GOLDENSTEP PTY LTD and TOWN OF VINCENT
[2007] WASAT 260
•12 OCTOBER 2007
GOLDENSTEP PTY LTD and TOWN OF VINCENT [2007] WASAT 260
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 260 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:251/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 12/10/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed in part Determination of Tribunal in DR 423 of 2006 affirmed but varied by deleting paragraphs (ii) and (iii) of Order 2 and by amending the date for compliance with the direction to 60 days from the date of the President's decision Determination of Tribunal in DR 439 of 2006 affirmed | ||
| B | |||
| PDF Version |
| Parties: | GOLDENSTEP PTY LTD TOWN OF VINCENT |
Catchwords: | Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Tribunal refused retrospective development approval for removal of front doors and windows and installation of wide commercial ground level openings in heritagelisted building Tribunal affirmed direction requiring reinstatement of front doors and windows and imposed further requirements in direction Whether Tribunal erred in law Whether development was commenced otherwise than in accordance with a condition of development approval Interpretation of condition Whether Tribunal misconstrued scope of its powers in imposing further requirements in direction Whether Tribunal took irrelevant considerations into account in determining direction review Whether applicant's failure to seek review of condition and knowledge of procedure for obtaining prior development approval are irrelevant considerations in direction review Whether Tribunal erred in failing to have regard to State Planning Policy, which commenced after evidence and submissions were filed but prior to decision, in determining development application review Whether Tribunal improperly fettered its discretion in development application review by focussing on heritage issue Whether Tribunal failed to give adequate reasons Whether decision to grant development approval was manifestly unreasonable |
Legislation: | Planning and Development Act 2005 (WA), s 214, s 214(1), s 214(3), s 241(1), s 244, s 252(1), s 255 State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1), s 60(2) Town of Vincent District Town Planning Scheme No 1, cl 38(5) |
Case References: | Goldenstep Pty Ltd and Town of Vincent [2007] WASAT 167 Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 |
Orders | 1. The stay of the direction that is the subject of the proceedings DR 423 of 2006 imposed on 6 August 2007 is discharged.,2. The application for review by the President in relation to the determination in proceedings DR 423 of 2006 is allowed in part.,3. The application for review by the President in relation to the determination in proceedings DR 439 of 2006 is dismissed.,4. The decision and orders made by the Tribunal on 26 June 2007 and varied on 16 July 2007 in proceedings DR 423 of 2006 are affirmed with the following variations:,(a) Paragraphs (ii) and (iii) of Order 2 are deleted; and,(b) Paragraph (iv) of Order 2 is amended so as to require compliance with the direction within 60 days of the date of this order.,5. The decision and orders made by the Tribunal on 26 June 2007 and varied on 16 July 2007 in proceedings DR 439 of 2006 are affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GOLDENSTEP PTY LTD and TOWN OF VINCENT [2007] WASAT 260 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 OCTOBER 2007 FILE NO/S : DR 251 of 2007 BETWEEN : GOLDENSTEP PTY LTD
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Tribunal refused retrospective development approval for removal of front doors and windows and installation of wide commercial ground level openings in heritagelisted building - Tribunal affirmed direction requiring reinstatement of front doors and windows and imposed further requirements in direction - Whether Tribunal erred in law - Whether development was commenced otherwise than in accordance with a condition of development approval - Interpretation of condition - Whether Tribunal misconstrued scope of its powers in imposing further requirements in direction - Whether Tribunal took irrelevant considerations into account in determining direction review - Whether
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applicant's failure to seek review of condition and knowledge of procedure for obtaining prior development approval are irrelevant considerations in direction review - Whether Tribunal erred in failing to have regard to State Planning Policy, which commenced after evidence and submissions were filed but prior to decision, in determining development application review - Whether Tribunal improperly fettered its discretion in development application review by focussing on heritage issue - Whether Tribunal failed to give adequate reasons - Whether decision to grant development approval was manifestly unreasonable
Legislation:
Planning and Development Act 2005 (WA), s 214, s 214(1), s 214(3), s 241(1), s 244, s 252(1), s 255
State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1), s 60(2)
Town of Vincent District Town Planning Scheme No 1, cl 38(5)
Result:
Application for review allowed in part
Determination of Tribunal in DR 423 of 2006 affirmed but varied by deleting paragraphs (ii) and (iii) of Order 2 and by amending the date for compliance with the direction to 60 days from the date of the President's decision
Determination of Tribunal in DR 439 of 2006 affirmed
Category: B
Representation:
Counsel:
Applicant : Mr MA Etherington
Respondent : Ms BK Callanan
Solicitors:
Applicant : Minter Ellison
Respondent : Williams Handcock
Case(s) referred to in decision(s):
Goldenstep Pty Ltd and Town of Vincent [2007] WASAT 167
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
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- </CRJ>
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Summary of Tribunal's decision
1 Goldenstep Pty Ltd, which was unsuccessful in seeking review by the Tribunal of the Town of Vincent's direction requiring it to reinstate the front doors and windows of a Municipal Heritage Inventory-listed building, and of the Town's refusal to grant retrospective development approval for these works, sought review of the Tribunal's determinations by the President upon a matter involving a question of law. In addition to affirming the direction requiring reinstatement of the front doors and windows, the Tribunal imposed further requirements in the direction.
2 The President determined that the Tribunal misconstrued its powers, and therefore erred in law, in imposing two of the three additional requirements in the direction. However, the President determined that the Tribunal did not err in law in its determination to affirm the direction.
3 The President determined that the Tribunal failed to have regard to a State planning policy that commenced after evidence and submissions were filed, but prior to the Tribunal's determination to refuse development approval, and therefore erred in law in this determination. However, because the Tribunal had considered the substance of the development control principles set out in the State planning policy, in terms of the Town's heritage policy and general principle, the President considered that the determination should be affirmed.
4 The application for review in relation to the direction matter was allowed in part and the application for review in relation to the development application matter was dismissed. Two of the three additional requirements imposed by the Tribunal in the direction were set aside. The determinations of the Tribunal were otherwise affirmed. Goldenstep Pty Ltd was given 60 days from the date of the President's decision to reinstate the front doors and windows of the building.
Application for review by President
5 Goldenstep Pty Ltd (Goldenstep) has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of determinations made by the Tribunal on 26 June 2007 in relation to the removal by Goldenstep of front doors and windows and the installation of wide commercial ground level openings in a building at 395397 William Street, Perth (site) - see Goldenstep Pty Ltd and Town of Vincent [2007] WASAT 167.
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6 Section 244 of the PD Act enables the President 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 Mr P de Villiers who is not a legally qualified member.
Background
7 The building on the site was originally constructed in the 1890s as two adjoining two storey residences. In January 2005, Goldenstep sought and obtained development approval for a change of use of the site from consulting rooms to shops, offices and warehouse, and associated alterations and additions. The approval was subject to conditions including the following:
"(vi) prior to the issue of Building Licence, revised plans shall be submitted and approved demonstrating that the existing front doors and windows are kept intact. The revised plans shall not result in any greater variation to the requirements of the Town's Policies."
8 After it obtained this development approval, Goldenstep removed the then existing ground level windows and doors, and created wide commercial ground level openings in the building. Goldenstep also replaced the timber windows on the upper floor with aluminium windows. At the time when these works were carried out, a building licence had not been sought or issued in relation to the building works which were the subject of the development approval.
9 As part of the Town's review of its Municipal Heritage Inventory (MHI), the site was identified by the Town's consultants for inclusion in the MHI as a Management Category B - Conservation Recommended place. The MHI review underwent a period of community consultation between 21 June 2006 and 31 August 2006. On 12 September 2006, the Town included the site in the MHI. The "Place Record Form", which records the entry of the site in the MHI, states:
"The duplex at No 395 William Street is a comparatively rare example of the Federation Georgian style and of a development model more typical of the gold rush periods in the eastern states, than of the Gold Boom period in Perth. Its unusualness contributes to the immediate streetscape character."
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10 On 6 October 2006, the Town gave Goldenstep a direction under s 214(3) of the PD Act requiring Goldenstep "to re-instate the front doors and windows that previously existed on the property". On 26 October 2006, Goldenstep sought review by the Tribunal under s 255 of the PD Act of the Town's decision to give it the direction.
11 On about 20 October 2006, Goldenstep applied to the Town for retrospective development approval under the Town of Vincent District Town Planning Scheme No 1 (TPS 1 or Scheme) for "alterations to front door and windows to approved shops, offices and warehouse" to, in effect, regularise the removal of the front doors and windows and the installation of the ground level openings at the site. On 10 November 2006, the Town refused development approval. On 8 December 2006, Goldenstep sought review under s 252(1) of the PD Act of the Town's decision to refuse development approval.
12 The two applications for review were determined together by Senior Sessional Member Mr P de Villiers entirely on the documents in accordance with s 60(2) of the SAT Act.
13 The Senior Sessional Member affirmed the direction that Goldenstep reinstate the front doors and windows that previously existed on the site and imposed the following additional requirements in the direction:
"That if in the opinion of the Town it is impractical to reinstate the original door and windows they shall be reconstructed from timber based on the photographic or documentary evidence available." (Direction 1(b))
"That should an additional door be required to provide direct and independent access to both tenancies from William Street the previous door, which has since been bricked up, along the southern side of the centre line of the building shall be reinstated based on credible evidence acceptable to the Town of its location and form." (Direction 1(c))
"That should further alterations be required the applicant shall undertake whatever professionally prepared investigations are necessary to establish an adequate basis on which the Town can assess proposals for adaptation." (Direction 1(d))
14 The Senior Sessional Member dismissed the application for review of the Town's decision to refuse retrospective development approval and affirmed that decision.
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Grounds for review by President
15 Goldenstep seeks review under s 244 of the PD Act of both the Tribunal's determination to affirm the direction and impose additional requirements and the Tribunal's determination to affirm the refusal of retrospective development approval. Goldenstep seeks review of the determination in relation to the direction on essentially four grounds and review of the determination in relation to the development application on essentially six grounds. I will identify and consider each of these grounds below.
Review of determination in relation to direction
16 Goldenstep's first ground for review is that the Tribunal erred in law in determining that there had been a breach of the development approval issued in January 2005. Goldenstep submits that condition (vi) of the development approval purports to establish a time frame with respect to the lodgement of amended plans. The condition does not prevent all or any part of the development approval from being implemented prior to the obtaining of a building licence. The Town conceded in the proceedings - and the Tribunal found at [43] - that a building licence was not required for the carrying out of the development to date and that a building licence would only be required for the construction of an approved steel and glass canopy along the front façade. Goldenstep submits that since the condition did not require the revised plans to be lodged prior to the undertaking of the development works in question, there has not been any breach of the condition, and the Tribunal consequently did not have power to affirm the direction.
17 Section 214(3) of the PD Act states that if a development has been undertaken "in contravention of a planning scheme or interim development order", the responsible authority may give a written direction to the owner or any other person who undertook the development -
"(a) to remove, pull down, take up, or alter the development; and
(b) to restore the land as nearly as practicable to its condition before the development started, to the satisfaction of the responsible authority."
18 Section 214(1)(a) of the PD Act states that, for the purposes of s 214(3), a development is undertaken in contravention of a planning scheme or an interim development order if the development:
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- "(i) is required to comply with the planning scheme or interim development order; and
(ii) iscommenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order". (emphasis added)
19 It is common ground that the development involving a change of use from consulting rooms to shops, offices and warehouse, and associated alterations and additions, approved by the Town in January 2005, is required to comply with TPS 1.
20 The Tribunal correctly determined that, by removing the ground level windows and doors and installing wide commercial ground level openings, the approved development had been commenced otherwise than in accordance with condition (vi) of the development approval.
21 The intention of condition (vi) that is conveyed by its words is that the approved development must retain intact the then existing front doors and windows. Contrary to Goldenstep's submission, the condition does not simply purport to establish a time frame with respect to the lodgement of amended plans. Although the condition does not prevent the approved development from being commenced prior to the issue of a building licence, if certain works do not require a building licence, it requires that the development must be carried out in such a way that the then existing front doors and windows are kept intact. The Senior Sessional Member correctly understood the meaning and effect of the condition as he said at [44] that:
"Condition (vi) simply sought to ensure that in any alterations to the building, the existing doors and windows on the William Street façade were to be retained."
22 It follows that the Tribunal did not err in law in determining that there had been a breach of the development approval. Goldenstep's first review ground fails.
23 Goldenstep's second ground for review is that the Tribunal misconstrued the scope of its powers in imposing the three further requirements set out at [13] above. Goldenstep submits that the Town
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- does not have power under s 214 of the PD Act to impose the additional requirements, because they do not seek the rectification of a contravention of the condition of development approval. Goldenstep notes that, under s 29(1) of the SAT Act, the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making a reviewable decision. It therefore submits that the Tribunal also does not have power to impose the additional requirements and erred in law in purporting to do so.
24 As noted earlier, s 214(3) authorises a responsible authority to give a direction "to remove, pull down, take up, or alter the development" and "to restore the land as nearly as practicable to its condition immediately before the development started", where development has been undertaken, relevantly, in contravention of a condition of development approval. Although the responsible authority has a discretion as to whether to give a direction, and if so, in relation to its terms, I accept Goldenstep's submission that the terms of the direction must involve the rectification of the relevant contravention. In this case, I consider that Direction 1(b) does involve the rectification of the contravention of the development approval, because it requires the reconstruction from timber based on photographic or documentary evidence of the front doors and windows if the original front doors and windows cannot practically be reinstated. However, Directions 1(c) and 1(d) do not involve rectification of the relevant contravention of the development approval. The Tribunal did not have power to impose these additional requirements in the direction, and erred in law in doing so. These additional requirements should be deleted from the direction.
25 Goldenstep's third ground for review is that the Tribunal erred in law by taking into account irrelevant considerations in its determination to affirm the direction, namely -
"(a) the applicant did not seek a review of condition (vi) of the Development Approval or a reconsideration of the Development Approval by the respondent; and
(b) the applicant knew of the procedures for seeking and obtaining the necessary planning approval but commenced the development in contravention of the development approval."
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26 Goldenstep submits that the Tribunal "incorrectly implies into the actions of the applicant some level of wilful wrongness which does not reasonably arise from the material before the Tribunal" and that "in the absence of wilful wrongness, no public interest justification exists for the Tribunal to rely on the actions of the applicant in the present circumstances and [to have] determined that the [direction] is appropriate in the circumstances".
27 At [46], the Senior Sessional Member observed that condition (vi) "was not challenged either by seeking reconsideration from the Town, or with the Tribunal by way of a review of the decision". At [48], the Senior Sessional Member said:
"The applicant knew of the procedures for seeking and obtaining the necessary planning approval under TPS 1 before commencing development and took steps to obtain the planning approval issued on 5 January 2006. Development then commenced, which was in contravention of the approval issued."
28 I do not agree that the Senior Sessional Member implied into Goldenstep's actions "some level of wilful wrongness". The observations quoted were factual and correct. As Senior Member Mr D Parry observed in Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301, at [62], the factors which guide or inform the exercise of discretion under s 214 of the PD Act cannot be exhaustively stated. However, at [63], Senior Member Parry identified five important matters for consideration in the exercise of discretion which include "the factual circumstances in which the contravention of the scheme took place".
29 The fact that Goldenstep did not seek review of the condition that it contravened and that it was aware of the process of seeking prior development approval formed part of the factual circumstances in which the contravention took place and were not irrelevant considerations. However, it is apparent that Senior Sessional Member de Villiers did not elevate these matters to determinative considerations. It is apparent from the Senior Sessional Member's decision when read overall, and in particular from [52], that the direction was affirmed principally because the alterations to the William Street façade of the building "clearly breached both the spirit and the letter of the approval" and "the intention of the Town [in imposing condition (vi)] to facilitate alterations to the building while retaining elements of the William Street façade was not unreasonable in terms of the building, which in spite of substantial
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- adaptation over time, was regarded by the Council as retaining cultural heritage significance" ([52], third and second bullet points). These matters were both relevant and material.
30 It follows that the Tribunal did not err by taking into account irrelevant considerations. Goldenstep's third review ground fails.
31 Goldenstep's fourth ground for review is that the Tribunal "fettered its discretion by effectively concluding that where the respondent has exercised its discretion and determined that a written notice should be issued then the Tribunal should not seek to revisit that finding of fact". Goldenstep submits that the Tribunal did not independently consider the factors relevant to whether in the circumstances it is an appropriate exercise of discretion to give the direction.
32 However, it is apparent from [52] of the Senior Sessional Member's reasons for decision that he considered the "merits" of the direction, that is whether, in the exercise of discretion, the Tribunal should affirm that direction or not. The Senior Sessional Member found that the giving of the direction was "warranted". He did not fetter his discretion as alleged. Rather, he determined that the direction should be affirmed in the exercise of discretion, having particular regard to the breach of the condition and that the imposition of the condition was not unreasonable. Goldenstep's fourth review ground fails.
33 It follows that the Tribunal did not err in law in relation to the determination to affirm the direction given by the Town. The Tribunal did err in law in its determination to impose Direction 1(c) and Direction 1(d). Direction 1(c) and Direction 1(d) should be deleted from the direction.
Review of determination in relation to development application
34 Goldenstep's first ground for review is that the Tribunal erred in failing to have regard to State Planning Policy No 3.5 - Historic Heritage Conservation (SPP 3.5). SPP 3.5 commenced on 29 May 2007, one to two months after the parties' evidence and submissions were filed and approximately one month before the Tribunal's determination. Neither party brought SPP 3.5 to the attention of the Tribunal prior to the determination. It is apparent that the Senior Sessional Member did not have regard to this State Policy.
35 Under s 241(1) of the PD Act, the Tribunal was required to have "due regard to relevant planning considerations including … any State
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- planning policy which may affect the subject matter of the application". The Tribunal was also required to have regard to any State planning policy, including SPP 3.5, by cl 38(5)(d) of TPS 1. The parties should have alerted the Tribunal to SPP 3.5 prior to the determination. Nevertheless, as SPP 3.5 had commenced prior to the determination, the Tribunal erred in law in failing to have regard to it as required by s 241(1) of the PD Act and cl 38(5)(d) of TPS 1.
36 However, I consider that the determination should be affirmed notwithstanding the Tribunal's error. Goldenstep identified three parts of SPP 3.5 which it says bear on the proper determination of the review in relation to the development application. First, SPP 3.5 says that it is "important to distinguish 'historic heritage significance' and 'urban or neighbourhood character'" and that "not all areas of urban neighbourhood character have a level of historic heritage significance which warrants protection". However, this provision is concerned with the designation of heritage areas and the difference between heritage areas and urban character areas. It is not concerned with a place listed on the MHI. The second part speaks in general terms about the establishment of a heritage list. The third part contains development control principles which were in substance the subject of the Tribunal's consideration in terms of the Town's Policy No 3.6.1 - Heritage Management - Development Guidelines (Policy 3.6.1) and general principle at paragraphs [25][38] of its reasons.
37 Goldenstep's second ground for review is that the Tribunal erred in law by failing to take into account the nonheritage considerations under cl 38(5) of TPS 1 and improperly fettered its discretion by having regard only to heritage matters in determining whether development approval should be granted.
38 However, it was open to the Tribunal to focus its assessment on the key issue in dispute, namely the cultural heritage value of the place and the impact of the development on that value. Clause A2.5 of Policy 3.61 provides the following guidance on acceptable development in regard to the treatment of doors and openings:
"New openings in the principal façade(s) visible from the street are avoided, or if openings are visible, they are proportionally related to those of the heritage place, unless concealed from view from the principal street frontage."
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39 It was open to the Tribunal to regard the non-compliance of the development with this guidance as a material consideration. It was open to the Tribunal in the circumstances of the case to find that the building on the site has cultural heritage significance, that the development has a detrimental impact on that significance, and that the application therefore warrants refusal in the exercise of discretion. Goldenstep's second review ground fails.
40 Goldenstep's third ground for review is that the Tribunal erred in equating the existence of cultural heritage significance with the inclusion of the site in the MHI and with "the unusualness of the building" and the contribution that "an unusual building" makes to streetscape character. Goldenstep submits that there was no probative evidence before the Tribunal upon which the Tribunal could find that the place had cultural heritage significance. It also submits that, rather than determining whether as a matter of fact the site has cultural heritage significance, the Tribunal merely accepted that it has cultural significance by virtue of its listing in the MHI.
41 The Tribunal did not err in law in any of these respects. The Town presented evidence from Ms Susannah Kendall, its heritage planning officer, that the site "has been recognised for its aesthetic and rarity cultural heritage values". Ms Kendall referred to the Place Record Form (see [9] above) which says that "[i]ts unusualness contributes to the immediate streetscape character". It was open to Ms Kendall and the Tribunal to regard the listing of the site in the MHI and the terms of the Place Record Form as evidencing cultural heritage value. While the inclusion of a property on a heritage list and the terms of a Place Record Form are not, in themselves, determinative of cultural heritage significance, they can be relevant and material considerations in a planning assessment. In this case, the Tribunal did not equate the existence of cultural heritage significance with the inclusion of the site in the MHI, but did properly, on the evidence before it, regard its inclusion and the terms of the Place Record Form as relevant and material considerations. Furthermore, the Tribunal did not equate the existence of cultural heritage significance with the unusualness of the building, but did properly regard its unusualness as an element of its cultural heritage significance. Although Ms Kendall has considerably less experience than Mr Ronald Bodycoat, a heritage architect who gave evidence on behalf of Goldenstep, it was open to the Tribunal to prefer Ms Kendall's expert opinion over Mr Bodycoat's. It was open to the Tribunal to accept the evidence of Ms Kendall that "[t]he alterations and additions are unsympathetic and have a detrimental impact on the building's
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- presentation to the street", having regard to cl A2.5 of Policy 3.6.1, and therefore to refuse development approval. Goldenstep's third review ground fails.
42 Goldenstep's fourth ground for review is that the Tribunal failed to give legally adequate reasons for its finding that the building has cultural heritage significance. Although the Senior Sessional Member's reasoning in relation to cultural heritage significance could have been more clearly and expansively expressed, I do not consider that his reasons were legally inadequate. In particular, it is apparent from the second bullet point at [38] that he regarded the cultural heritage significance of the building as lying in its "unusualness". It was open to the Senior Sessional Member to find that the building had cultural heritage significance on this account having regard to Ms Kendall's evidence about "rarity cultural heritage value" and the terms of the Place Record Form. Goldenstep's fourth review ground fails.
43 Goldenstep's fifth ground for review is that the determination was manifestly unreasonable in that it had no regard to the steel and glass canopy structure that formed part of the development approval and the relative contribution that the restored doors and windows would have in a visual context once the canopy structure is constructed. Goldenstep submits that the visual dominance of the approved canopy structure would be such that the Tribunal's determination is unreasonable, irrational and illogical. However, it is apparent from [42] of the Senior Sessional Member's reasons that he was aware of the approved canopy structure. Nevertheless, he considered that the application for retrospective development approval should be refused because of its adverse impact on cultural heritage value. As Buss JA recently observed in Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [253], manifest unreasonableness requires "something overwhelming". As the Tribunal was aware of the approved canopy structure, I do not consider that the determination was manifestly unreasonable. Goldenstep's fifth review ground fails.
44 Goldenstep's sixth ground for review is that it was not open to the Tribunal to find that the unusualness of the building "contributes to the immediate streetscape character" as there was no probative evidence to support this finding. However, the Town's heritage planning officer gave evidence, which the Tribunal clearly accepted, that the building has "rarity cultural heritage value" and that "the alterations and additions are unsympathetic and have a detrimental impact on the building's presentation to the street". As noted earlier, the Place Record Form also
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- said that the building's "unusualness contributes to the immediate streetscape character". Finally, the Tribunal had the benefit of photographs of the building and its streetscape context provided by Mr Bodycoat. It was, therefore, open to the Tribunal to make the finding. Goldenstep's sixth review ground fails.
45 If follows that the Tribunal erred in law in only one of the six respects contended by Goldenstep. The Tribunal failed to have regard to SPP 3.5. However, for reasons set out earlier, the determination should nevertheless be affirmed.
Conclusion
46 Goldenstep has established one of the four errors of law it has alleged in relation to the determination of the direction review and one of the six errors of law it has alleged in relation to the development application review.
47 The error of law in relation to the direction review does not affect the Tribunal's determination to affirm the direction given by the Town to Goldenstep which requires Goldenstep to reinstate the front doors and windows that previously existed on the site. The Tribunal did not have power to impose the additional requirements in Direction 1(c) and Direction 1(d). Direction 1(c) and Direction 1(d) should be deleted.
48 I consider that the Tribunal's determination in relation to the development application should be affirmed notwithstanding the Tribunal's failure to have regard to SPP 3.5. Although the Tribunal did not have regard in terms to the development control principles set out in SPP 3.5, it is apparent from the reasons for decision that the substance of those principles were considered by the Tribunal in its determination.
Orders
49 I make the following orders:
1. The stay of the direction that is the subject of the proceedings DR 423 of 2006 imposed on 6 August 2007 is discharged.
2. The application for review by the President in relation to the determination in proceedings DR 423 of 2006 is allowed in part.
3. The application for review by the President in relation to the determination in proceedings DR 439 of 2006 is dismissed.
4. The decision and orders made by the Tribunal on 26 June 2007 and varied on 16 July 2007 in proceedings DR 423 of 2006 are affirmed with the following variations:
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- (a) Paragraphs (ii) and (iii) of Order 2 are deleted; and
(b) Paragraph (iv) of Order 2 is amended so as to require compliance with the direction within 60 days of the date of this order.
- 5. The decision and orders made by the Tribunal on 26 June 2007 and varied on 16 July 2007 in proceedings DR 439 of 2006 are affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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