HAMZAH and CITY OF FREMANTLE - [2006] WASAT 360

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HAMZAH and CITY OF FREMANTLE [2006] WASAT 360

MEMBER: MR J JORDAN (MEMBER)

HEARD: DELIVERED ON THE DOCUMENTS

DELIVERED : 12 DECEMBER 2006

FILE NO/S: DR 70 of 2006
DR 71 of 2006

BETWEEN: JOAN CHRISTINE HAMZAH
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Development application - Refusal of application for erection of boundary fence of limestone and brushwood on top of retaining wall - Retaining wall about 400 millimetres high set back 200 millimetres from boundary previously granted planning and building approval - Adjoining house sited on boundary - Window to room in adjoining house in wall on boundary - Limestone section of fence constructed in front of window - Reduction in light - Reduced access to window - Brushwood fence close to house wall on boundary - Submission from neighbour - Notice issued directing removal of fence and removal of retaining wall built too close to house wall on boundary – Fence found to have acceptable impact - Applicant to maintain ground level in setback gap - Conditions imposed - Parties to pay own costs

Legislation:

City of Fremantle Town Planning Scheme No 3, cl 14, cl 14(1), cl 15, cl 16, cl 77, cl 88
Planning and Development Act 2005 (WA), s 214(2), s 242
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.3.2, cl 3.3.2P2, Element 3
State Administrative Tribunal Act 2004 (WA), s 29(3), s 51(1)(b), s 60(2), s 87(1), s 87(2), s 87(3), s 87(4)
Town Planning and Development Act 1928 (WA), s 10, 10(3)

Result:

DR 70 of 2006 - Notice requiring removal of brush and limestone fence deleted. Notice requiring retaining wall to be set back 200 millimetres confirmed.
DR 71 of 2006 - Application for retrospective development approval for brush and limestone fence granted conditional approval.

Category: B

Representation:

Counsel:

Applicant: Mr A Stewart (Acting as Agent)
Respondent: Mr SJ Bain (Acting as Agent)

Solicitors:

Applicant: Greg Rowe & Associates (Planning Consultants)
Respondent: SJB Planning and Urban Design (Planning Consultants)

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

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

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant lodged two applications for review with the Tribunal. One application was for review of the refusal by the City of Fremantle of an application for retrospective development approval of a brush and limestone side boundary fence on top of an existing retaining wall adjacent to the parapet wall of the neighbouring house, which is located on the boundary. The other application was for review of directions issued by the City of Fremantle to pull down and remove the brush and limestone fence and remove sections of the retaining wall built closer than the 200 millimetre setback from the side boundary.
The City of Fremantle refused the development and issued the notice because it considered the proposed fence and relocated retaining wall would have an adverse impact on the amenity of the neighbouring house built on the boundary, particularly as there was a window to a habitable room in the side wall of the neighbouring house. The neighbour made submissions to the Tribunal on what she considered to be the impact of the development.
The Tribunal considered the matter and after weighing the submissions and visiting the site, reached the conclusion that there was a case in favour of allowing the fence but not allowing any reduction in the setback of the retaining wall.

Introduction

Joan Christine Hamzah (applicant) lodged applications for review of two decisions made by the City of Fremantle (respondent) in respect of development at Lot 104 South Terrace, South Fremantle (the subject land). The two decisions of the respondent were:
1)DR 70 of 2006 to issue directions that the applicant, within 60 days, pull down and remove a 22.5 metre long limestone and brush fence along the southern boundary of the subject land and those parts of the retaining wall on the southern boundary which have been extended into the 200 millimetre setback from the parapet wall of the neighbouring house; and
2)DR 71 of 2006 to refuse an application for retrospective development approval for the limestone and brush fence adjacent to the southern side boundary and for relaxation of the setback of sections of the previously approved retaining wall.
The Tribunal ordered that these two applications for review were to remain separate proceedings but be heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.

Subject land and the adjoining property

The subject land has an area of 259 square metres and a frontage of 7.56 metres to South Terrace at the western end. Vehicle access is from Hickory Street at the eastern boundary. The subject land and Lot 103 adjoining to the north were created by the subdivision of former Lot 17 in October 2000.
Adjoining the subject land to the south is Lot 18 on which is house No 448 South Terrace (house No 448). House No 448 is single storey and at the end of a terrace of houses identified in the respondent's Municipal Inventory as "being of cultural heritage significance for its contribution to streetscape, local area, and Fremantle as a collective whole". Within this category, house No 448 has been assigned "Level 3", which is a place considered to have streetscape value only.
The northern wall of house No 448 is built on the common boundary with the subject land. Along this common boundary, starting at the South Terrace frontage, is 3.4 metres of open picket fence about 900 millimetres high. Next is the side wall of house No 448. This comprises 6.27 metres of uninterrupted brick wall and then a 950 millimetre wide double hung sash window to a habitable room, with a sill height about 1050 millimetres above the limestone footing of the house, followed by a further 1.4 metre length of brick wall. Attached at the rear of the brick wall, on the boundary, is a 5.3 metre long corrugated iron side wall of a skillion addition. From the rear of house No 448 to the rear boundary is a 3.75 metre long brick fence and then a timberlap fence, both about 1.8 metres high. Finally, at the rear of the side boundary is the side parapet wall of the garage located on the subject land.
On the subject land is a two storey house (No 446B) at the same front setback as house No 448. The side wall of No 446B has a side setback of 2.0 metres for the first 8.5 metres and then a setback of 1.0 metre for the remaining 7.0 metres to the rear of the house. The main entry door of No 446B is at the side of the house set back 2.0 metres from the boundary at the point where the side setback changes to 1.0 metre. To note is that the western edge of the entry door is offset by a small margin from the eastern edge of the window in the wall of house No 448.

Background

In October 1998, the respondent granted planning approval, under the respondent's Town Planning Scheme No 3 (TPS 3) for the erection of two, two storey grouped dwellings, to be No 446A and No 446B on what was then Lot 17. A condition of the approval was that the new dwellings be set back a minimum of 1.0 metre from the southern boundary. In January 2001, the respondent approved amendments to the partially completed development on the subject land. Condition 3 imposed on the amendments required that:
"Details of the retaining wall on the southern elevation are to be submitted to the satisfaction of the Director, Urban Management and set back 1 metre or whatever is attainable prior to the issue of an amended building licence."
The respondent's Manager of Development Assessments cleared Condition 3 in September 2001, approving a setback of 200 millimetres for the retaining wall. The retaining wall was about 400 millimetres high and extended from near the front boundary to just beyond the rear of house No 448.
The applicant bought the subject land in July 2003 after No 446B had been built. In May 2005, the applicant lodged an application for a building licence for work including a fence adjacent to the southern boundary on top of the retaining wall. The fence included the limestone sections and brush panels included in the later, August 2005, application for planning approval as described below. It also included a 1.2 metre high limestone wall (fence) from the front boundary to level with the western end of the parapet wall of house No 448. This 1.2 metre high wall was not built and was not included in the later development application.
A file note made by the respondent's Compliance Officer on 29 July 2005 stated that, on 7 July 2005, the respondent's Building Surveyor advised the applicant that planning approval was not required, as the proposed walls did not exceed 1.8 metres in height and also that it "was not common practice to require a building licence for such work".
The respondent, nevertheless, approved and issued the building licence on 21 July 2005. Condition 6 required that "height of wall must not exceed 1.8m above existing ground levels".
In a letter dated the next day, 22 July 2005, the respondent advised the applicant of the content of its Policy D.B.H.2 Front Fences and Side/Rear Fences (Policy DBH2), which stated that erection of fences or dividing walls to a maximum height of 1.8 metres above natural ground level would be permitted, but those of greater height would require planning approval and the views of the neighbour would be considered. The letter also said:
"In this instance it has been identified that the dividing wall for which you have received a building licence has been erected to a height of 1.8 metres as measured from the top of the existing retaining wall which varies in height from 0 500mm. Consequently the dividing wall exceeds 1.8 metres from the natural ground level and so planning approval is therefore required."
The applicant then, in August 2005, applied for retrospective development approval, as provided for in cl 14(1) of TPS 3, for the following on the subject land:
(i)relocation of a 4.5 metre long section of the existing retaining wall at the western end to a setback distance of 50 millimetres from the southern boundary and establishment of a garden bed adjacent to the retaining wall;
(ii)construction of a 1.8 metre high limestone shelter for the power meter box existing when the subject land was purchased, set back 200 millimetres from the adjacent parapet wall, 5 metres from the street;
(iii)construction of a 1.8 metre high, 2.060 metre wide limestone feature wall opposite the window in the side wall of adjoining house No 448;
(iv)relocation of a 1.0 metre long portion of the existing retaining wall, situated immediately east of the proposed 1.8 metre high feature limestone wall to a setback distance of 50 millimetres from the southern boundary to accommodate the brush fence above;
(v)construction of a 1.8 metre high 10 metre long limestone wall in front of the timberlap fence at the eastern end of the southern boundary; and
(vi)erection of a brush fence to a height of 1.75 metres between the proposed limestone walls and from the meter box shelter to level with the front of house No 448.
In October 2005, the respondent refused the development application. The only planning reason given for the refusal was:
"The wall adversely affects the amenity of 448 South Terrace in regards to ventilation and solar access."
As provided for under cl 88 of TPS 3, the applicant, in October 2005, applied to the respondent for reconsideration of the decision. The application included amendments to the August 2005 plans which returned the sections of the retaining wall intruding into the setback to a setback of 200 millimetres from the southern boundary, and reduced to about 1.65 metres the height of the feature wall opposite the window in the side wall of house No 448.
On 14 February 2006, the respondent restated its refusal of the proposed development. Also on 14 February 2006, the respondent, pursuant to s 10(3) of the Town Planning and Development Act 1928 (WA) (TPD Act) (now Planning and Development Act 2005 (WA) (PD Act) s 214(2)), issued a notice directing the applicant to, within 60 days, pull down and remove from the subject land:
"(a)limestone and brush fence situated on the southern boundary of the property, which is set back approximately 3.5m from the front boundary of the property and extends for approximately 22.5m in an easterly direction … ;
(b)that part of the retaining wall on the southern boundary of the property which has been extended into the previously approved 200mm setback from the parapet wall of the neighbouring property at 448 South Terrace."
The applicant applied to have the Tribunal:
1)in relation to DR 70 of 2006, dismiss the notice issued pursuant to s 10 of the TPD Act; and
2)in relation to DR 71 of 2006, overturn the decision of the respondent and approve the development as constructed on site, as set out in the application of August 2005.

Planning controls

Clause 14 and cl 15 of the respondent's TPS 3 state:
"14.The consent of the Council is required for any development within the Scheme Area …
15.The consent of the Council is required for the filling or clearing of any land and the erection, construction of, alteration of any 'illumination' sign, bunting or fencing or for the carrying out of any painting on the external surface of any building or structure within the area defined on Map One and for the increase in the intensity of the use of land."
The subject land is within the area defined on Map One of TPS 3.
Clause 16 states that:
"In determining any application the Council shall have regard to the purpose for which land is zoned or reserved under the Scheme, to the orderly and proper planning of the locality, to the preservation of the amenities of the locality and to the matters in clause 77 and shall have due regard to any planning policy statement adopted by the Council relating to specific areas, use classes or building types and may refuse its consent, or may grant its consent subject to such conditions, if any, it may deem fit."
Clause 77, referred to in cl 16, states, relevantly:
"In determining an application of consent for development, the Council shall have regard to and may attach conditions relating to the following matters:
…
(h)the height, position, form and materials of fences and walls;
…
(t)any other matters."
The respondent has no local laws for dividing fences. It does, however, have Policy DBH2. The only reference to side fences is at cl 2, which states:
"Side and Rear Fences
Except for fencing occurring forward of the building line of the dwelling/building, as previously mentioned above, Council will permit the construction of fences and walls to side boundaries to a maximum height of 1.8 metres as measured from natural ground level. Walls or fences of greater height will be dealt with by Council as requiring planning approval and approval from the adjoining neighbour will generally be required unless it can be clearly demonstrated that the amenity of the neighbour will not be impacted by the increasing wall height."

Comment on the planning controls

Need for a development application

Mr Alan Stewart, a planning consultant who made submissions on behalf of the applicant, said the applicant had commenced erecting the fence on the basis of the respondent's advice that planning consent was not required for side boundary walls and fences which did not exceed 1.8 metres in height, as set out in Policy DBH2. Mr Stewart also said that "[d]espite Policy DBH2, TPS3 does not exempt any development from the requirement to obtain planning consent".
The Tribunal noted the respondent's practice, but must state that an applicant cannot be excused a statutory obligation to obtain planning approval by way of a clause in a policy. Clause 15 of TPS 3 requires an application for development approval for a fence. In the event, an application for development approval was made, that application was determined, and an application for review of the decision was lodged with the Tribunal.

Measuring the height of the fence

Mr Stewart said the respondent had confused the terms "natural" and "existing" ground levels. Policy DBH2 permitted side boundary fences to 1.8 metres above natural ground level and neither Policy DBH2 nor TPS 3 contained a definition of natural ground level. Mr Stewart referred to s 5 of the respondent's Policy D.B.H3 Development Levels – Extent of Cut and Fill (Policy DBH3) which set out that retaining walls approved as part of subdivision works or a previous dwelling were to be considered as natural features, and to cl 2.2 of the Residential Design Codes of Western Australia (2002) (Codes) which defined natural ground level as levels established at subdivision or approved previously by the Council.
Mr Stewart said the development proposal was the brush and limestone fence. Consistent with the definitions, the site level established by the retaining wall approved by the Council pre-existed the development and so was the natural ground level from which the height of the fence should be measured.
Mr Simon Bain, a planning consultant who made submissions on behalf of the respondent, disagreed, arguing that the 0.4 metre raised level of the subject land was not natural ground level. Mr Bain said that the raised levels were not siteworks approved prior to the development of the existing dwelling on the subject land. The fence was essentially a continuation of development associated with approval of that dwelling.
The Tribunal noted it is arguable that the fence was a discrete application separate from the development of the house and retaining wall, and so, at least on the house side of the retaining wall, natural ground level was at the level of the fill. The Tribunal also noted, however, that the ground level of the subject land within the side boundary setback remains at the predevelopment level. The Tribunal is of the view that, for the purpose of determining the impact the fence will have on the neighbour, it is appropriate to consider the height to the top of the fence as being measured from the ground level in the side setback adjacent to the boundary.

Use of the Residential Design Codes of Western Australia (2002)

Both Mr Stewart and Mr Bain, in their submissions on the fence, referred to the acceptable development provisions and performance criteria for buildings on boundaries, found at cl 3.3.2 of the Codes. This was essentially on the basis that the fence would become part of a residential development, and the Codes provided the standards against which residential development should be assessed.
The Tribunal is of the view that invoking the provisions of the Codes which set out dimensions for parapet walls of buildings and setbacks for buildings, outbuildings and other structures, is not useful or appropriate for assessing the impact of the fence. The definition "Building" at cl 2.2 of the Codes specifically excludes boundary fences. The additional development applied for is a brush and limestone boundary fence to be built on top of the existing retaining wall. Even though the top of the fence might be higher than 1.8 metres above natural ground level and be set back about 200 millimetres, it remains a boundary fence. If it were completely of masonry, it might be termed a boundary wall or dividing wall, with different structural requirements, but nevertheless, it would still be a boundary fence. To label a fence as some other structure to invoke controls applicable to that other form of development is considered to be straining the purposes and intent of the planning controls beyond that necessary for orderly and proper planning.

Retaining walls are within the definition of building, but the retaining wall in question was built earlier at a height and length previously granted approval. The reduced setback to sections of the retaining wall was an issue in the current applications, and this has been considered in the light of the performance criteria of cl 3.3.2 of the Codes.

Considerations in the determination of the matter

The Tribunal formed the view that the applicant's request that the fence be allowed was to be considered in the light of cl 16 of TPS 3. That is, having regard to the orderly and proper planning of the locality, to the preservation of the amenity of the locality, to the matters in cl 77 and to adopted planning policies of the respondent. From cl 77, this was the height, position, form and materials of the fence, and any matters that were relevant. From adopted Policy DBH2, this included an assessment of the impact of the fence on the amenity of the neighbour, and in the making of that assessment, the comments of the affected neighbour.
The changes to the setback to the retaining wall were considered in light of the performance criteria of the Codes at cl 3.3.2 P2, which required to be addressed whether the amenity of the development would be enhanced and whether there would be no significant adverse effect on the neighbour.

Respondent's position

Mr Bain, on behalf of the respondent, said that the 1.75 metre high brush fence on top of the 0.4 metre high retaining wall made a total height of 2.15 metres. The proposal, therefore, exceeded the Policy DBH2 standard of 1.8 metres by 0.35 metre and there was no agreement between the adjoining owners for an over-height fence.
The limestone feature wall in front of the window had side sections 1.62 metres high and a central portion 1.785 metres high on top of the retaining wall. This gave total heights of 2.02 metres and 2.185 metres respectively. This, in his opinion, had an impact on the amenity of house No 448 because of overshadowing, loss of light and loss of aspect for the only north facing window.
Mr Bain noted that the two storey dwelling on the subject land already prevented direct sunlight entering the window on the boundary, but submitted that the proposed limestone wall would further block northern light entering the premises. Photographs provided by the respondent taken from inside the room with the north facing window showed the feature wall and side wall of No 446B and these were said to illustrate the impact on the amenity of house No 448.
Mr Bain also raised, as an additional concern, that the proposed development would not provide for maintenance to the wall of house No 448. Even if the brush fence were designed to be removable, there would still be no procedure for the owner of house No 448 to be permitted to remove and replace the fence.

Submission by neighbour

Pursuant to s 242 of the PD Act, the neighbour, Ms Bobby Wilson, of house No 448, was invited to make a submission. Ms Wilson restated the submissions she had made when the application for approval were before the respondent. The essence of her submission was that the setback of the retaining wall should not be less than that previously approved to ensure that drainage and ventilation was not affected, as this would affect the integrity of the structure of her house. Any fencing should be removed, as unobstructed access was required to undertake repairs and maintenance of her house walls on the boundary.
Ms Wilson pointed out that the window in the parapet wall was the only window to that room. In her opinion, the feature limestone wall would result in a loss of more daylight already darkened by the two storey house on the subject land. In respect of privacy, she said that this was not of concern as she was able to use curtains and blinds. In her submission to the respondent on this matter in August 2005, Ms Wilson said "there is always some translucent screening on the window". As to the neighbour's privacy, she said the window did not overlook habitable spaces on the subject land.
Ms Wilson commented that a 50 millimetre gap to the brush fence was sufficient adjacent to the iron wall, but the fence was, in fact, against that wall. At the rear of her property, she said the height of the brush fence above the masonry fence added to overshadowing of her courtyard.
In Ms Wilson's view, removal of the brush fence by cutting wires was unworkable because of the length and weight of the fencing panels and the presence of adjacent garden beds. She considered that reinstallation would be difficult and that it would not be possible to enforce the removal of those sections of fence. It was her submission that all of the fencing, including the feature wall, should be removed and the retaining wall set back at the approved distance.

Applicant's position

In respect of the retaining wall, it was Mr Stewart's submission that 3.5 metres of the section near the front of the subject land would not have any effect on ventilation, drainage or access because it did not abut the parapet wall of house No 448. He submitted that this section of retaining wall would have no impact on the amenity of the neighbour and requested that approval be granted for the 50 millimetre setback.
As to the setback of the 1.0 metre long portion of the retaining wall immediately east of the habitable room window, Mr Stewart said the 50 millimetre setback was preferred to accommodate the brush fence, but the 200 millimetre setback would be reinstated if required.
Mr Stewart said the purpose of the 1.75 metre high brush fence was to screen the neighbour's parapet wall which had the three different materials of face brick, painted corrugated iron and cement render. The applicant was seeking a consistent finish on her side of the boundary. The panels were attached to support posts with wire fixings and could be removed when access to the parapet wall was required. They had been installed 200 millimetres from the parapet wall to allow ventilation. It was Mr Stewart's submission that the brush fence would not detract from the heritage (streetscape) value or have any impact on the amenity of house No 448 and would improve the amenity of the subject land. He asked that the brush fence be approved as constructed.
The limestone shelter around the power meter box was described by Mr Stewart as constructed of materials consistent with the house on the subject land. He said this structure could not have any impact on the amenity of the neighbour or the streetscape.
Mr Stewart said the 1.8 metre high, 10 metre long limestone wall toward the rear of the southern boundary was constructed to provide a uniform finish at the side of the applicant's backyard. The wall was of similar height to the timberlap fence, so there would not be any different or additional impact on the amenity of the adjoining property.
Regarding the feature wall opposite the window of the habitable room of house No 448, it was Mr Stewart's submission that this was constructed of limestone to match the existing dwelling and designed to allow for a reasonable level of amenity for the room. The central portion of the wall would be 165 millimetres higher than the midpoint of the window and the side sections would be at the same height as the midpoint. A wall of these heights, and a distance of 0.5 metre between the wall and the glass would, in his opinion, allow light and ventilation to the neighbour's room.
Attached to Mr Stewart's submission were uncontested shadow studies which demonstrated that when direct sunlight was prevented from entering the neighbour's window, it was because of the two storey house on the subject land, not the feature wall. He submitted that even with the feature wall in place, the habitable room would continue to enjoy reasonable levels of ambient light and, at certain times of the year, oblique direct sunlight.
In relation to privacy, Mr Stewart referred to the respondent's Policy D.C.10 Visual Privacy for Dwellings (Policy DC10) which, although it related to overlooking from new developments, included the relevant principle that encouraged designs that prevented views into neighbouring private open space and into neighbouring windows. The feature wall would prevent views from the subject land into the habitable room and from the neighbour's room to the entry of the applicant's house and of visitors at the door. In his submission, the feature wall prevented direct loss of privacy for the applicant and the neighbour, and maintained a reasonable level of amenity for the occupants of house No 448.
Mr Stewart said the fence should be approved, as all parts of it had been constructed as shown on the plans approved with the building licence issued by the respondent and, in his submission, would not contravene TPS 3, Policy DBH2 or the Codes.

Comment

A view was conducted on the morning of 14 November 2006 in the company of Mr Stewart, Mr Bain and Ms Wilson. The development the subject of the two applications for review was viewed from the subject land and from No 448, including from inside the habitable room with the window in the parapet wall, and from the front and rear yards.
The retaining wall was approved by the respondent in 2003 at a setback not less than 200 millimetres from the southern boundary of the subject land. The land in the gap between the parapet wall of house No 448 and the retaining wall on the subject land is part of the subject land. Any fill or debris in this gap would be retained on one side by the retaining wall and on the other side by the wall of the house on No 448. Ms Wilson made submissions that the presence of additional fill in this gap had affected drainage and caused dampness in her house, although this assertion was not proved. There does, however, appear to be some logic to this assertion where fill or debris would be above where a dampcourse and drainage holes would normally be, most likely at the level of the limestone footing. A photograph provided by Ms Wilson, taken before development occurred on the subject land, shows ground level at just below the top of the limestone footing of the parapet wall.
The Tribunal has formed the view that it is not reasonable that the parapet wall of house No 448 be required to retain any fill or debris collecting in the gap on the subject land, even if deposited inadvertently, as that fill would likely have adverse consequences for house No 448. The Tribunal has decided, therefore, that the applicant should be required to ensure there be no fill or debris accumulating on the subject land against the wall of house No 448 above the footing or at a level approved by the respondent, to maintain the integrity of the parapet wall.
The applicant has asked that reduced setback to sections of the retaining wall be approved. The Tribunal has formed the view that the reduced setback would make that much more difficult the task of gaining access to and keeping clear of fill and debris the gap between the retaining wall and the adjacent parapet wall of house No 448 and reduce air flow and drainage. Keeping the gap adjacent to the neighbour's picket fence clear of fill and debris would also be that much more difficult. It has been concluded that the 200 millimetre gap between the retaining wall and the southern boundary should be maintained, as to reduce the setback would result in no particular enhancement of the subject land but, more significantly, it would have a potential adverse effect on the neighbour, in conflict with the performance criteria of cl 3.3.2 P2 of the Codes.
On the issue of privacy, the window in the parapet wall provides for viewing into the habitable room of house No 448, and from that room to the main access route to and main entry door of the applicant's house. Ms Wilson submitted that privacy was not a concern to her, as she can use curtains and blinds. A submission by her to the respondent on 3 August 2005 said, however, that it was "the occupants of House No 448 who suffer the lack of privacy as people going to the front door of No 446 look into the living room. Consequently, there is always some translucent screening on the window".
The Tribunal considers privacy of each of the adjoining properties must be addressed, but steps taken to achieve an adequate level of privacy need not be greater than necessary. From the measurements provided by Ms Wilson, the timber dividing the sash window into the top and bottom panes is 1790 millimetres from the floor of the habitable room. This is about the height of a standard fence. On the applicant's side, the height above the retaining wall to the same level is about 1650 millimetres, just above eye level of the average person. The feature wall applied for reduced to this height would be sufficient to prevent direct overlooking in both directions. As submitted by the applicant, the neighbour has no inherent right to others maintaining her aspect.
Natural light to the habitable room, in the form of ambient and reflected light from structures on the subject land, was adequate at the time of the view. The amount of light might be different at different times of the day or year, and would certainly be different were curtains employed to prevent a view into the room. In considering light of this type, the concern is not the area of window covered, but the area of window remaining. The Tribunal has formed the opinion that, while the feature wall would cover the lower pane of the window, the upper pane would provide adequate light, serving the same purpose as a highlight window required of a modern dwelling in circumstances of overlooking.
A concern raised was the distance between the feature wall and the window. As pointed out by Mr Stewart, the distance from the window pane to the wall is about 450 millimetres. This is less than the modern standard of 1.0 metre setback between a house wall and a fence, but in the peculiar circumstances of this case, it is considered sufficient to provide some sense of a gap and to provide access to the outside of the window should it be required.
After weighing the purpose it would serve and the impact it would have, the Tribunal formed the view that the limestone feature wall to 1650 millimetres above the retaining wall could be supported.
The brush sections of the fence, as stated above, are 1.75 metres above the retaining wall and in panels attached to steel posts. The use of brush as the fence material is a matter of taste, but the fence would achieve the applicant's objective of masking a significant proportion of the different materials of which the side wall of the house No 448 is comprised. Ms Wilson objected to the brush fence being about 100 millimetres higher than her masonry rear side wall. The Tribunal is not convinced that the impact of the brush fence is such as to warrant it being removed, either from this section or overall.
Ms Wilson was concerned that because of the size of the brush fence panels, they would be difficult to disconnect, shift and replace, as offered by the applicant as a means to gain access to her parapet wall. The Tribunal, from the site visit, is inclined to Ms Wilson's opinion of the brush panels. If the fence is to be allowed and the neighbour makes arrangements to gain access to her wall, this should not be made more difficult because of the difficulty of unfastening and manoeuvring the panels. The Tribunal is of the view that brush panels of the fence should be at not less than a setback of 200 millimetres, to allow air circulation, in lengths of not more than 2.0 metres, and affixed in such a way that they can be detached and reattached.
On the matter of access to the external side of the parapet wall, the applicant said, and the respondent did not disagree, that there was no registered easement benefiting Lot 18 for the purpose of access to the parapet wall. Ms Wilson made no claims to any form of right of access over the subject land for access to the wall of house No 448. Ms Wilson's comments indicated she believed there was a need to obtain permission from the owner of the subject land to gain access to the external surface of the parapet wall. In these circumstances, gaining access to the parapet wall would remain a private matter between the neighbours.
The rear masonry section of the fence at the side of the backyard of the subject land is only marginally, if at all, higher than the neighbour's timberlap fence and so is considered acceptable. The limestone meter box cover too, is considered acceptable, as it presents a more preferable appearance than the meter box, is the same height as the remainder of the fence and has dimensions that would allow access behind.

Conclusion

In considering the order issued under s 10 of the TPD Act, the Tribunal has looked at, in this particular instance, the impact of the contravention of TPS 3 on the affected locality, the factual circumstances in which the contravention took place and the ease with which the contravention could be remedied: Drake and City of South Perth & Anor [2005] WASAT 271 [90 97].
It would not be difficult to remedy the breach of TPS 3 by removing the fence. The applicant, however, erected the fence on advice of, and with a building licence issued by, the respondent. The respondent did not initially require an application for development approval, and the need for this only became a concern when the fence was almost complete. From the examination made of this matter, the Tribunal has formed the view that the fence does not have such an impact on the locality and the neighbour that would warrant its removal, and in the light of the circumstances in which it was erected, has decided that there is a case for setting aside that part of the direction concerning the fence.
The Tribunal also has before it for review the respondent's refusal of the application for retrospective development approval for the fence. As set out above, after weighing the impact of the various sections that make up the fence, the Tribunal has decided that the fence can be granted conditional development approval.
The proceedings are also concerned with the reduced setback to a section of the retaining wall. As indicated above, the Tribunal has not been convinced that the reduction in the setback to the retaining wall can be supported. The direction in the notice served by the respondent to remove the retaining wall built within the 200 millimetre setback should remain, and that part of the application for development approval be refused.
The Tribunal made comments above on the side wall of the house on No 448 not being used to retain fill or debris above the ground level of the subject land in the setback gap. Section 29(3) of the SAT Act provides that the Tribunal, in determining the matter, may make any order it considers appropriate. In this particular matter, it is considered appropriate that there be imposed on the development a condition that requires the applicant to maintain the ground level of the subject land, between the retaining wall and the southern boundary, at a level not higher than 40 millimetres below the top of the limestone footings of the parapet wall of the house on Lot 18, or at any alternative ground level approved by the respondent.

Costs

The starting point for costs is s 87(1) of the SAT Act, which provides that parties bear their own costs in a proceeding of the Tribunal.
The applicant referred to s 87(2) and s 87(3), which allow the Tribunal to award cost, and s 87(4), which provides that the Tribunal can have regard to whether the decisionmaker, when determining a matter, "genuinely attempted to make a decision on its merits".
Mr Stewart said that the fence was erected consistent with the initial advice of the respondent and the conditions of the building licence. In his view, the fence, and particularly when the amended plan was submitted for reconsideration, met the performance standards of the Codes and the respondent's policy and scheme. In summary, Mr Stewart argued that the absence of evidence to support the refusal, the dismissal of the amendments suggested in the reconsideration submission and the absence of any request for additional information to address the suggested impact the development might have on the adjoining property, indicate that the respondent did not consider the matter on its merits.

The respondent's reason for refusal reveals little. However, the submissions of Ms Wilson that were before the respondent and the submissions of Mr Bain revealed that there was sufficient for the respondent to form the conclusion it did. That the applicant was of a different view, and the Tribunal, after considering the submissions and evidence, has decided that the fence can be allowed, is not considered conclusive that the respondent failed to consider the matter on its merits.
The Tribunal, therefore, has concluded that there is no case to depart from the principle that each party bear its own costs.

Orders

In the matter of DR 71 of 2006:
1.The application for review be allowed in part.
2.The development concerning the brush and limestone fence and retaining wall shown on drawing no 02:73:05, dated 16 August 2005, be allowed in part, as follows:
(i)The proposed relocation of sections of the retaining wall to closer to the southern boundary of the subject land be refused and no part of the retaining wall to be closer than 200 millimetres from the common boundary with Lot 18.
(ii)The ground level of the subject land in the gap between the retaining wall on the subject land and the wall of the house on the southern boundary be maintained at a level not higher than 40 millimetres below the level of the top of the limestone footing of the brick parapet wall of the house on Lot 18, or at an alternative level approved by the City of Fremantle.
(iii)The applicant to remove any fill or debris that has accumulated or accumulates on the subject land in the gap between the retaining wall and the wall of the house on the southern boundary and to maintain the approved ground level of the subject land in the gap as determined in condition (ii).
(iv)The limestone and brush fence being altered to comply with the following:
(a)The brush fence to be in panels not greater than 2.0 metres in length, to facilitate ease of removal should this be required.
(b)The metal posts supporting the brush fence to be not closer than 200 millimetres from the boundary and the brush fence panels are to be attached so that they are not closer than 200 millimetres from the house parapet wall on the boundary.
(c)The brush fence sections be attached to the steel posts by fittings that can be removed and replaced while maintaining the integrity of the fence sections to assist in the removal of the fence sections should this be required.
(d)The limestone feature wall in front of the window in the parapet wall on the boundary to be reduced in height so that it is not more than 1650 millimetres above the top of the retaining wall.

3.There be no order as to costs.
4.Ms Bobby Wilson be provided with a copy of these orders.

In the matter of DR 70 of 2006:
1.The application for review of the direction issued under s 10(3) of the Town Planning and Development Act 1928 (WA) by the respondent on 13 February 2006 be allowed in part by:
(a)paragraph 1 of the first schedule of the notice, which is concerned with the limestone and brush fence, being deleted;
(b)paragraph 2 of the first schedule being confirmed;
(c)the notice being amended so that the direction in the third schedule is to be complied with within 60 days of the date of these orders.

3.There be no order as to costs.
4.Ms Bobby Wilson be provided with a copy of these orders.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER