HODGE & COLLARD PTY LTD and CITY OF SOUTH PERTH - [2005] WASAT 295

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: HODGE & COLLARD PTY LTD and CITY OF SOUTH PERTH [2005] WASAT 295

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 10 NOVEMBER 2005

FILE NO/S: DR 480 of 2005

BETWEEN: HODGE & COLLARD PTY LTD
Applicant
AND
CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning - Review by President of determination of planning application by nonlegally qualified member - Whether member erred in law in construction of "Residential Design Codes" cl 3.2.5 P5 - Whether reference to "alternative outdoor living area" included communal open space for multiple dwellings - Substitution by President of determination where member erred in law - Whether 1.8 metre high masonry wall at street frontage enhanced streetscape

Legislation:

Town Planning and Development Act 1928 (WA), s 66

Residential Design Codes of Western Australia, cl 3.2.5

Result:

Application for review of member's determination upheld
Application for review of condition 21 dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P Hodge (Agent)
Respondent: Mr S McLaughlin (Public Sector Employee)

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272.
Lawson and Shire of Mundaring [2005] WASAT 1.

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The City of South Perth sought review by the President of a member's decision that a 1.8 metre high masonry wall on the street boundary of a site was acceptable.
The member made a legal error in interpreting part of the performance criteria in cl 3.2.5 of the Residential Design Codes which stated "front walls and fences to … enhance streetscape, taking account of … the need to provide screening where there is no alternative outdoor living area to the front setback". The part of this provision commencing with the words "the need …" did not apply to communal open space of multiple dwelling development.
There was no evidence before the member on which he could have found that the proposed front wall would "enhance streetscape" and, therefore, that the performance criteria in cl 3.2.5 were satisfied. The wall was not approved. The parties were left to consider other options.

Introduction

This is an application made by the City of South Perth under s 66(3) of the Town Planning and Development Act 1928 (WA) (Act) for review of a determination of Sessional Member Brown in which he reviewed a condition of planning approval imposed by the city. As I noted in Lawson and Shire of Mundaring [2005] WASAT 1 at [7] – [8], s 66 sets out two pre‑conditions which must be satisfied in order to found jurisdiction to review a determination. First, the determination must have been made by the Tribunal when constituted without a member who is a legally qualified member. Sessional Member Brown is not a legally qualified member. Second, the determination must have been upon a matter involving a question of law. As discussed below, the sessional member's determination was upon a matter involving a question of law, namely the correct interpretation of the performance criteria set out in cl 3.2.5 of the Residential Design Codes of Western Australia (Codes).
On 24 May 2005 the City granted conditional planning approval pursuant to City of South Perth Town Planning Scheme No 6 (TPS 6) and the Metropolitan Region Scheme to the erection of a six to seven level residential building comprising eight multiple dwellings, car parking and communal facilities at Lot 8, No 52 Mill Point Road, South Perth (site). The approved plans show a communal swimming pool, pool concourse and landscaping in the north‑western portion of the site between the front façade of the building and the street frontage. The west (street) elevation which was submitted for approval shows a 1.8 metre high by 7.3 metre wide masonry wall on the street frontage of the site which would screen the pool area. This boundary wall would occupy approximately 36% of the street frontage. The remainder of the frontage would be generally open, comprising visitor parking, pedestrian and vehicular access and some landscaping within a set back area to the building of generally 12.0 metres.
Hodge & Collard Pty Ltd subsequently sought review by the Tribunal of a number of conditions of planning approval. All but two of the conditions were resolved through mediation facilitated by the Tribunal. The application for review of the two remaining conditions, namely conditions 14(ii) and 21, was listed for hearing before Sessional Member Brown on 8 September 2005. It is the common position of the parties, and apparent from the transcript, that the sessional member upheld the application for review in relation to both conditions and gave oral reasons for doing so. I will set out the material parts of his reasons below. The following statement by the sessional member is recorded at the end of the transcript:
"Although I have told you now what my decision is with respect to each of those conditions, for clarity I'm going to write up reasons for decisions and they will be conveyed to you as soon as I can possibly get them to you, but I don't think there should be any doubt about exactly what I have decided here today. This hearing is adjourned."
Sessional Member Brown suffered a serious illness shortly after the hearing and before he had prepared written reasons for his decision. At a directions hearing on 7 October 2005 before Senior Member Parry, the parties indicated that although Sessional Member Brown had foreshadowed written reasons, the transcript relevantly answered that description and sufficiently recorded his decision and reasons. Senior Member Parry agreed. Mr McLaughlin, the City's representative, indicated that while the City accepted Sessional Member Brown's determination in relation to condition 14(ii), it would seek review under s 66 of the Act in relation to the determination of condition 21. The senior member made orders for the filing of the foreshadowed application and written submissions by each party, and that the application for review be determined by me entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA). The senior member also required the parties to jointly file a set of orders which reflected the resolution of the agreed conditions through mediation and Sessional Member Brown's determination in relation to conditions 14(ii) and 21. On 7 November 2005 orders were issued by the Tribunal reflecting the agreement reached at mediation and the sessional member's determination in relation to the outstanding conditions.
Condition 21 imposed by the City was as follows:
"A front fence is not approved as part of this approval."
Sessional Member Brown determined that this condition should be deleted and replaced with the following:
"The applicant to submit modified drawings showing a pool surround fence on the alignment at a maximum height of 1.8 metres and of masonry construction." (Order 2(g) made by the Tribunal on 7 November 2005 to give effect to Sessional Member Brown's determination).

