Freeman and City Of Subiaco - [2009] WASAT 89

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FREEMAN and CITY OF SUBIACO [2009] WASAT 89

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 MAY 2009

FILE NO/S: DR 54 of 2009

BETWEEN: IAIN ROBERT FREEMAN
VIVIANA FREEMAN
Applicants
AND
CITY OF SUBIACO
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Condition of development approval requiring proposed two storey development to be converted to single storey plus loft - Tribunal confirmed condition - Whether Tribunal erred in law in determination that proposed development, without disputed condition, would have adverse amenity impact in terms of bulk and scale for adjoining property - Whether Tribunal erred in law by failing to give reasons in accordance with s 77 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 27(4)(h), cl 42(1)
Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Act 2004 (WA), s 3(1), s 60(2), s 77

Result:

Application for review of Tribunal's determination dismissed

Category: B

Representation:

Counsel:

Applicants: Mr P J McQueen
Respondent: Mr C A Slarke

Solicitors:

Applicants: Lavan Legal
Respondent: McLeods

Case(s) referred to in decision(s):

Freeman and City of Subiaco [2008] WASAT 303
Fryer and City of Subiaco [2006] WASAT 199
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Williams and Western Australian Planning Commission [2005] WASAT 10

REASONS FOR DECISION:

Summary of Tribunal's (Judicial Member's) decision

Mr and Mrs Freeman sought review by a judicial member of a determination of the Tribunal in a planning review proceedings in which the Tribunal confirmed the decision of the City of Subiaco to require a proposed two storey structure at the rear of Mr and Mrs Freeman's property to be converted to single storey plus loft. Mr and Mrs Freeman argued that the Tribunal erred in law in finding that the proposed development, without the disputed condition, would have an adverse amenity impact in terms of bulk and scale on an adjoining property. They also argued that the Tribunal failed to give legally adequate reasons for its finding.
The President determined that the Tribunal did not err in law. The Tribunal followed the general approach to the assessment of amenity previously endorsed by the Tribunal. The Tribunal found that the bulk and scale of the proposed two storey structure would have an undue adverse impact on an adjoining property. This finding was reasonably open. The development application could not, therefore, be approved without the disputed condition. The Tribunal's reasons included its findings on material questions of fact, referring to the evidence or other material on which those findings were based.
The President, therefore, dismissed the application for review and affirmed the determination of the Tribunal.

Application for review by judicial member

Mr and Mrs Freeman have applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 30 December 2008 in Freeman and City of Subiaco [2008] WASAT 303 (reasons). In its determination, the Tribunal confirmed the decision of the City of Subiaco (City of Council) to grant conditional development approval for alterations and additions to Mr and Mrs Freeman's house at No 207 Heytesbury Road, Subiaco (site), including a two storey component at the rear of the site incorporating a double garage, accessed from a rear right of way, and a full second level above. In particular, the Tribunal confirmed the following condition which was disputed by Mr and Mrs Freeman:
The proposed upper floor area above the garage is to be modified such that it is in a loft configuration which has a wall height of no more than 3.6 metre and overall height of 6.5 metre as defined by the Scheme.
The proposed rear two storey component would have a maximum wall height of 5.8 metres and a maximum overall height of 7.12 metres: reasons at [117] and [120]. The 'Scheme' referred to in the disputed condition is the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme), under which the development approval was sought and granted.
Although the Tribunal made a number of findings in favour of Mr and Mrs Freeman, it dismissed their application for review, in summary, for the following reasons set out at [6] - [7] of the reasons:
Ultimately, the application for review was unsuccessful because it failed a combination of two clauses within the [Scheme]. Clause 27(4)(h) of the [Scheme] required the consideration of the scale and relationship of the proposal to existing buildings and surroundings. Clause 42(1) of the [Scheme] required proposals to comply with maximum heights and then provided discretion to approve up to a new maximum height subject to no undue adverse impact on adjoining residential sites.
The Tribunal determined that discretion could not be exercised to allow the increased wall heights because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining lot.
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Ross Easton, who is not a legally qualified member.

Grounds for review

Mr and Mrs Freeman contended that Senior Sessional Member Easton erred in law in the following four respects:
1.Failing to apply the correct test to determine the effect of the proposal on the amenity of the area, when dismissing matter DR 365 of 2008 on the basis of a finding of an undue detrimental effect on the amenity of the residence of the [Mr and Mrs Freeman's] neighbour, Mr Loney.
2.Further, or in the alternative, failing to correctly apply the appropriate test to determine the effect of the proposal on the amenity of the area, thereby dismissing matter DR 365 of 2008 on the basis of a finding of an undue detrimental effect on the amenity of the residence of the [Mr and Mrs Freeman's] neighbour, Mr Loney.
3.Failing to exercise discretion to grant approval to the proposal, according to sound town planning principles, when the weight of the evidence supported such an approval.
4.Failing to produce the correct and preferable decision at the time of the decision upon the review, in accordance with s 27(2) of the [SAT Act].
For the following reasons, I do not consider that the Tribunal erred in law in any of these respects. It is convenient to address grounds 1 and 2 together and grounds 3 and 4 together.

Grounds 1 and 2 - consideration of amenity

As noted earlier, the Tribunal dismissed Mr and Mrs Freeman's application for review because it found that the application 'failed a combination of two clauses within [TPS 4]', namely cl 27(4)(h) and cl 42(1). Clause 27(4)(h) required the Tribunal to have regard to 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure': reasons at [92]. As the Tribunal noted at [116] of its reasons, cl 42(1) of the Scheme provides as follows:
(a)notwithstanding any provisions of the residential design codes to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)the Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height, and 6 metres wall height where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
The site is zoned 'Residential' and has a residential density coding of 'R20' under TPS 4. As the maximum overall height of the proposed rear two storey structure is 7.12 metres and as the maximum wall height of that building is 5.8 metres, the Tribunal held, correctly, at [120], that:
The application cannot, therefore, be approved unless the Tribunal is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality.
The Tribunal's essential reasoning for dismissing Mr and Mrs Freeman's application for review was expressed at [96] - [105] of the reasons as follows:
The final matter to consider in this issue [, namely whether the proposal complies with clause 27(4) of TPS 4] is [paragraph] (h) [of clause 27(4)], the relationship of the proposed structure to existing structures. Here it is appropriate to consider the backyards created by the position of the existing structures as well as any relevant submissions which, in this case, included evidence from an objecting adjoining neighbour.
It must be understood that the respondent's principal objection is to the location of the excess scale and bulk because it is in the rear of the property rather than in the central part of the site where dwellings are traditionally located. There was an objection from the eastern adjoining neighbour, Mr Loney. The Council's position becomes clearer when the location of the excess bulk and scale is viewed in the context of this neighbour. Mr Loney's house is two storeys. Whether it is two storeys as defined in the Scheme, or a loft, or a combination of both is irrelevant. What is significant is that the second storey is contained within the central part of the site. Mr Loney's neighbour on his eastern side also has a two storey house where most of the bulk is contained within the middle third [of that property]. Therefore, Mr Loney's situation is consistent with the character of the locality described by the Council - that is, a pattern where any second level development is generally contained within the middle or central portion of the site and the rear portion is generally free for backyard space, sheds or other similar single-storey structures such as garages.
Mr Loney appeared as a witness. The Tribunal has some concerns with his evidence, because his witness statement was based on the original plans, and he was not shown the revised plans until half an hour before he appeared as a witness. After being cross-examined on whether he fully understood that the wall height had been reduced from 7.1 metres to 5.8 metres and that the length had been reduced by over 10% so that it was now less than 9 metres, and that the setback had been increased, Mr Loney concluded he understood that changes were made by the applicants but that "it is still a pretty huge brick wall".
It was agreed by the expert witnesses that the proposed side setback met the performance criteria of the [Residential Design Codes of Western Australia (2008) (Codes)]. It was also apparent that a 3.6 metre high boundary wall that forms part of the applicants' existing garage will be removed and set back by 1 metre. The proposal, in terms of bulk and scale, meets the performance requirements of the Codes. However, as the Tribunal determined in Dumbleton and Town of Bassendean [2005] WASAT 145, at [22] -[23], compliance with the Codes does not mandate approval of an application under a town planning scheme such as TPS 4.
The question remains whether the proposed location of the bulk associated with the excess height meets the amenity expectations of TPS 4. "Amenity" is defined in TPS 4 as "all those factors which combined to form the character of an area and include the current and likely future amenity".
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74[; (2006) 150 LGERA 116], the President, Barker J, discussed at [21] - [22] the principles of amenity, and found that assessment of amenity should not only include the opinions of experts but also the subjective views of residents, and that the assessment should consider the present and likely future amenity.
In terms of bulk and sale, the subjective view of Mr Loney reflects the view of the City that the expectations that backyards will be free of excess height, bulk and scale. Apart from the reference to a middle third preference in the Streetscape Policy, the City's planning framework does not specifically exclude development from the rear third or "backyard", but it does have a general presumption of single-storey development.
As the Tribunal found in Fryer and City of Subiaco [2006] WASAT 199 at [80]:
"While in other local government areas which do not have the equivalent of cl 42(1) in their applicable schemes, the extent of impact on Mr Prudence's backyard in terms of loss of aspect of sky and trees and the consequential bulk and scale, might not be an undue adverse impact, in the particular planning context of cl 42(1), the Tribunal finds that it is."
The circumstances are different: for example, there is no loss of trees involved, but the principles are the same. There is a perceived loss of amenity resulting from apparent bulk and scale which, in turn, arise from the emphasis on height restrictions as outlined in cl 42(1) of TPS 4.
Therefore, the Tribunal finds that the proposal has a problem arising out of cl 27(4)(h) of TPS 4 which will result in a failure to comply with cl 42(1)(b) of TPS 4.
Mr and Mrs Freeman presented essentially four arguments in support of their contention that the Tribunal erred in law in its consideration of the amenity impacts of the proposed development.
First, Mr and Mrs Freeman submitted that the Tribunal failed to apply the second and third limbs of what they called the 'test for amenity' stated in the decision of the Town Planning Appeal Tribunal in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora v Shire of Kalamunda) at 304 that 'the determination of the amenity of the locality is a question of fact that consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. Justice Barker determined in Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay Developments Pty Ltd and Shire of Kalamunda) at [21] that 'the general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed'. Mr and Mrs Freeman argued that, in this case, Senior Sessional Member Easton erred in law in that he did not determine:
•the manner in which the proposed extensions may affect the existing amenity; and
•the degree to which the proposed extensions will have an effect on the existing amenity.
However, it is apparent from the reasoning at [96] - [105] of the reasons that Senior Sessional Member Easton, while not expressly referring to Tempora v Shire of Kalamunda, followed the general approach to the assessment of amenity impact set out in that decision. In particular, he found that:
•the existing amenity in the locality of the site includes generally an absence of two storey structures in or adjoining the backyards of houses;
•the proposed extensions would affect the existing amenity by siting a two storey structure at the rear of the site adjoining Mr Loney's backyard; and
•the proposed extensions will have an unacceptable effect on the existing amenity of the locality, and in particular on Mr Loney's residential amenity in terms of excessive visual bulk and scale, as a result of the siting of the two storey structure at the rear of the site adjoining Mr Loney's backyard.
On the basis of these findings, which follow the general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda, it was reasonably open to the Tribunal to find, as it did expressly at [105] and [122] of the reasons, that it was not satisfied that there would be 'no undue adverse impact' on adjoining residential sites. The adverse impact found by the Tribunal arose 'out of the location of the over height walls' (at [122]), namely at the rear of the site, whereas 'second level development is generally contained within the middle or central portion of the site and the rear portion is generally free for backyard space, sheds or other similar single-storey structures such as garages' (at [97]).
Second, Mr and Mrs Freeman submitted that Senior Sessional Member Easton erred in law in applying the Tribunal's reasoning in Fryer and City of Subiaco [2006] WASAT 199 (Fryer and City of Subiaco). However, as Senior Sessional Member Easton said at [104] of the determination, 'the principles are the same' in this case as in Fryer, because both cases involved consideration of the same clause of TPS 4 and the visual impact of bulk and scale of a proposed development on the backyard area of an adjoining property. While there were some differences between the cases, it is clear from [104] of the reasons that Senior Sessional Member Easton was aware of these. In both Fryer and City of Subiaco and the present case, the Tribunal considered that the objection of an adjoining neighbour was well founded, having regard to the characteristics, including the planning framework, of the locality.
Third, Mr and Mrs Freeman submitted that Senior Sessional Member Easton erred in law 'in failing to apply the correct test of amenity, in that he did not have regard to the objective experts['] planning and architectural evidence, dealing with the extend [sic] of impact to [sic] which the proposal will have on the existing amenity of the adjoining residence'. In particular, Mr and Mrs Freeman referred to the evidence given by the designing architect, Mr Armstrong, at page 40 of the transcript of the hearing before Senior Sessional Member Easton on 21 November 2008, and the evidence of Mr Adam, a consultant town planner, at pages 96 and 117 of the transcript.
While, as can be seen from [96] - [105] of the determination, Senior Sessional Member Easton did not explicitly refer to Mr Armstrong's and Mr Adam's evidence in this respect, he did not err in law in failing to do so. Mr Armstrong simply said that he did not 'understand' how the proposed development would impact adversely on the amenity of adjoining properties and that the design had been revised to address the neighbour's concerns regarding height and bulk.
However, it is clear from the Tribunal's reasons set out earlier that Senior Sessional Member Easton was aware of the revisions to the design of the proposal. Furthermore, having regard to Senior Sessional Member Easton's reasoning as to why the proposed development would have an unacceptable visual impact in terms of bulk and scale when seen from Mr Loney's backyard, it was not necessary for him to explicitly reject Mr Armstrong's very general observation that he did not 'understand' how the development would have an adverse impact. It is clear from the extract from the reasons set out earlier how and why the Tribunal understood that the proposed development would have an adverse amenity impact in consequence of its bulk and scale juxtaposed against Mr Loney's backyard.
Mr Adam expressed the opinion that 'proposed height is compatible with those of surrounding developments' and that the development would have 'no undue adverse effect'.
However, it is clear from the extract from the determination set out earlier that the Tribunal found that the height of the proposed two storey structure at the rear of the site would not be compatible with surrounding developments, because 'the rear portion [of surrounding properties] is generally free for backyard space, sheds or other similar single-storey structures such as garages'. Furthermore, having regard to the specific reasoning of the Tribunal, it was not necessary to expressly reject the bald opinion that the proposed development would have no undue adverse effect. This was the very issue that the Tribunal had to decide for itself under cl 42(1) of TPS 4. The Tribunal found that the proposed development would have an undue adverse effect because of excessive bulk and scale of two storey built form adjoining Mr Loney's backyard. This finding was reasonably open.

Fourth, Mr and Mrs Armstrong submitted that Senior Sessional Member Easton erred in law 'in relying on a mere expectation of a neighbour (based on criticised evidence)' and a mere 'perception' of loss of amenity.
However, it is apparent, when the reasoning set out earlier is read as a whole, that the Tribunal considered Mr Loney's expectation of residential amenity in terms of bulk and scale of built form was reasonable, having regard to the general absence of such structures in the rear parts of properties and the planning framework, particularly cl 42(1) of TPS 4. While Senior Sessional Member Easton candidly noted that he had 'some concerns with [Mr Loney's evidence] because his witness statement was based on the original plans, and he was not shown the revised plans until half an hour before he appeared as a witness', it appears that the Tribunal ultimately accepted Mr Loney's further evidence that 'he understood that changes were made by the applicants but that "it is still a pretty huge brick wall"'. It was reasonably open to the Tribunal to make this finding and, moreover, to essentially accept that Mr Loney's concern was well founded in the circumstances of the case.
Finally, while Mr and Mrs Freeman criticised Senior Sessional Member Easton for having found only that 'there is a perceived loss of amenity resulting from apparent bulk and scale', rather than making 'an express finding that there will be undue adverse impact on adjoining residential sites as a function of the bulk and scale of the proposed extensions', it is plain, when the reasoning at [96] - [105] and [122] is read as a whole, that the Senior Sessional Member did make the finding that the proposed development, absent the disputed condition, would have an undue adverse impact on adjoining residential sites as a function of bulk and scale.
It is apparent, when the extracted reasoning is read as a whole, that the Tribunal used the word 'perceived' not in the sense of referring (only) to Mr Loney's personal perception, or expectation, but in terms of how the proposed building, as constructed, would actually be perceived when viewed from Mr Loney's property. 'Perception' of apparent visual bulk and scale of built form is a concept that is well understood in town planning assessment. It is clear that the Tribunal considered Mr Loney's residential amenity expectation to be reasonable, having regard to the planning circumstances of the case.
Paragraph 7 of the reasons was a correct summary of the Tribunal's reasoning for the determination:
The Tribunal determined that discretion could not be exercised to allow the increased wall heights because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining lot.
It follows that grounds 1 and 2 have not been established.

Grounds 3 and 4 - weight of evidence and correct and preferable decision

These 'grounds' do not involve any question of law. As the City contended, Mr and Mrs Freeman's complaint is, ultimately, that Senior Sessional Member Easton 'ought to have come to a different conclusion on the evidence before him'. As Barker J said in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17], 'the relative significance or weight to be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the Senior [Sessional] Member to determine for himself, and do not ground any error of law' (citations omitted).
Two further specific criticisms made by Mr and Mrs Freeman in the course of their written submissions should be addressed.
First, they contended that there was inconsistency in findings made by the Tribunal. However, properly assessed, there was no inconsistency. While Senior Sessional Member Easton made certain findings in favour of Mr and Mrs Freeman, including in relation to amenity considerations, the findings were either expressly limited to exclude visual bulk and scale or were made in a context where that was obvious. Furthermore, while, at [145] of the reasons, the Senior Sessional Member found that the proposal is 'unobjectionable', that finding was made in the context of a discussion regarding the issue of adverse planning precedent. When the determination is read as a whole, it is plain that this finding did not amount to a decision that the amenity impact of the proposal on the neighbouring property in terms of bulk and scale was unobjectionable. In fact, although nothing turns on it, the finding for the purposes of adverse planning precedent that the proposal was 'unobjectionable' was inconsistent with the reasoning expressed at [95] - [105]. As the City submitted, the correction of this error 'would lead to the decision being reinforced, not set aside'.
Finally, in their submissions in reply, Mr and Mrs Freeman referred to s 77 of the SAT Act which obligates the Tribunal to give reasons for a final decision and, in subsection (2), states that such reasons 'have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based'.
Mr and Mrs Freeman contended that the Tribunal's determination did not satisfy s 77 of the SAT Act, because the Senior Sessional Member did not refer to the evidence of Mr Armstrong and Mr Adam, any evidence or material on which it based its decision to overcome its initial concerns regarding Mr Loney's evidence, or refer to any basis on which he found that the proposed development would have an undue adverse impact on amenity in terms of bulk and scale.
However, for reasons discussed in relation to grounds 1 and 2 above, the Tribunal's reasons relevantly included its findings on material questions of fact, referring to the evidence or other material on which those findings were based. Given the reasoning expressed, it was unnecessary for the Tribunal to expressly refer to and reject the bald opinions of Mr Armstrong that he did not 'understand' how the proposed development could have an adverse effect and of Mr Adam that the development would have 'no undue adverse effect' on adjoining residential sites. The Tribunal referred to the revisions to the proposal and found that the two storey height of the proposed structure at the rear of the site was not compatible with other structures, given that the rear areas of properties were generally free of such tall structures.
The Tribunal did refer to the evidence or material on which it based its decision to overcome its initial concerns regarding Mr Loney's evidence, namely the fact that Mr Loney was appraised of the changes to the proposal, understood the changes, but maintained his concern that 'it is still a pretty huge brick wall'.
Finally, the Tribunal clearly referred to the basis on which it determined that the proposed development would have an undue adverse impact on amenity in terms of bulk and scale, namely the siting of a two storey structure at the rear of the site, in a context where there was a pattern that second level development was generally contained within the middle or central portion of a property and the rear portion was generally free for backyard space, sheds or other similar single storey structures, and the specific planning context created by cl 42(1) of the Scheme referred to in Fryer and City of Subiaco.
It follows that grounds 3 and 4 have not been established.

Conclusion

Mr and Mrs Freeman have not established any of the four grounds for review. The Tribunal did not err in law in its determination to confirm the disputed condition. It was reasonably open to the Tribunal to find, as it did, that, in the absence of the disputed condition, the discretion that was necessary to allow increased wall heights could not be exercised because the resultant apparent bulk and scale would have an undue adverse impact on the amenity of the adjoining property. It follows that the application for review by a judicial member should be dismissed.

Orders

The Tribunal makes the following orders:
The application for review is dismissed and the determination of the Tribunal in Freeman and City of Subiaco [2008] WASAT 303 is affirmed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT