Hill & Act Planning & Land Authority
[2008] ACTAAT 31
•25 November 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:HILL & ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 31 (25 NOVEMBER 2008)
AT08/45
Catchwords: Land and planning – refusal to issue order for demolition of tennis court fence – jurisdiction – whether fence previously approved.
Building (Design and Siting) Ordinance 1964 (C’th)
Land (Planning and Environment) Act 1991, s 254
Legislation Act 2001, s 84
Planning and Development Act 2007Eames and ACT Planning & Land Authority [2003] ACTAAT 43 (24 September 2003)
Tribunal:Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date:25 November 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/45
LAND AND PLANNING DIVISION )
RE: PETER JOACHIM HILL
& JANET MARY HILL
ApplicantsAND: ACT PLANNING & LAND
AUTHORITY
RespondentAND: CARMELA CARRABS
Party Joined
DECISION
Tribunal : Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
Date : 25 November 2008
Decision :
The decision under review is affirmed. The application for an Order is dismissed.
………………………….
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/45
LAND AND PLANNING DIVISION )
RE: PETER JOACHIM HILL
& JANET MARY HILL
ApplicantsAND: ACT PLANNING & LAND
AUTHORITY
RespondentAND: CARMELA CARRABS
Party Joined
REASONS FOR DECISION
25 November 2008 Ms P O’Neil, Senior Member
Dr E McKenzie, Senior Member
Mr J Ashe, Member
This is the first of two applications arising from a dispute between neighbours about a tennis court. Mr Peter and Mrs Janet Hill (“the applicants”) live at 103 Hawkesbury Crescent Farrar. They sought an Order under section 254 of the Land (Planning and Environment) Act 1991 (“the Land Act”) for the demolition of a tennis court fence at the home of Ms Carmela Carrabs (“the party joined”), of 105 Hawkesbury Crescent Farrar (“the subject land”). The Order was refused by the ACT Planning and Land Authority (“the respondent”) and the applicants have asked the Tribunal to review that decision, which is a reviewable decision under the Act. The two matters were heard together on 11-12 November 2008.
Background
2. A tennis court was approved on the subject land in 1973 and has been in existence for many years. The tennis court lights, the subject of the second application (AT08/55), were erected some time after the court. This is one of a number of tennis courts established on the very large residential blocks located on the upper side of Hawkesbury Crescent adjoining the Farrer Ridge Nature Park.
3. The tennis court with lights had been built when the applicants bought their house in 1987. A complaint was made about it in 1994, but no further complaints were made until 2007, after the party joined purchased the subject block. Subsequently the applicants complained to the authorities about noisy, late night activities associated with the flood-lit tennis court.
4. In May and June 2007 the respondent received a complaint from the applicants alleging that the tennis court and tennis court lights were unapproved. An inspection was carried out and files researched in an attempt to ascertain whether the structures were unapproved. The respondent concluded that the fence had been approved as an integral part of the tennis court at the time the subject land was originally developed, but that the lights subsequently erected did not have planning approval. The respondent then advised the party joined to seek retrospective approval of the lights under the Act, which she did in July 2007. That application sought “approval of existing tennis court lights”. The applicants objected to approval, but in October 2007 the respondent gave the lights conditional approval.
5. The respondent asserted that the approval had the effect of approving the existing fence, despite also contending that the fence had already been approved more than 30 years earlier. As will be seen, whether the fence as well as the lights was approved by the decision of October 2007 is not a matter we need to determine. In January 2008 the party joined provided an annotated drawing intended to satisfy the conditions imposed by the decision of October 2007, which showed among other things 91% shade cloth on the fence nearest the applicants’ home, aimed at ensuring that AS4282 was met as required by the conditions of approval. The drawing was stamped “approval granted” and signed in April 2008. The applicants were advised of the decision but also told that they had no right to seek review of the decision.
The Order
6. Meanwhile, on 20 February 2008 after having seen the January 2008 drawing, the applicants sought an Order for the demolition of the fence which is the subject of this review. The applicants subsequently stated that they did not necessarily want the fence demolished, but reduced in size. Moreover they were particularly concerned that the erection of a large area of heavy shade cloth along the tennis court fence nearest to them was proposed. They said the shade cloth would have a significant detrimental impact on their amenity. The respondent refused the application on 16 April 2008. The applicants subsequently sought review of that decision to refuse to make the Order sought.
7. The respondent had earlier contended that the Tribunal lacked jurisdiction to make the Order sought, since the transitional provisions of the Planning and Development Act 2007 did not include continued operation for the purposes of an application of an Order made under Part 6, Division 6.3 of the Land Act. However, in submissions, Dr Jarvis for the respondent pointed out that any difficulty so caused may be overcome by virtue of section 84 of the Legislation Act 2001, which has the effect of maintaining existing rights. Relying on that section, we consider that we have jurisdiction to review the decision.
8. The issue of an Order is discretionary and would not necessarily flow from a finding that the fence is an unapproved structure. Were we to find the fence unapproved, it would be necessary for us to consider, among other things, that the fence has been in existence for decades and there is very limited evidence of difficulties associated with the fence itself. Although the applicants pointed out the difference in height of the tennis court fence from a boundary fence it appears to us that the complaints of the applicants are not so much directed to the characteristics of the fence but more to the use of the tennis court lights, instances of noisy behavior at night and the possible use of the fence to support heavy shade cloth. But as will be seen, it is not necessary to consider the making of the Order sought by the applicants.
The evidence
9. Written evidence was received from all parties. Oral evidence was heard from Mrs Hill, Ms Carrabs and Mr Benjamin Green, an officer of the respondent. Mr Wagdy Hanna, an architect was has practised in Canberra since 1974 gave expert evidence. In doing so Mr Hanna had regard to the Building Manual first issued by the Commonwealth Department of the Interior in 1967.
10. Documents before the Tribunal show that in December 1972 Plan No: 29980 was approved under the Building (Design and Siting) Ordinance 1964 (C’th) for the construction of a house, garage and tennis court on the subject land. The tennis court is shown as court markings within a line to indicate the court boundary, through which an entrance is marked. Mr Hanna opined that the court boundary line notionally indicated a fence through which there was to be an entrance to the court, probably by a gate. In 1973 amendments (Plan No: 29980/A) approved, among other things, the inclusion of a power point for future tennis court lighting and retaining walls which are illustrated with close-set parallel lines emerging from them. Mr Hanna’s evidence is that in drafting terms such lines mean a post of considerable height and his opinion is that they illustrate fence poles for the tennis court fence. Aerial photographs over the subsequent five years show the clearing which contains the court. A Certificate of Occupancy and Use was issued in 1975 covering the works in those two plans. We accept the expert evidence of Mr Hanna, consistent with the interpretation of officers of the respondent, that the tennis court and fence were thereby approved in accordance with the approval practices and building standards of the time.
11. Our view that the tennis court was covered by the 1975 Certificate is reinforced by an examination of further documents. Between 1975 and 2003 plans were approved for a swimming pool and other alterations. In 2003 plans were approved for the construction of a lift. Plan No.035914/A shows three classes of structure: (1) those being approved in 2003; (2) the tennis court lights, which carry a stamp reading “NOT INCLUDED IN THIS APPROVAL”; and (3) those not annotated, including the house, garage, tennis court and fence, and the swimming pool. We infer that the tennis court fence was considered in 2003 to have been previously approved since it is treated in Plan No.035914/A in the same way as other existing approved structures such as the house and swimming pool.
12. The applicants submitted that as the 1975 Certificate of Occupancy and Use did not in text specifically refer to the tennis court but only to the house, the fence had not been approved. We note however that it did refer to both sets of plans on which the tennis court, the fence lines and poles are illustrated. The applicants relied upon Eames and ACT Planning and Land Authority [2003] ACTAAT 43 (24 September 2003) to argue among other things, in favour of a reduction in the size of the fence, but that case was different in significant respects. Eames dealt with a development application under Division 6.2 of the Land Act dealing with a proposed development, rather than an Order under Division 6.3. It was therefore subject to quite different legal requirements. Moreover Eames may be distinguished from this case on its facts.
13. As the tennis court fence was approved at that time, it is not open to a decision-maker to issue an Order retrospectively for its demolition or removal, even though it may not meet the standards for such a fence in the Territory Plan. The respondent further submitted that the fence had been approved a second time in 2007 in response to the development application dealing with the tennis court lights but, having found the fence already approved, it is not necessary for us to consider that later approval.
14. The decision under review is affirmed. The application for an Order is dismissed.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/45
APPLICANTS: PETER JOACHIM HILL & JANET MARY HILL
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: CARMELA CARRABS
COUNSEL APPEARING: APPLICANTS:
RESPONDENT: DR D JARVIS
PARTY JOINED:
SOLICITORS: APPLICANTS:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER: APPLICANTS: SELVES
RESPONDENT:
PARTY JOINED: SELF
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
DR E MCKENZIE, SENIOR MEMBER
MR J ASHE, MEMBER
DATE/S OF HEARING: 11 & 12 NOVEMBER 2008 PLACE: CANBERRA
DATE OF DECISION: 25 NOVEMBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0