GARNHAM and CITY OF MANDURAH - [2010] WASAT 106

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GARNHAM and CITY OF MANDURAH [2010] WASAT 106

MEMBER: MR J JORDAN (MEMBER)

HEARD: 15 JUNE 2010

DELIVERED : 23 JULY 2010

FILE NO/S: DR 488 of 2009

BETWEEN: DAVID GARNHAM
TRACEY GARNHAM
Applicants
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning - Planning and Development Act 2005 (WA) s 214(3) notice - Direction to comply with a planning consent - Condition of planning consent requiring finish to building wall on side boundary - Wall finish incomplete - Adverse impact of unfinished wall on locality - Complying with planning consent consistent with orderly and proper planning - Decision to issue direction affirmed

Legislation:

City of Mandurah Town Planning Scheme No 3
Planning and Development Act 2005 (WA), s 214, s 214(3), s 255, s 255(1)
State Administrative Tribunal Act 2004 (WA), s 9

Result:

The application for review dismissed
The decision of the City of Mandurah to issue the notice setting out the direction is affirmed
The direction varied to give applicants 90 days to alter the development to complete the building in accordance with the planning consent

Category: B

Representation:

Counsel:

Applicants: No appearance
Respondent: Mr G Worth (Representative)

Solicitors:

Applicants: No appearance
Respondent: City of Mandurah

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

Drake and City of South Perth & Anor [2005] WASAT 271

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings involved an application for review of directions issued by the City of Mandurah pursuant to s 214(3) of the Planning and Development Act 2005 (WA) which required the applicants to complete the rendering and painting of a partly rendered side wall of a five storey multiple dwelling development as required by the planning consent that had been granted for the development.
The Tribunal affirmed the City of Mandurah's decision to issue the direction in the interests of orderly and proper planning and because of the impact noncompliance with the planning consent would have on the amenity of the locality. The Tribunal did not find, in the circumstances in which the contravention of the planning consent took place, the timing of the service of the notice by the City or in the expense and inconvenience that might be involved in the remedying the contravention of the planning consent, reason to excuse the applicants from complying fully with the planning consent.
The Tribunal varied the notice by setting a time limit of 90 days within which the building was to be completed in accordance with the planning consent issued for the development.
This matter was heard on 15 June 2010 and the Tribunal reconvened on 23 June 2010 for the purposes of orally handing down its decision.
The following is an edited version of the transcript of the Tribunal's reasons.

Introduction

These proceedings involve an application brought by Mr David Garnham and Mrs Tracey Garnham (applicants), pursuant to s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the City of Mandurah (City or Council) on 21 December 2009 to give a direction to the applicants pursuant to s 214(3) of the PD Act.
The directions issued by the City required the applicants to alter their five storey multiple dwelling development (development) on No 1 (Lot 224) Florian Mews, Mandurah (site) to ensure that the building is completed in accordance with Planning Consent 5074 dated 3 August 2007 (planning consent) granted by the Council.
This matter was heard on 15 June 2010. Prior to the hearing, the Tribunal travelled to Mandurah to view the site and the immediate locality. Mr Gavan Worth, a building inspector and compliance officer of the City, and Mr Ian Eaton, a compliance officer of the City, attended the viewing and appeared at the hearing. The applicants were served with the same notices as the respondent but chose not to attend either the site viewing or the hearing, or to appoint an agent to represent them.

The development

The planning consent for the development, issued by the City pursuant to its City of Mandurah Town Planning Scheme No 3 (TPS 3) was more particularly for a five storey building of multiple dwellings built up to or close to the boundaries of the rectangular shaped site. At its southeastern boundary the building has frontage to a footpath built adjacent to a canal, and at the northeastern boundary, which fronts Marco Polo Drive, the wall of the building has zero setback. The northwestern wall of the building is on the Florian Mews boundary and it is this wall that includes roller doors to a garage.
The building also has zero setback from the southwestern boundary, which is the common boundary with adjoining No 3 Florian Mews (No 3). Number 3 has built on it a two storey single house with a pitched roof with a garage attached with access off Florian Mews. The house and garage on No 3 also have a zero setback from the common boundary with the site.
At ground level, the garage on No 3 is set back about 1 metre from the Florian Mews boundary leaving exposed to view about 1 metre of the southwestern wall of the development on the site. The southwestern wall of the development also extends four floors above the single storey garage and three floors above the plate height of the two storey house on No 3.
The planning consent included condition 6 which reads:
All exposed, external faces of tilt-up concrete boundary walls are to be painted and finished to the satisfaction of the City of Mandurah. The treatment of boundary walls is to be provided with the schedule of colours and textures to be submitted with the application for a building licence.
In the event, the development was varied and a building licence was issued for a southwestern wall constructed of brick and not concrete panels.
Accompanying the applicants' application for a building licence for the development was a letter dated 11 March 2008 from the applicants' builder, Ennis Construction Pty Ltd, to the City stating 'Wall render colour - Dulux Grey Pebble half strength'.
Building licence No 6.74571 dated 24 April 2008 issued for the development included condition No 39 which stated:
During construction the attached 'Construction Management Specification' is to be implemented at all times.
The attached 'Construction Management Specification' included, at cl 3 under the heading 'Ensuring the proper approvals have been obtained', the following:
Where it is proposed to use any part of an adjoining public or private property to undertake part of the building works, whether it be for storage, scaffolding or access to a building site, then permission in writing from the owner of that land must be obtained by the builder prior to utilising that land.
It was the submission of the City that in 2009 when the development was near practical completion it came to the City's attention that the southwestern wall of the development had not been finished as required by the planning consent.
At the viewing of the site on 15 June 2010, the Tribunal saw that the southwestern wall of the development had not been rendered for the height of the third storey above the house on No 3 and for the height of the second storey above the garage on No 3. The southwestern wall had also not been rendered at ground floor level where it extended beyond the garage on No 3 toward the Florian Mews boundary. The remainder of the southwestern wall had been rendered.

The direction

On 21 December 2009, the respondent issued a notice of direction pursuant to s 214(3) of the PD Act which included in the comment on the background that TPS 3 requires development to comply with TPS 3 and the development is being carried out otherwise than in accordance with TPS 3. The contravention was set out in the notice in a schedule as follows:
1.Pursuant to Clause 9.3(b) of the Scheme, a person must not carry out any development within the Scheme area other than in accordance with any conditions imposed.
2.The land, which is within the Scheme Area, is being developed other than in accordance with the conditions imposed on the Planning Consent granted by the City. Namely:
a.The external wall on the south western face of the building has not been finished to match the rest of the building.
Under the heading 'Direction', the notice included the following:
1.Pursuant to section 214(3) of the Scheme [sic], the City hereby directs you to alter the development to ensure the building is completed in accordance with Planning Consent 5074 dated 03 August 2007.
2.Should you fail to comply with this direction, you will commit an offence against section 214(7) of the Act and be liable to the penalty of $50,000 and in the case of a continuing offence, a further fine of $5,000 for each day on which the offence continues.
…
The applicant then applied to the Tribunal for review of the direction pursuant to s 255(1) of the PD Act.

Discussion

In Drake and City of South Perth & Anor [2005] WASAT 271, the Tribunal said at [92] it would be impossible and inappropriate to try and list all factors that would guide the exercise of the discretion by a local government to issue a direction under s 214 of the PD Act. At [93] to [97] the Tribunal did, however, identify five important matters for consideration in the exercise of the discretion. These considerations are as follows:
•It is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity.
•The impact of the contravention of the scheme on the affected locality and environment.
•The factual circumstances in which the contravention of the scheme took place.
•The time which has elapsed since the development was undertaken in contravention of the scheme.
•The expense and inconvenience which would be involved in remedying the contravention of the scheme.
As stated in the first of the above list of considerations, it is expected that, normally, a planning consent issued for a development, as in this instance, be complied with. The Tribunal considers that, unless there is found to be particular circumstances that dictate that the applicants' development be treated differently from others in the locality, then the planning consent should be complied with in the interests of the orderly and proper planning of the locality. Unless an exceptional circumstance is found, the Tribunal considers that the applicants might enjoy a private advantage in not complying with a development consent that others cannot enjoy.
To determine whether there are circumstances that identify this development as one deserving special consideration, the Tribunal will turn next to the impact on the affected locality of the noncompliance with the planning consent. Mr Worth described the unfinished section of the southwestern wall as being of random brickwork with seconds bricks, with some variation in brick size and some variation in brick colour, but with mostly red bricks. The remainder of the wall is cement rendered and of a light grey colour. Mr Worth's description was consistent with the appearance of the unfinished section of the southwestern wall observed by the Tribunal at the viewing of the site.
The respondent said there would be some view of the unfinished wall from a balcony on the house at No 3. The Tribunal noted at the site visit that the unfinished areas of wall were clearly visible when standing adjacent to houses extending along Florian Mews. From this aspect, most houses in the locality appeared to have zero setback from common boundaries between them and no other examples of unfinished walls were visible.
From adjacent to the canal, no unfinished wall was visible from the path in front of the house but from the path on the opposite side of the canal a section of unfinished wall was visible above the roof of the house on No 3.
This is not a mere technical breach of the planning consent discernable only to an expert. The unfinished sections of the southwestern wall of the development are clearly visible beyond the site, leaving the development with a standard of finish worse than that of other houses in the locality.
The Tribunal considers that the unfinished southwestern wall of the development has a clearly discernible adverse impact on the amenity of the Florian Mews locality and this impact warrants the completion of the development consistent with the planning consent.
Dealing next with the factual circumstances of the breach of the planning consent, the applicants' submission filed for the purposes of the hearing, exhibit 2, was in the form of a letter dated 3 June 2010 addressed to the Tribunal. This letter included the comment that the owner of No 3, Mr Berglund, would not allow the applicants '… onto or above his property without a substantial amount of financial compensation'. Also said by the applicants was:
However, it now leaves us in a position that Mr Berglund still will not allow us to render our wall and you [sic] along with the Mandurah City Council will be pursuing us to finish, but we can't.
The City referred to the written advice the applicants received before building commenced informing them that there should be written agreement with the neighbours to ensure access was available to carry out work.
The respondent had no knowledge of and the Tribunal was not advised of any written agreement between the applicants and the owner of No 3. As to any other form of 'agreement' there may have been between the applicants and the owners of No 3 that would have facilitated the completion of the development, that was not the subject of evidence produced at the hearing and, in any event, the terms of and the enforceability of any such agreement should one exist is in this instance a matter for the courts.
The Tribunal considers that the applicants' obligations in respect of finishing the southwestern wall of the development were clear and unambiguous, and known from when the planning consent was issued. The means of ensuring the required finish was achieved was also brought to the applicants' attention when the building licence was issued. The applicants, for reasons not explained by them in exhibit 2, chose not to follow the course outlined by the City.
The Tribunal acknowledges that the applicants now have difficulties in their relationship with the owner of No 3. However, as discussed above, the result of the noncompliance with the planning consent has a marked impact on the locality. The circumstances in which this breach of the planning consent took place are considered by the Tribunal not to provide sufficient basis for determining that the direction should not have been issued by the City.
The next consideration is the time taken to serve the notice on the applicants. There was no unreasonable delay by the City between the contravention of the planning consent, the respondent identifying the contravention and the serving of the notice. Time taken by the City to serve the notice is not an issue that has any bearing on this matter.
In respect of the expense and inconvenience to remedy the contravention of the planning consent, for the applicants this would appear to largely arise from what would now be required by them to achieve agreement from the neighbour to gain access to the southwestern wall of the development and would also include the cost of carrying out the work. The cost and inconvenience is seen by the Tribunal to be a consequence of the course the applicants undertook earlier when construction of the development was underway.
The Tribunal is aware that there might be situations where an applicant is subject to significant inconvenience and cost, for example, the partial or complete demolition of someone's home for a mere technical breach of a town planning scheme identified a considerable time after the breach has occurred. The breach in the matter now before the Tribunal is not of this type. Nor will the applicants be prevented from completing any work that might be remaining on the rest of the building. The Tribunal has concluded that any expense or inconvenience that might arise from having to complete the development, as required by the consent, does not outweigh the public interest in having the planning consent complied with and having remedied the adverse impact the noncompliance has on the local amenity.

Conclusion

Section 255 of the PD Act includes:
(1)A person to whom a direction is given under section 214 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision to give the direction.
(2)If the State Administrative Tribunal confirms or varies the direction, it may, by written notice served on the person to whom the direction was given, direct the owner to comply with the direction as so confirmed or varied, within a period of not less than 40 days after service of the notice, as is specified in the notice.
…
The Tribunal has reviewed the decision of the City to give the direction. The Tribunal has concluded that in the interests of orderly and proper planning, and because of the impact noncompliance with the planning consent will have on the amenity of the locality, the City's decision to serve the notice with the direction is to be affirmed. The Tribunal, from the evidence presented to it, has not found, in the circumstances in which the contravention of the planning consent took place, the timing of the service of the notice by the City or in the expense and inconvenience that might be involved in the remedying the contravention of the planning consent, reason to excuse the applicants from complying fully with the planning consent.
The Tribunal has noted that the direction issued by the City does not include a time within which the applicants are required to remedy the failure to comply with the planning consent. Mr Worth said that if the notice were set aside for this reason a fresh notice would be issued immediately and pursued.
Section 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are -
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
Consistent with the s 9 objective of the SAT Act to resolve the question, having regard to the substantial merits of the case, the Tribunal has decided to vary the direction by adding a period within which the applicants must alter the development in accordance with planning consent 5074. In the circumstances of this case, which will include the applicants negotiating with the owner of No 3 Florian Mews, the Tribunal considers that 90 days would be an appropriate time. The Tribunal considers that this should be sufficient time for any negotiations to be completed and in the interests of an orderly resolution to the matter expects that both the applicants and the owners of No 3 will proceed in a reasonable manner. The Tribunal would ask that the City assist the applicants and the owners of No 3 to enable satisfactory completion of the planning consent for the development on the site to be achieved.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the City of Mandurah to issue the Direction in the notice dated 21 December 2009 under s 214(3) of the Planning and Development Act 2005 (WA) is affirmed.
3.Paragraph 1 under the heading 'Direction' on the Notice is varied to read as follows:
1.Pursuant to s 214(3) of the Planning and Development Act 2005 (WA), you are hereby directed to alter the development to ensure the building is completed in accordance with Planning Consent 5074 dated 03 August 2007 within 90 days of the date of the decision of the State Administrative Tribunal in the application for review reference DR 488 of 2009.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER