Hawkins and City Of Joondalup
[2008] WASAT 64
•19 MARCH 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HAWKINS and CITY OF JOONDALUP [2008] WASAT 64
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 MARCH 2008
FILE NO/S: DR 321 of 2007
BETWEEN: STUART ANTHONY HAWKINS
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Proposal to use area in front of house for outdoor living area - Existing development constructed in previous area of undulating sand dunes - Subject land located on a rise - Existing development a single storey house built at the front of the parent lot - Small existing outdoor area at rear met current standards although subject to some overlooking - Proposal would require significant fill and construction of new retaining wall and secondary wall - Whether proposal consistent with existing streetscape - Whether bulk and scale of proposal consistent with regulatory standards - Whether requisite degree of openness at street level achieved by proposal - Whether any existing approvals or developments in precinct or neighbourhood showed pattern consistent with proposal - Tribunal found proposal would be inconsistent with standards under Residential Design Codes of Western Australia (2002) - Tribunal discussed the concept of the public interest underlying planning standards - Application for review dismissed
Legislation:
Planning and Development Act 2005 (WA)
City of Joondalup District Planning Scheme No 2, cl 4.2.3, cl 6.8.1(j)
Residential Design Codes of Western Australia (2002), cl 2.1.1, cl 3.2.5, cl 3.4.2, cl 3.6.1
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr S Sullivan (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: City of Joondalup
Case(s) referred to in decision(s):
Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79
CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992)
Church of England Collegiate School of St Peter v St Peters Town Council (No 2) (1990) 71 LGRA 309
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Hopkin v Shire of Serpentine-Jarrahdale (2006) 46 SR (WA) 84
Lynn and City of Joondalup [2006] WASAT 286
Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362
Tooth v City of Subiaco (2005) 41 SR (WA) 198
Walton and Town of Vincent [2005] WASAT 324
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review concerned an application by Mr Hawkins to build an outdoor living area in the front setback of his property in Sorrento in the City of Joondalup.
His property was built in an area of what were previously undulating sand dunes. His land had been subdivided, and the single storey house on his lot was built at the front of the parent lot, on a rise. He had a small outdoor living area at the rear which, while it met planning standards, was, in his view, subject to overlooking and otherwise inadequate for his needs.
His proposal was to replace the existing retaining wall and, in addition, he proposed to build a new wall upon that structure and to fill to the level of the existing house. He maintained this was the only practical use of his land consistent with his lifestyle and plans.
The City of Joondalup assessed the proposal against the Residential Design Codes of Western Australia (2002) and refused planning approval.
On review, the State Administrative Tribunal agreed with the City of Joondalup that the proposed development did not meet the applicable planning standards. In particular, it would be inconsistent with the existing streetscape and "[a] pedestrian on the immediately adjacent footpath would be faced with an imposing wall structure which would be inconsistent with the 'zone of transition between fully public and wholly private space' contemplated by the [Codes]". The Tribunal also discussed the authorities which emphasised the "public interest" advanced by planning law.
The application for review was dismissed and the decision under review affirmed.
Introduction
This review concerns proposals by Mr Hawkins (applicant) to fill in the space in the front setback (that is, the front of his existing single storey home in Sorrento, built upon or near to the crest of a former sand dune, and a much lower front retaining wall facing the street). A further wall would be built on top of a new retaining wall to contain the new fill. This structure would sit across the entire front of the applicant's land, generally leaving only the driveway visible at street level. However, the house would, given its prominence on the rise behind, continue to be a significant presence in the background (depending upon the precise point of view of the observer).
In effect, he would then have a large, new outdoor living area - at the level of his house - replacing or complementing the much smaller area of open space at the rear which, amongst other things, (he says) is overlooked by a neighbouring property.
The City of Joondalup (City or respondent) has denied the applicant planning approval in respect of this proposed development as it offends, it says, relevant development standards found in the Residential Design Codes of Western Australia (2002) (R Codes).
The Tribunal ordered that the matter be determined upon the documents.
The subject land
The street address of the subject land, co-owned by the applicant, is 14B Raleigh Road, Sorrento. The formal description of the land is Lot 200 on Deposited Plan 43270, being the whole of the land comprised in Certificate of Title, Volume 2582 Folio 1.
The land, which was subdivided in 2002, is currently improved and developed by a single storey residential house at the front of what was the parent lot (see below). The lot size of the subject land is 0.0468 hectares (that is, 468 square metres). There is a low density zoning of "Residential R20" applicable to the land under the City of Joondalup District Planning Scheme No 2 (DPS 2).
The applicant makes the following observations by way of background:
"The site is … located on part of a former sand dune … Approximately 340 [square metres] (~73%) of the [site] is located at an [sic] flat elevation of 13.5 [metres] AHD [Australian Height Datum]. The remaining approximately 128 [square metres] (~27%), located wholly in the front setback, has varying elevation from 13.5 [metres] AHD to 12.4 [metres] AHD (12.4 [metres] AHD at the north-east corner of the site).
The existing single storey dwelling is constructed of brick and asbestos, a roof constructed of tile, asbestos and steel, and gutters constructed of asbestos and steel.
The rear setback of the site is approximately 61 [square metres] in area, with average dimensions of 3.8 [metres] x 16 [metres]. The property at [neighbouring] 16B Raleigh Road is two storey [sic] and overlooks the rear setback from the upper level balcony."
The respondent's figures in respect of the rear open space area are set out in this extract from its submissions:
"The original lot at 14 Raleigh Road was previously subdivided, with 14B Raleigh Road having a rear Outdoor Living Area of 63.92 [square metres], and with an average dimension [of] 5 [metres] by 11 [metres]. This satisfies the minimum outdoor living area size requirements of the [R Codes]."
The applicant's proposal in detail
By an application for planning approval received on 31 January 2007 (as amended in July 2007) the applicant sought to build:
a)a solid masonry retaining wall on the front property boundary ranging in height from 1.2 metres to 1.8 metres (in order to take account of the slope of the site, from west to east), to replace the existing 0.7 metre retaining wall;
b)filling of the land behind the new retaining wall, allegedly to make the land behind the retaining wall level with the existing land height at the base of the existing dwelling; and
c)a second masonry wall (described as a "privacy wall") on top of the retaining wall being 0.8 metres high, with a further 0.4 metres of glass on top (in fact, glass between masonry pillars).
Landscaping treatments are proposed for both the front verge area and, it appears, internally, behind the wall.
If approved, the development would create a large outdoor living area in the front setback with the capacity for views over the new wall (such as they might be), in effect extending the use of the front of the house (albeit not under cover) with an extended "balcony effect".
As indicated above, the applicant estimates that the front setback area "available for development (excluding the driveway) is approximately 128 [square metres]" or approximately 27% of the total area. The applicant further estimates that the rear setback of the subject land (the location of the current outdoor living area) is approximately 61 square metres in area, "with average dimensions of 3.8 [metres] x [16 metres], equating to approximately 13% of the whole 468 [square metres] site".
Grounds of refusal
On 28 August 2007 that application was refused, under delegated authority, by reason of an alleged failure to comply with aspects of the R Codes. More specifically, the refusal related to the following requirements or elements of the R Codes (emphasis added):
"a)The proposed development does not meet the performance criteria of [cl] 3.6.1 (Excavation or Fill) of the [R Codes] as it does not reasonably or sufficiently retain the visual impression of the natural level of the site as seen from the street and adjoining properties.
b)The proposed development does not meet the performance criteria of [cl] 3.2.5 (Street Walls and Fences) of the [R Codes] as it restricts surveillance, and is detrimental to the existing streetscape and character by way of building bulk.
c)The proposed development does not meet the Objective of Design Element [3.2] of the [R Codes] due to its adverse impact on the streetscape by way of its location, size, and building bulk.
d)The proposed development does not meet the Objective of Design Element [3.6] of the [R Codes] due to the size, location and building bulk of the retaining wall and modifications to the topography of the site."
These reasons are supplemented by the following particulars appearing in the respondent's statement of issues, facts and contentions filed with the Tribunal:
1)The proposed development "will have an adverse impact on the streetscape by way of its location, size, building bulk, and the modifications to the topography of the site".
2)The proposal "restricts surveillance between the dwelling and the street (and vice versa)".
3)The need for solid screening at the front of the property "is not necessary as Raleigh Road is not an integrator arterial, district distributor or primary distributor" road.
4)The need for privacy screening of "an alternative outdoor living area at the front of the property" is not necessary "as the space provided at the rear of the lot is larger than that required by the [R Codes]".
5)The proposed development "does not reasonably or sufficiently retain the visual impression of the natural level of the site as seen from the street and adjoining properties".
Principal issues to be determined
It is common ground that the R Codes have application to the subject land and the proposed development and that here, where applicable, the R Codes' acceptable development ("deemed to comply") standards are not or cannot be met, and therefore (where applicable) the applicant must seek to persuade the respondent (or, on review, this Tribunal) that the performance criteria can be met or complied with.
On the question of whether there is, generally speaking, a discretion to relax or vary the application of the R Codes, see DPS 2, cl 4.2.3; but cf Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79, at 95. The Tribunal will proceed upon the basis that such discretion exists here.
However, it would also appear that there remains a "residual discretion to refuse a residential development application which conforms to the [R Codes], although conformity to a relevant [R Codes] provision is likely to be a significant consideration in the exercise of planning discretion." See the discussion in Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15, at [59].
Thus, the principal issues to be decided are whether the proposed retaining wall and front screen wall adequately or sufficiently meet the objectives of design element 3.2 (streetscape) and design element 3.6 (site works) and specifically the performance criteria of design element 3.2.5 (street walls and fences) and 3.6.1 (excavation and fill) of the R Codes.
The applicant would seek to agitate some related or further matters. These are: whether design element 3.4's criteria for open space are also met; the extent to which regard should be had to some of the "General Objectives for Residential Development" (see cl 2.1.1(iv) and cl 2.1.1(v) of the R Codes); and generally "the characteristics of the site, including the size, shape, topography, existing structures, building constraints, the purpose and functions of the proposed works, and whether the proposed works could be undertaken in the rear setback of the site". To the extent necessary, these further matters, some of which are marginal at best, will be addressed below.
It will be convenient to now address each issue raised in the review seriatim setting out the relevant provision of the R Codes, the parties' respective arguments, and, where possible, the conclusion of the Tribunal on each discrete point.
The Tribunal proposes to deal with these issues under the following headings:
1)The proposed front outdoor living area
2)Streetscape generally
3)Streetscape requirements: street walls and fences, and bulk and scale
4)The surrounding neighbourhood: precedent
5)Remaining issues between the parties.
The Tribunal should record that the applicant produced extremely detailed, comprehensively researched and voluminous submissions supporting his various arguments. Notwithstanding this level of research, with respect, some fundamental planning considerations are either ignored or not adequately addressed by the applicant. In other respects, the Tribunal does not agree with the applicant's approach to the issue of the purposes sought to be achieved by crucial elements of the R Codes. These will be discussed below.
The proposed front outdoor living area
It is convenient to first consider the underlying reason for the bringing of the application (that is, the purpose of the proposed development) expressed by reference to matters relating to private open space (outdoor living) requirements. As indicated, the applicant proposes the construction of a retaining wall and a privacy wall in the front setback of the site. The stated purpose of the proposed development "is to create an alternative outdoor living area in the front setback for:
1.use by adults, including [for] outdoor recreation and outdoor entertaining, with a degree of privacy.
2.use by children for play in a secure and private setting.
3.use by dogs for play in a secure area.
4.[the] future installation of a pool and providing a degree of privacy for use of that pool." (Emphasis added.)
The respondent's central argument is that (emphasis added):
"The [applicant's] existing outdoor living area at the rear of the property meets the acceptable development standards of the [R Codes] with the exception of it being accessed from a habitable room. The City does not consider the applicants [sic] justification for the need for [an] alternative outdoor living area [in the front setback] as a reasonable justification for the proposed development and associated performance criteria for variations to the acceptable development standards of element 2 (Streetscape) and element 6 (Site Works) of the [R Codes]."
The acceptable development provisions of design element 3.4.2 (outdoor living areas) of the R Codes provide as follows:
"A2.An Outdoor Living Area to be provided:
•in accordance with Table 1 [of the R Codes, which includes R20 minimum open space ratios];
•behind the street setback area;
•directly accessible from a habitable room of a dwelling;
•with a minimum length and width dimension of 4 [metres] …; and
•to have at least [two-thirds] of the required area without permanent roof cover."
The applicant does not dispute that the existing rear outdoor living area meets the acceptable minimum development provisions of the R Codes. However, he argues that an "alternative" outdoor living area is required in the front setback because, in effect, his lifestyle proposals are unable to be undertaken in the rear setback area "due to a number of site factors". These matters are included in this list supplied by the applicant (emphasis added):
"1.Area of the site - the proposed works maximise usable area of the site for an outdoor living area to enable the uses proposed.
2.Topography of site - the proposed works make the front setback level so that it can be actively used by the occupants.
3.Existing streetscape - the proposed works are consistent with the scale of other similar developments in the street.
4.Views of neighbours - the proposed works will not affect the views of neighbouring properties (in accordance with Design Element [3.7] on page 75 of the [R Codes]).
5.Shading and overlooking - the proposed works will not shade or overlook other properties (in accordance with Design Element [3.8] of the [R Codes] on page 77).
6.Cost - the proposed works are at a reasonable cost and within the financial capabilities of the owners.
7.Pets and barking - the proposed works securely contain the occupant's two dogs, and ensure that the visual outlook of the dogs is restricted to prevent barking at passersby.
8.Surveillance - the proposed works ensure that there is mutual surveillance between the proposed site and the street, balanced with the need for privacy.
9.Privacy - the proposed works ensure a degree of privacy for the occupants for the proposed uses of the area (to overcome the lack of privacy in the rear setback), balanced with the need for mutual surveillance.
10.Visual appearance - the proposed works are visually appealing by control of height [sic] and by landscaping treatments.
11.Compliance with other laws - the proposed works meet the minimum legal height of 1.2 [metres] for pool fencing (as a pool is proposed for installation in the future)."
In accordance with current planning law, the Tribunal has given little weight to suggested factors (either in this list or elsewhere discussed) that relate to the particular personal or transient circumstances of the current land owners (such as financial cost and particular pets); likewise for matters of hypothetical regulatory convenience in respect of other standards not directly related to the proposed land use or development.
The applicant further argues, in summary, that the currently available open space requirements meet the prescribed minimum amounts; that the proposed use must be seen in the context of there being no effective privacy in the rear area; with receipt of little winter sun; and in the presence of adjoining built structures (including walls) containing asbestos in the rear area. The applicant's photographs do suggest a comparatively small open space area at the rear of the subject land.
However, these arguments do not really address the City's essential point that there is currently available sufficient open space, arising from the original design (albeit that it may very well not be perfect in all respects) and, given that, the alleged substantial inroads (see findings below) required as regards this specific proposal in relation to other planning standards is therefore not warranted.
If the City is found to be correct, it is worth foreshadowing at this point that the applicant, in substantial part at least, will have proceeded upon, with respect, both a false premise and a false dichotomy.
The relevant premise appears to be that the demonstrated superiority and intrinsic worth of the proposed development, especially compared to what is currently available (which may be admitted for the sake of argument), and its potential R Codes compliance in some respects (which may also be admitted for the sake of argument), must necessarily trump other planning standards such that approval ought to follow.
However, it is axiomatic that modern planning laws contain many restrictions "which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)": Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:
"[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws."
CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992), emphasis added. So too, Jacobs J in Church of England Collegiate School of St Peter v St Peters Town Council (No 2) (1990) 71 LGRA 309 at 312 (emphasis added):
"Planning law is essentially for the protection of the public interest and restricts private rights only to the extent necessary to protect the public interest as expressed in the [planning framework]."
The openness in a streetscape (see immediately below), contemplated, if not required, by the R Codes, is one telling example of such "social" considerations.
The dichotomy presented by the applicant is to the effect that nothing other than what is proposed to be developed can be considered for the front setback area. This is expressed by the applicant as follows:
"The rear setback is not sufficient for the proposed use of the property … and therefore there is no suitable outdoor living area other than the front setback."
This approach similarly "privileges" the proposal by ignoring both what has been previously provided for on-site and the level of compromise that might be needed to achieve a modification of the current proposal; and is driven not, it appears in any case, by proper land use considerations in a regulated environment, but by, with respect, personal convenience.
Planning law does not allow a space to be developed simply because that event can be physically accommodated and the owner so wishes it, or that it might provide a benefit to a landowner, or that along the way it incidentally satisfies some planning standard or goal (taken in isolation from other such standards).
The Tribunal will return to these matters of principle below. First, it is necessary to consider the applicant's other arguments; we can commence by looking at issues to do with "streetscape".
Streetscape generally
The Tribunal was referred to design element 3.2 of the R Codes dealing with streetscape. The commentary on that design element emphasises, amongst other things, the maintenance or enhancement of the local or neighbourhood character, especially in established residential areas. It also includes the following passages (at page 48, emphasis added):
"Development within Street Setback Areas
…
As a generalisation, the street setback area should be open, enabling a clear view of the building from the street, and vice versa. There are both social and visual reasons for this.
From a social point of view, the street setback area forms a zone of transition between fully public and wholly private space, allowing for ease of communication and interaction between occupants and passersby or callers who may not be known to the occupants. The opportunity for casual and safe interaction enhances a sense of community.
At the same time, an open setback area provides for mutual surveillance between the street and building, enhancing security both for the building (and its occupants) and for people passing by.
From a visual point of view, an open setback area provides a more attractive setting for the building.
The street setback should also provide, depending on the location of essential services, adequate clearances from, and access to, essential services …
There will, of course, be exceptions, principally where the street is an arterial road carrying significant volumes of traffic."
These general remarks must be, of course, adapted for the peculiarities of the Raleigh Road landscape built as it was on undulating sand dunes, leading to some homes (particularly two storey structures), when built upon a significant rise, having a more imposing presence than would otherwise be the case, particularly having regard to the need for the construction of retaining walls. Nevertheless, the relevant planning standard is clear: "openness" in the front setback area is the starting point of assessment.
The applicant's arguments on this matter are as follows (emphasis added):
"The site is located within the suburb of Sorrento, with the site and surrounding properties developed between approximately 1970 and 1980. The properties closest to the ocean on Raleigh Road are located on the original sand dunes, and therefore the streetscape is characterised by a highly undulating topography at between 6[metres] AHD [Australian Height Datum] and 25[metres] AHD; equating to a total ground level elevation differential of 19[metres] within the street.
The site the subject of the application was built in 1973, is located in the front half of a subdivided property, and is located on a former sand dune. The house is height above [sic] the sloping road ranges from l.2[metres] to 1.8[metres] as a result of both the undulating dune topography and the cut and fill method used to construct the road. …
One of the streetscape characters of Raleigh Road is street front fencing, including significant retaining to overcome difficulties with the sand dune topography. Raleigh Road has numerous front fences/walls with retaining, ranging height from 1.0 [metres] to greater than 4.0 [metres]. Other parts of Sorrento on the sand dune topography also have large retaining walls to overcome the sand dune topography of the locality.
The proposed works comply with the Design Element [3.2] with regards to maintenance of neighbourhood character and an attractive streetscape and as [sic] the proposed works are:
1.consistent with other houses in Raleigh Road that have front fences and retaining to overcome the topography of the street
2.within the size and bulk of existing front walls in Raleigh Road.
In addition to the above, the residents of the adjoining properties and the properties opposite have stated in writing that the proposed works:
1.will improve the visual appearance of the site
2.will not negatively impact the streetscape, and
3.are supported by the resident."
The applicant produced signed statements to this effect of certain residents adjoining and opposite the proposed development.
The City's view was completely to the opposite, namely that "the proposed development is not consistent with the existing streetscape character of the area surrounding the property on Raleigh Road, Sorrento". Their submission was that:
"The existing streetscape character of Raleigh Road immediately surrounding the subject property is open in nature with dwellings clearly visible from the street. No significant retaining and fill, together with solid (non permeable) front walls exist in all the surrounding properties."
The City produced various photographs, showing an aerial and a landscape view of surrounding properties of Raleigh Road, in support of its argument.
The photographs produced by both parties have been carefully examined by the Tribunal and compared with the applicant's proposals. The respondent's two panorama views (north and south) of properties in the immediate vicinity of the subject land on Raleigh Road demonstrate a relatively open streetscape. (See further below, in the discussion of planning "precedents".)
In particular, none of these properties replicates the applicant's proposed wall, at this height, and across the entire front of the subject land (other than the driveway). A pedestrian on the immediately adjacent footpath would be faced with an imposing wall structure which would be inconsistent with the "zone of transition between fully public and wholly private space" contemplated by the R Codes. The glass panels and proposed vegetation, whilst of ameliorative effect, do not detract from this finding.
The views of affected neighbours, while of interest, are not finally determinative as regards planning decisions. This is especially so where, as here, crucial judgments need to be made about overarching standards promulgated in the public interest which are designed to reflect a broader community interest in achieving a particular goal.
Thus, the contentions of the City on this issue are made out. Accordingly, the applicant's case on this aspect of the review is rejected.
The Tribunal turns to consider the related matter of street walls and bulk.
Streetscape requirements: street walls and fences, and bulk and scale
The performance criteria at design element 3.2.5 of the R Codes are as follows:
"3.2.5 Street Walls and Fences
P5 Front walls and fences to promote surveillance and enhance streetscape, taking account of:
•the need to provide protection from noise and headlight glare where roads are designated as Primary or District Distributors or Integrator Arterials; or,
•the need to provide screening where there is no alternative outdoor living area to the front setback."
The respondent's case as to these matters is as follows:
"The combined height of the retaining wall and privacy screen does not promote or allow mutual surveillance between the street and the dwelling.
The proposed development, as viewed from the street, will vary from a height of 2.4 [metres] to 3 [metres] (from natural ground level). The [R Codes] assigns a height of 1.65 [metres] to the average eye height of an adult. Given the height of the non permeable part of the development is between 350 [millimetres] and 950 [millimetres] higher, mutual surveillance of activity between the street and the property will be restricted.
Similarly, users of the proposed outdoor living area within the front setback area will be unable to view activities occurring on the street. …
Raleigh Road is classed as an access road under the Main Roads WA Functional Road Hierarchy and therefore the need to provide protection from noise and headlight glare is not applicable. …
As [previously submitted], the City considers that [an] alternative private outdoor living area is not necessary or reasonably required within the front setback area of the subject property. …
The City considers that the impact of the proposed development with regard to building bulk and 'solidness' could be reduced by an alternative 'terraced' design, together with the reconsideration of land levels and use of open aspect fencing. Terracing the proposed retaining wall, allows the opportunity to reduce the visual massing of the retaining wall by creating a landscaped area. …
The proposal will create a situation where the front setback area will be difficult to view from the street, along with any landscaping of the front setback area. The City considers the proposal does not complement the existing streetscape or existing development of the front setback area of surrounding properties on Raleigh Road. Therefore the City considers that the proposal does not meet the objective of element [3.4] of the [R Codes, dealing with open space]."
The applicant argues as follows:
"[The] front privacy wall (on top of the retaining wall) is 1.2 [metres] in height from 13.5 [metres] AHD. The 1.2 [metres] height is the minimum height required by law for pool fencing … and consequently the [a]pplicant is unable to reduce the total height of the front privacy wall.
The front privacy wall comprises of 0.8 [metres] solid masonry material and 0.4 [metres] of visually permeable glass. The 0.8 [metres] solid portion will provide a degree of privacy for use of the area and will prevent a visual outlook of the owner's dogs to the street (to prevent them from barking at passersby). For context, 0.8 [metres] is approximately waist height for an average person (an average person is 1.65 [metres] height). Accordingly, with regards to surveillance:
1.persons outside of the site will be able to see persons standing within the site from approximately the waist upwards.
2.persons standing within the site will be able to fully see persons outside of the site.
The only limitation to surveillance applies when persons are sitting down, where persons outside of the site on the road or the pathway will not be able to see persons sitting within the site, and vice versa. This limitation is overcome by the two and three storey premises opposite the site that will retain surveillance behind the wall when they are on their second or third levels looking towards the site (noting that this view is further away that the views to the rear setback from 16B Raleigh Road, and therefore the privacy issue from these properties is less significant). This limitation is further overcome by the topography of Raleigh Road, with persons on the street at elevations at between 13.5 [metres] AHD and 25 [metres] AHD retaining a view into the front setback of the site.
This limitation remains consistent with [the] Performance Criteria of [design element] 3.2.5 … which allows for screening where there is no alternative outdoor living area to the front setback, and consistent with the Objective of Design Element 2 … which outlines a need to security for occupants and to ensure adequate privacy and open space for occupants. The design of the proposed works provides a suitable balance that meets the need for surveillance as well as meeting the need for privacy.
[The applicant then goes on to refer to the acceptable development criteria A5 of design element 3.2.5 ('Front walls and fences within the primary street setback area that are visually permeable 1.2 metres above natural ground level') and continues as follows:]
… The calculated deemed natural ground level ranges from l3.5 [metres] at the south to 13.28 [metres] at the north where the front privacy wall will be located. The front setback will be filled as part of the proposed works to 13.5 [metres] (0.22 [metres] of fill) in compliance with the maximum 0.5 [metres] fill above natural ground level under Design Element [3.7].
The front privacy wall will be solid from 13.5 [metres] AHD to 14.3 [metres] AHD, being a total of 0.8 [metres] above the amended natural ground level. Accordingly, the proposed works will comply with Acceptable Development Criteria A5 of [design element] 3.2.5 as the front privacy wall will be visually permeable above 0.8 [metres] height above amended natural ground level, within the 1.2 [metre] maximum. …
Given the deemed natural ground level of the site, the need for retaining to make the land usable, and the need for compliance with a minimum 1.2 [metres] height for pool fencing laws, building bulk can largely not be avoided without additional site treatments.
In terms of site treatments, the proposed works include landscaping of the front verge in accordance with the [r]espondent's document Fact Sheet: Verge Treatment Guidelines. Landscaping the front verge with vegetation of varying heights will visually 'break-up' the bulk of the wall and improve the visual appearance of the whole site. The [a]pplicant considers that the landscaping site treatment will resolve the [r]espondent's concern of building bulk.
In addition to the landscaping site treatment, the inclusion of 0.4 [metres] glass at the top of the privacy wall also contributes to breaking up building bulk.
[The applicant concluded by referring to both his 'Artist's Impression' contained with the plans for development approval, and the letters of support from various neighbours.]"
The respondent does not accept the applicant's contentions regarding natural ground level. It is unnecessary for the Tribunal to descend into the debate concerning the relationship, if any, between natural ground level, "amended" natural ground level, deemed natural ground level and AHD. Plainly, at street level, the respondent is correct to observe that the "combined height of the retaining wall and privacy screen [will] not promote or allow mutual surveillance between the street and the dwelling". Thus, on residual discretionary grounds such a finding, when taken with other findings in the review, would justify refusal of planning approval.
On the question of bulk and scale, it is a corollary to the finding as regards an existing open streetscape (see above) that the proposed development, if built, would lead to the subject land becoming out of character with its immediate precinct. The Tribunal has already found that, as regards the relatively open streetscape that characterises the land in its immediate vicinity, the glass panels and proposed vegetation, "whilst of ameliorative effect", would not provide a satisfactory answer to this concern.
Next we can turn to a related matter, namely the "precedent" cases favourable to the applicant said to be found as regards other homes and associated structures located in the neighbourhood. The point of this comparative exercise is to test the applicant's assertion, in effect, that the existing streetscape does not meet the standards discussed above. If so, it is submitted by the applicant, there is a further reason for the grant of planning approval.
The surrounding neighbourhood: precedent
The applicant alleges that:
"The existing streetscape of Raleigh Road includes numerous properties that have solid walls on the front setback boundary at heights exceeding 4 [metres]. [He produced various photographs to support this argument.] These walls overcome the sand dune topography by retaining and levelling of land for use by the dwellings.
[The applicant] understands from advice provided by the [respondent] that the wall at No 28 Raleigh Road do [sic] not currently have development approval. The [applicant] considers that this wall will remain relevant for the purposes of defining the streetscape until such time as the wall is removed.
[Similar claims are then made in respect of Sorrento and the City generally. Mr Hawkins concludes as follows:]
The precedents of planning approval within Raleigh Road, within the suburb of Sorrento, and within the City of Joondalup that have been identified in this [submission] must be given due regard in assessment of the proposed works.
Some of these walls were approved prior to the [R Codes] (i.e. prior to 2002), and some of the walls approved under the provisions of the [R Codes]. All walls contribute to the character of the streetscapes.
These precedents of planning approval should be considered in [an] assessment of the proposed works, particularly with regard to [the] assessment of streetscape and for equity of planning decisions."
In reply, the respondent says:
"The applicant's submission includes reference to properties on Raleigh Road which exhibit similar development to that proposed at 14B Raleigh Road.
17, 18, 22, and 24 Raleigh Road, Sorrento
The City is currently investigating possible non compliance issues with respect to planning and building approvals (or lack thereof) for these properties.
10 Raleigh Road, Sorrento
A front wall was approved in 2004 with a solid (non permeable) fence with a height ranging from 1.2 [metres] to 1.8 [metres] along the front boundary. The property is located directly opposite the 'T' junction of Raleigh Road and Drakes Walk and was approved due to headlight glare from vehicles approaching the intersection. All remaining portions of the fence within the front setback area have been approved to a height of 1.2 [metres].
16A Raleigh Road, Sorrento
The retaining wall of height 1.2 [metres] has been approved by the City. The retaining wall does not include any screening or fencing on top of it. The dwelling is still fully visible from the street.
28 Raleigh Road, Sorrento
The front wall is unauthorised and has been the subject of a recent SAT review. Approval has been given to modifications to the front wall to bring it into compliance with the performance criteria of the [R Codes]. The solid (non permeable) front wall was approved to a height of 1.3 [metres] above natural ground level.
10 Cowper Road, Sorrento
This development was approved in 2005. The retaining wall replaced a failing terraced sleeper retaining wall. The retaining wall is located on the secondary street and includes a terraced area for landscaping. …
The City does not consider the development the applicant has made reference to outside of Raleigh Road as relevant to the matter before the State Administrative Tribunal. These examples are not located on Raleigh Road, and can not be considered on [the] merits relating to circumstances relevant to the site and streetscape. …
The applicants [sic] submission states that the City is required to have due regard [under DPS 2] to any previous decision made by Council and this statement is agreed. It is also important to note that all development applications are assessed and determined on [their] individual merits and with regard to individual circumstances and site conditions.
The City considers the decision to refuse the subject application is consistent with recent decisions of similar development proposals throughout the City."
Both parties appear to have proceeded upon the basis that the subject properties cited or observed are of comparable residential zoning.
There is no evidence to suggest that the City's assertions in this regard are incorrect. Indeed, the Tribunal has already found that the respondent's assertions as regards the streetscape of Raleigh Road are made out. The Tribunal accepts the material put forward by the respondent. This finding, combined with the evidence above concerning properties in the immediate vicinity of Raleigh Road, necessarily leads to the conclusion that the evidence falls far short of suggesting a pattern of approvals or conduct (formal or otherwise) consistent with what the applicant seeks to suggest which, for the sake of consistency in public administration, the Tribunal might give some weight to (cf DPS 2, cl 6.8.1(j) dealing with previous decisions).
In any event, as the Tribunal said in Hopkin v Shire of Serpentine-Jarrahdale (2006) 46 SR (WA) 84 (at 91):
"[51]Even if examples could be provided of departure by the respondent Shire from its policies such cases would not justify a further departure. In Smart v Barossa Council [1999] SA ERDC 29 (cited with approval in this Tribunal in Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232, at [40] and Sweeney v Shire of Busselton [2006] WASAT 277 at [39]) the court said, at [9]:
'Trite as it may be to say so, "two wrongs do not make a right", or to put it another way, the Court cannot use existing bad examples of development as justification for proposals which are contrary to a Plan's provisions.'"
Further, the Tribunal has emphasised that it can be a proper regulatory response to "hold the line" against further inroads to a planning standard (if there be any): see Tooth v City of Subiaco (2005) 41 SR (WA) 198.
Remaining issues between the parties
The parties are also at odds as regards design element 3.7 (Building Height) and design element 3.6 (Site Works). On the latter, the respondent submits, not inconsistently with its other views, that:
"The visual impression of the natural level of the site as seen from the street and adjoining properties will not be maintained. The difference between the street level and the proposed works cannot be considered to be maintaining the visual impression of the natural level of the site."
It is also worth recording that the R Codes contain the following commentary, as noticed by the Tribunal in Lynn and City of Joondalup [2006] WASAT 286, at [33] (emphasis added):
"[33]As explained on p 71 of the [R Codes]:
'... filling above natural ground level, especially where, as is normal, it results in replacing a natural slope with level ground and retaining walls, is usually visually prominent.
…
In addition, any significant filling of land is likely to create overlooking and possibly exacerbate overshadowing. For these reasons, retaining walls should be treated as through they were building walls, and set back from property boundaries accordingly.'"
In addition, the applicant has submitted a lengthy justification as to why "alternative options" for the front setback area are uneconomic or otherwise unsatisfactory to him.
Given the findings made above on the principal matters already discussed, it is unnecessary to resolve these issues. Suffice it to say that even if the applicant succeeded on all or any of them, they could not relevantly affect the substance of the cumulative adverse findings made above regarding streetscape and related matters.
Conclusions and orders
The Tribunal has found for the respondent on the significant questions under review in these proceedings. The Tribunal has earlier, in the first part of these reasons above, set out the relevant general principles which thus have application to this review. Inexorably, subject to a brief discussion of one authority cited by the applicant, this must lead to the dismissal of the application for review.
The applicant cited Walton and Town of Vincent [2005] WASAT 324 (Walton) in support of his contentions. There, the Tribunal, as presently constituted, found - relevantly - that approval ought to be given for a development which approved certain structures (including a wall or fence) on the front boundary of a modern housing development in inner city Perth.
The Tribunal, having noted that the "exceptionalness of this [approval] perhaps needs to be emphasised", went on to say (emphasis added):
"[38][The] applicants have already significantly and sensibly compromised their original plans with the intent of achieving the main aim of the policy: to reflect as far as practicable an 'open' frontage.
[39]Next, they have a slightly unusual situation at this geographical point on Eton Street [North Perth], in terms of the significant fall across the frontage; the retaining wall (relatively high at one end); the outdoor living area in the front setback area (a factor itself recognised in both the policy and the [R Codes]); and the position of the residence as a whole in relation to such matters as the rise and fall of and the bend in the angle of Eton Road.
[40]Finally, there is the appearance and design of the modified proposal. Having inspected it, it does not strike the Tribunal as significantly out of character with either the existing residence, the immediately neighbouring properties or for that matter the existing streetscape. In particular, a passer-by is not met with a high, solid, uniform and bulky façade; rather the modified works achieve some openness, particularly so given the height of the fill level (that is, the courtyard area)/retaining wall standing immediately behind it, and the current or proposed vegetation."
It is immediately apparent from these emphasised passages that there are significant differences between the findings in this case and the findings in Walton. That case does not assist the applicant. If anything, it strengthens the respondent's case as to the importance of compliance with planning instruments which seek to minimise bulk and scale, and otherwise maintain openness in the streetscape.
For these reasons the application for review will be dismissed. The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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