearance of the development does not enhance the existing streetscape and does not meet the design principles of cl 5.2.4 of the R-Codes[46] and the relevant aims of LPS 1 and is therefore contrary to the orderly and proper planning of the City Beach Precinct.[47]
[45] Respondent's SIFC, para 55, Exhibit 3.
[46] Respondent's SIFC, para 60, Exhibit 3.
[47] Respondent's SIFC, para 64, Exhibit 3.
The applicant contends that the development presents consistently with the residential character of the locality, and is in keeping with the future residential character sought in the planning framework.[48] The applicant also contends the development is consistent in scale with fencing generally in the locality and has less bulk than many front fences in the street and the broader locality.[49] Further, the applicant contends the development retains generous visual permeability to the front yard from a broad range of views from the street.[50]
The relevant objective and design principles of the R-Codes
[48] Applicant's SIFC, para 17(a), Exhibit 7.
[49] Applicant's SIFC, para 17(b), Exhibit 7.
[50] Applicant's SIFC, para 17(c), Exhibit 7.
As mentioned at [29], cl 5.2(a) of the R-Codes sets out the objective for streetscape. Relevant to this case, the objective requires the development to 'contribute towards the character of streetscapes including their views and vistas and provides security for occupants and passers-by … and an attractive setting for the collection of buildings'.
As mentioned at [23], cl 5.2.4, P4 of the R-Codes deals with street walls and fences and is the design principle applicable in this case. This design principle requires that appropriate consideration be given to the need for attenuation for traffic impacts where the street is designated as a primary or district distributor or integrator arterial road, which is not relevant as it is uncontroversial Chipping Road is not a road in this category. Similarly, the requirement to consider privacy or noise screening if the road is a primary or district distributor road is not relevant in this case.[51]
[51] ts 76, 17 October 2022.
Turning now to the relevant aspects of the design principle. First, the design principle requires the fence to be low or restricted in height to permit surveillance (as per cl 5.2.3 of the R-Codes). The planning experts agree,[52] and I accept, the height of the development is not a concern[53] and the development permits surveillance. Therefore, it satisfies this limb of the design principle.
[52] ts 74, 76-77, 17 October 2022.
[53] ts 104, 17 October 2022.
Second, the design principle requires the development to be low or restricted in height to enhance the streetscape (as per cl 5.1.2 of the RCodes). This requires examination of the prevailing streetscape character and the relevant provisions of LPP 3.1 as to future character. I will consider these two aspects, in turn, next.
Character, including the prevailing streetscape
When considering the character of the identified locality[54] it is uncontroversial the locality contains established single residential development in a coastal setting. The landform in the locality is undulating, reflecting the coastal dunes. From the subject site the land rises in elevation to the east and to the south.
[54] Identified earlier at [18]-[20].
When considering the character of the streetscape in Chipping Road, Mr Algeri accepts under cross-examination this can be considered in two sections because, due to the topography and vegetation, the entire streetscape in the locality is not visible from the front of the subject site.[55]
[55] ts 91-92, 17 October 2022.
This is relevant in this case because although 'streetscape' is not defined in the R-Codes, it is defined in LPS 1 as follows:[56]
(a)means the total visual impression gained from any one location within a street including the natural and man-made elements; and
(b)is made up of the appearance of and the relationships between buildings in terms of design, scale, materials, colours, finishes, signs, external furniture, paving materials for roads, footpaths and landscaping.
[56] Respondent's s 24 Bundle of Documents, page 67, Exhibit 4.
The first of the two streetscape sections includes the subject site and commences at the intersection of Bent Street and extends north to the public open space. Mr Algeri provides comment in his written evidence,[57] on the treatment of the boundary interface with Chipping Road and the residential development on each property, which is summarised below.
[57] Witness Statement of Joe Algeri, para 31, pages 13-15, Exhibit 5.
Property
Comment
78 Chipping Rd
Solid wall to Chipping Road, existed since at least 2010. Chipping Road is secondary street frontage as this residence has its primary frontage to Bent Street. Current residence constructed approximately 2020.
76 Chipping Rd
Solid wall existed since at least 2007. Dwelling also constructed 2007.
74 Chipping Rd
No wall. Original dwelling.
72 Chipping Rd
Solid wall existed since at least 2007. Dwelling has also existed since that time. Has dual vehicle and pedestrian access to Talgarth Way.
70 Chipping Rd
Solid wall has existed since at least 2007. Dwelling has also existed since that time.
68 Chipping Rd
Solid wall existed since at least 2007. Dwelling has also existed since that time.
39 Talgarth Way
(Primary street address to Talgarth Way) - Chipping Road frontage has a solid wall, which has existed since at least 2007 and current dwelling was under construction at that time.
64 Chipping Rd
No wall. Dwelling has existed since at least 2007.
62 Chipping Rd (subject site)
Subject site, front fence infill panels and gates are the subject of this application for review.[58]
60 Chipping Rd
New dwelling under construction. Development application for front fence currently being determined by respondent.
58 Chipping Rd
No wall. Dwelling existed since 2007 and likely to be original dwelling.
Public Open Space
[58] See summary of procedural history [37]-[46].
Based on the evidence before me, in this section of Chipping Road there are 10 properties, excluding the subject site, and there is a prevalence of solid walls, with six properties having this treatment at the Chipping Road boundary. Three have no wall or fence and one property is currently under construction, and on the evidence of Mr Algeri, a front fence is proposed but not yet approved.[59]
[59] Witness Statement of Joe Algeri, para 31, page 15, Exhibit 5.
The second section of Chipping Road in the identified locality extends from the public open space, southwards to the intersection with Empire Avenue. Mr Algeri provides comment in his witness statement on the treatment of each boundary interface with Chipping Road and the development on each property, which is summarised below.[60]
[60] Witness Statement of Joe Algeri, para 31, pages 15-16, Exhibit 5.
Property
Comment
Public Open Space
56 Chipping Rd
No wall. Dwelling Constructed in 2010.
54 Chipping Rd
No wall. Appears to be an original dwelling.
52 Chipping Rd
No wall. Dwelling constructed in 2021.
5 Calver Place
No wall. Appears to be an original dwelling. Secondary Street frontage to Chipping Road.
3 Calver Place
Solid wall. Current dwelling since 2007. Secondary street frontage to Chipping Road.
1 Calver Place
Solid wall. Current dwelling constructed in 2010. Secondary street frontage to Chipping Road and Empire Avenue.
Based on the evidence before me, in this section of Chipping Road, there are six properties. Of these, four properties have no walls or fences, two have solid walls and both have their secondary street frontage to Chipping Road.
The applicant submits, taking into account the definition of 'streetscape' in LPS 1,[61] the Tribunal's decision in Romano and Town of Cambridge [2022] WASAT 44 (Romano) is relevant in this case. In Romano at [52], Member Lavery considered the existing streetscape of Crieff Street in Floreat and after assessing the evidence, formed the opinion the existing streetscape did not meet the desired future character (as described in LPP 3.1). In this case the applicant submits, and I accept, that because the majority of properties in the relevant streetscape where the subject site is located (between Bent Street and the public open space) have solid walls, this section of Chipping Road does not reflect the desired future character for City Beach described in LPP 3.1.[62] The applicant submits consideration of the character of the existing streetscape is a factor in this case,[63] and I accept the development provides a much better outcome than the existing solid walls which form the prevailing character of the Chipping Road streetscape.
Desired future character
[61] See [58].
[62] ts 135, 17 October 2022.
[63] ts 136, 17 October 2022.
The desired future character of the locality is set out in the relevant objectives[64] and the relevant desired future character statements[65] of LPP 3.1.
[64] Set out earlier at [35].
[65] Set out earlier at [36].
The essence of these provisions, and the consideration at the heart of this issue, is the requirement to ensure that development maintains an openness to the streetscape to provide a visual connection between the street and the landscaped garden and the dwelling beyond. At the hearing, this was succinctly put in a question from Ms Georgiou to Mr Cake, which resulted in the following exchange. Mr Cake accepts the proposition that being able to see into the front garden and the house beyond satisfies the characteristic of permeability associated with the concept of openness in LPP 3.1.[66]
MS GEORGIOU: [respondent's counsel]
… And you would have heard earlier when I went through the garden suburb idea and that the permeability was part of the open style and the open idea in LPP 3.1 is that you can see into both the garden, but also into the houses. So being able to see into the garden satisfied those characteristics, doesn't it?
MR CAKE:Yes.
[66] ts 68, 17 October 2022.
I accept this is an appropriate approach to consider the development and to assess whether it maintains the required openness in the streetscape to meet the desired future character of City Beach.
When considering the relevant objectives of LPP 3.1, Mr Algeri, under cross-examination, accepts the development provides for a safe and attractive pedestrian environment[67] and that passive surveillance[68] and the design quality of the development[69] are not in issue. Mr Algeri accepts the development does not isolate the single dwelling at the subject site from Chipping Road.[70] Further, Mr Algeri says he does not have a problem with objective 2 which involves design principles to encourage innovative solutions and creative built form outcomes.[71]
[67] As required by objective 4 of LPP 3.1, ts 106, 17 October 2022.
[68] As required by objective 4 of LPP 3.1, ts 106, 17 October 2022.
[69] As required by objective 3 of LPP 3.1, ts 106-107, 17 October 2022.
[70] ts 108, 17 October 2022, relevant to objective 5 of LPP 3.1.
[71] ts 80-81, 17 October 2022.
Under cross-examination by Mr Skinner, Mr Algeri accepts assessment of the pedestrian environment for the development should be from the dual use path located on the western side of the Chipping Road (because Chipping Road has no footpath on the eastern side, where there is a grassed verge abutting the subject site).[72] Further crossexamination of Mr Algeri on this point resulted in the following exchange, which identifies that the development does provide for visual permeability across the frontage of the subject site (when observed by a pedestrian using the dual use path).[73]
[72] ts 100, 17 October 2022.
[73] ts 102 and 104, 17 October 2022
MR SKINNER: [applicant's counsel]
So any one point or even the individual points shown in image 1, 7 and 8 you actually can see through the majority of the fence along the frontage of the property.
MR ALGERI: You have some - well, you certainly - I accepted your point as you move away from the fence, then the spacing and the depth of the blades become less relevant because you get to see straight through, so it has got greater visual permeability on the western side. Same principles apply if you're looking straight on you can basically see straight in, but on acute angles there is - there's still some filtering but you can see through.
…
MR SKINNER: So, Mr Algeri, in terms of someone walking along the footpath who's looking over to the property rather than looking at the beach and don't doing that - but if you're looking towards the property while you're walking down that footpath, within the space of 10 metres you're going to go from a point, whether you're coming from the north or the south. You're going to go from a point at the edge of the property or one of the boundaries to a point in the middle, and in the middle you can essentially see through the entire frontage of the fence.
MR ALGERI: In the middle, yes, you would, yes.
MR SKINNER: So to walk that distance of 10 metres, we're talking maybe five or six seconds.
MR ALGERI: Yes.
MR SKINNER: So in the course of a five or six second period of time if you were looking and you would see through that fence for the entirety of the front length, it's also agreed that while - certainly at an angle, the fence might or does appear to be solid. It's also obvious to anyone walking past that the fence is not, in fact, solid.
MR ALGERI: For anyone walking past, no. If they're looking at the property from a number of different vistas, yes, that's correct.
MR SKINNER: So even the portions, as you walk along, might appear solid at an angle, and within a few seconds as you move up the road you can see that they're not actually solid.
MR ALGERI: Correct, yes.
I accept this evidence of Mr Algeri. The development permits a pedestrian to see through giving an open view to the front garden and the single dwelling beyond, and as result I consider the development meets the relevant objectives[74] and the relevant desired future character statements[75] in LPP 3.1.
[74] Identified earlier at [35].
[75] Identified earlier at [36].
Considering my earlier observations about the prevailing streetscape character,[76] and my observations as to future character, I consider the development meets the relevant objective, cl 5.2(a), and design principle, cl 5.2.4, P4, of the R-Codes.
Relevant sub-clauses of cl 67(2) of the Deemed Provisions
[76] At [60] and [63].
Turning now to cl 67(2) of the Deemed Provisions, the parties agree, and I accept, subclauses (a), (b), (c), (g), (m), (n) and (w) are relevant in this case.[77] I will consider these in turn.
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area[.]
[77] Respondent's SIFC, paras 32-33, Exhibit 3; Applicant's SIFC para 7, Exhibit 7.
As mentioned at [22], LPS 1 incorporates the R-Codes into the scheme. The relevant design principles of the R-Codes provide the basis for assessment of the development. LPS 1 also provides for the Scheme Area to be divided into precincts and the subject site is in Precinct P1: City Beach.[78] The respondent submits cl 9(e) of LPS 1 is relevant and this aim of the scheme is:[79]
(e)to ensure that the use and development of the land is managed in an effective and efficient manner within a flexible framework which: -
(i)recognises the individual character and needs of localities within the Scheme Area; and
(ii)can readily respond to change.
[78] Precinct P1: City Beach is illustrated in LPP 2.1, at pages 89 of the Respondent's s 24 Bundle of Documents.
[79] Respondent's s 24 Bundle of Documents, Item 5, page 9, Exhibit 4.
I have considered the relevant local planning framework, which I accept is contemporary and recognises the individual character needs of localities in the Scheme Area (in this case the City Beach Precinct). The development is considered to satisfy the objectives and desired future character for City Beach in LPP 3.1[80] and therefore the relevant aims and provisions of the scheme.
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]
[80] See [64]-[70].
Clause 67(2)(b) involves a consideration of orderly and proper planning in the context of, in this case, LPS 1. Mr Cake's evidence is the development meets this requirement,[81] whereas Mr Algeri considers the development to be contrary to the orderly and proper planning of the City Beach precinct because he says the development does not accord with the 'garden suburb' principles detailed in the future character statements of LPP 3.1.[82]
[81] Witness Statement of Reegan Cake, para 70, Exhibit 8.
[82] Witness Statement of Joe Algeri, para 72 (page 33), Exhibit 5.
When considering orderly and proper planning in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [180], her Honour Pritchard J explains:
The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
In applying the relevant planning framework to this case, including considering the relevant future character statements,[83] I am satisfied on the evidence before me, that the development is consistent with the requirements of that framework.[84]
[83] See [64]-[70].
[84] See [69]-[70].
Further, Pritchard J observes in Marshall, at [181], that 'there is no reason why planning legislation and instruments will be the only matters warranting consideration in determining what is a "proper" planning decision'. On the submissions and evidence before me, I am satisfied the orderly and proper planning considerations that arise in this case are identified in the applicable planning framework and that, having reviewed the development against this framework, I consider it satisfies the requirements of orderly and proper planning.
(c) any approved State planning policy[.]
The R-Codes is a relevant State planning policy and as explained earlier at [22] the R-Codes are to be read as part of LPS 1 in these proceedings.
(g) any local planning policy for the Scheme area[.]
In this case LPP 2.1 and LPP 3.1 are relevant. The relevance of LPP 2.1 is detailed earlier at [21], and LPP 3.1 is considered at [63] [70].
(m) the compatibility of the development with its setting including —
(i) the compatibility of the development with the desired future character of its setting; and
(ii) the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
The desired future character (outlined in LPP 3.1) has been considered at [64] - [70]. The height, bulk or scale of the development are not in contention. The appearance of the development and its relationship to the existing streetscape is considered at [56] - [63].
(n) the amenity of the locality including the following —
…
(ii) the character of the locality[.]
Here, the respondent identifies the definition amenity in the Deemed Provisions is relevant. Amenity:[85]
means all those factors which combine to form the character of an area and include the present and likely future amenity.
[85] Respondent's SIFC, para 30.
In this case, the present character of the locality is considered at [56] - [63] and consideration is given to likely future character at [64] [70]. The amenity of the locality is informed by the observed character and the evidence of the planning experts. Further, LPP 3.1 details that the origins of City Beach lie in the Garden City Movement of the early twentieth century.[86] In relation to the treatment of the front setback area of single houses, LPP 3.1 says:[87]
… Front gardens are typically open and well-landscaped with stands of mature vegetation and a large street setback. These setbacks and building separation, along with low or permeable fencing has resulted in an open and leafy character within the City Beach precinct.
[86] Respondent's s 24 Bundle of Documents, page 96, Exhibit 4.
[87] Respondent's s 24 Bundle of Documents, page 97, Exhibit 4.
Mr Algeri accepts the setbacks and building separation of the single dwelling at the subject site are consistent with the character of City Beach.[88] The respondent has previously approved the existing low height rendered masonry fencing with brick piers. Landscaping is also provided in the front setback consistent with character of City Beach. Mr Algeri, under cross-examination, made a critical concession, correctly in my view, that the development allows for the landscaping in the front setback of the subject site to be viewed by a pedestrian using the dual use path.[89] Further, when considering the present amenity of the locality a variety of treatments are observed at the Chipping Road lot boundary. This includes no fencing and solid walls. The development, which provides infill fence panels and gates, is consistent with the present amenity of the locality and it is also consistent with the likely future amenity.[90]
(w) the history of the site where the development is to be located[.]
[88] ts 112-113, 17 October 2022.
[89] See [68].
[90] See also [70].
The procedural history is outlined earlier at [37] - [46]. The respondent submits this application for review is the third attempt at seeking approval under the same planning framework and says the prior decisions to refuse the development were the correct decision.
In arriving at a decision in this case, as outlined earlier at [7], I am required to consider the matter afresh and to examine the evidence now before me.[91] Therefore, I do not accept the respondent's submission that I am in some way bound by the respondent's prior decisions to refuse the development. Further, the earlier refusal decisions have not been the subject of determination by the Tribunal and there has not been an abuse of process.[92]
[91] See also Smith J in Argyle v State Administrative Tribunal, [2022] WASC 317 at [25]-[31].
[92] Section 47 of the SAT Act enables the Tribunal to dismiss or strike out applications which it determines involve an abuse of process.
Also relevant to the history of the subject site, the applicant says (and the respondent accepts) that previously a solid wall was present, and the development is considerably more permeable than the previous solid wall.[93] I do not place significant weight on the applicant's submissions about this fact. The solid wall, together with the earlier dwelling, were demolished and the subject site cleared. In these circumstances the redevelopment, in my view, should align with the current planning framework.
Findings - Issue 1
[93] ts 136, 17 October 2022.
In respect to matter DR 76 of 2022, I find the development should be granted development approval for three reasons.
First, the development is consistent with relevant objective, cl 5.2(a), and design principles in the R-Codes, in particular cl 5.2.4, P4. It is uncontroversial the development is of low height and permits surveillance (consistent with cl 5.2.3). The design of the development is of high quality, and it enhances the streetscape, consistent with cl 5.1.2.
Second, when applying the relevant design principles of the RCodes detailed above at [88], the development is also consistent with the local planning framework, in particular LPP 3.1, having regard to the relevant objectives and the relevant descriptions of desired future character for City Beach. The development maintains a sense of openness and connection to the street because it allows pedestrians using the dual use path in Chipping Road to view through the development to the front garden and the dwelling beyond.
Third, giving due regard to the relevant matters identified in cl 67(2) of the Deemed Provisions, the development is consistent with the planning considerations that arise under each of those matters, including the requirements of orderly and proper planning in cl 67(2)(b).
Issue 2 - whether the directions notice, requiring removal of the development, should be set aside
At the hearing the Mr Skinner accepted that if the application for the approval of the development is refused, there will be no further reason to set aside the direction and the applicant accepts, in those circumstances, it would have to comply with the direction. Mr Skinner submits the opposite is also true, that if the Tribunal were to find that the development should be approved (as it has) then the direction should be set aside.[94]
[94] ts 22-23, 17 October 2022.
Ms Georgiou did not have instructions from the respondent at the hearing on the directions notice, however she accepts the logic of the applicant's submissions.[95] On 20 October 2022, after the hearing, the respondent confirmed if the development was approved by the Tribunal, the notice should be set aside.
Findings - Issue 2
[95] ts 23, 17 October 2022.
As a consequence of my findings in DR 76 of 2022, I find that for DR 247 of 2021 the Town's decision to issue the directions notice pursuant to s 214 of the PD Act, requiring removal of the development, should be set aside because there is nothing now for the notice to do. In its place, I will substitute a decision that no direction be given.
Conclusion
The development involves five infill fence panels located on the front boundary and one panel on the southern boundary (within the front setback area) and two gates on the front boundary, all which the applicant installed at the subject site without development approval.
For DR 76 of 2022, weighing up my findings in respect to issue 1, the correct and preferable decision is to set aside the deemed refusal and approve the development because it is consistent with:
1)the R-Codes, and in particular the design principle set out in cl 5.2.4, P4.
2)LPP 3.1, and in particular the relevant objectives and the desired future character statements, when applying cl 5.2.4, P4 and cl 5.1.2, P2.2 of the R-Codes.
3)the relevant matters cl 67(2) of the Deemed Provisions, being matters (a), (b), (c), (g), (m), (n) and (w).
Accordingly, I will set aside the Town's deemed refusal of the development and substitute a new decision to approve the development.
For DR 247 of 2021, as a result of approval of the development, the correct and preferable decision in respect to issue 2 is to set aside the respondent's decision to issue the directions notice, because there is now nothing for the notice to do. In its place, I substitute a decision that no direction be given.
Conditions
In the event the Tribunal determined that the development should be approved, the respondent provided one draft without prejudice condition.[96]
The development shall at all times comply with the application and the approved plans.
[96] Respondent's Draft Without Prejudice Condition, Exhibit 6.
This condition is accepted by the applicant.[97] However, the proposed condition is unnecessary, in my view, because it does nothing more than require compliance with the application and approved plans which is an inherent part of the grant of a development approval to an applicant. What is necessary is to identify the approved plans, and this is achieved by identifying the relevant drawing numbers in the orders.[98]
Orders
[97] ts 6, 17 October 2022.
[98] The approved plans are drawings number A1.00, A1.01, A3.00, A7.00 and A7.10, Exhibit 1.
For these reasons, the Tribunal makes the following orders:
DR 76 of 2022
The Tribunal orders:
1.The application for review is allowed.
2.The deemed refusal of the development by the respondent is set aside and retrospective development approval is granted for the development at No 62, Chipping Road, City Beach, consisting of five infill panels of the front fence, one infill panel fence to the southern boundary (located within the front setback) and two front gates, under the Metropolitan Region Scheme and the Town of Cambridge Local Planning Scheme No 1, in accordance with the approved plans, being drawing numbers A1.00, A1.01, A3.00, A7.00 and A7.10.
DR 247 of 2021
The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent to issue a written direction pursuant to s 214 of the Planning and Development Act 2005 (WA) is set aside and a decision is substituted in its place that no direction be given.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
3 JANUARY 2023
ANNEXURE A
Local Planning Policy 3.1 - Streetscapes (LPP 3.1)
DEFINITIONS
…
Open style
In relation to street walls and fences:
1.Street walls and fences can be solid up to 0.75m from natural ground level, measured from the level on the street side.
2.For portions of street walls and fences (including gates) above 0.75m in height:
a) With the exception of walls housing letterboxes and meter boxes, open and/or visually transparent elements are to be distributed generally evenly along the length of the street wall or fence; and
b) Pillars to be no greater than 400mm by 400mm
c) A minimum of 50% of the surface area between pillars above 0.75m of the total street wall or infill panels, as viewed from the street boundary, is to be open and/or visually transparent; and
d) Where a street wall or fence (excluding pillars) contains infill panel/gates comprising blades, rails or slats with a depth greater than the width:
i. the gaps or visually transparent portions shall be 1.5 times the depth of the blade, rail or slat, and
ii. the blade, rail or slat shall have a maximum width of 10mm, and
iii. the blade, rail or slat shall have a maximum depth of 70mm.
…
Street Walls and Fences (Streetscape - Design Element 5.2.4 of the RCodes)
5.1. Deemed-to-Comply Requirements
Pursuant to Clause 7.3.1(a) of the R Codes, the following provisions replace the deemed-to-comply requirements in Clause 5.2.4 C4 of the RCodes with the following deemed-to-comply requirements:
C4.1 Street walls and fences within the primary street setback area, including along the side boundary, shall:
i.be open style;
ii.be a maximum height of 1.8m above natural ground level;
iii.have a maximum pier height of 2.0m above natural ground level;
iv.have a maximum pier or post width of 0.4m in any direction; and
v.be constructed of a material compatible with the dwelling or adjoining fence, and is not to be constructed of fibre cement or metal sheeting.
0
9
6