Was there an error of law?

Clause 4.1 of TPS 6 provides that "unless otherwise provided in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of the Codes". It is common ground that the express variations to the Codes set out in cl 4.3 of the Scheme are not applicable.
It is common ground that the proposed front wall does not conform to the acceptable development provision in relation to street walls and fences in par A5 of cl 3.2.5 of the Codes, namely that "front walls and fences within the primary street setback area that are visually permeable 1.2m above natural ground level". The term "visually permeable" is defined in cl 2.2 of the Codes as "continuous vertical gaps of at least 50mm width occupying not less than one third of its face in aggregate of the entire surface or where narrower than 50mm, occupying at least one half of the face in aggregate, as viewed directly from the street" or "a surface offering equal or lesser obstruction to view".
The performance criteria in relation to street walls and fences set out in par P5 of cl 3.2.5 of the Codes is as follows:
"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."
It was common ground before Sessional Member Brown and in this application that the first bullet point in the performance criteria is not applicable in the circumstances of this case.
However, Sessional Member Brown considered that the second bullet point of the performance criteria was applicable. In its application for review of Sessional Member Brown's determination, the city contends that the sessional member made a legal error in his interpretation and application of this provision. In particular, the city submits that in consequence of the definition of the term "outdoor living area" in cl 2.2 of the Codes, the second bullet point has no application to development of multiple dwellings. The term "outdoor living area" is defined in the Codes as follows:
"The area external to a Single House or Grouped Dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use but excludes any area with a dimension of less than one metre minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling."
The term "grouped dwelling" is defined in cl 2.2 as "a dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property". In contrast, the term "multiple dwelling" is defined as "a dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above any part of any other but does not include a Grouped Dwelling". The development in question in these proceedings plainly comprises a "multiple dwelling" as defined in the Codes, not a grouped dwelling. The city submits, therefore, that the second bullet point is inapplicable in the circumstances of this case.
It is apparent from pages 30 – 31 of the transcript that the city made the same submission to Sessional Member Brown. At pages 47 – 48 of the transcript, the sessional member rejected the city's submission and gave the following reasons:
"I'm not satisfied that a narrow view that Mr Bercov has given us of the second dot point in 3.2.5 is necessarily correct. I accept … that the term … 'alternative outdoor living area' is something that doesn't apply to residential dwellings, but if we're going to use this part of the codes to assess the merit of multiple dwellings, we've got to have some criteria.
We can't just keep dropping them out because maybe they aren't properly identified in the definitions. I would have thought we could take its literal meaning and say that we can take account of the need to provide screening where there is no alternative living area to the front set back. I believe that that can stand on its own, because without it what the codes would be saying is, 'Well if you're on a busy street, you might be able to build a wall, but in this particular instance you're confined to a 1.2 metre wall'. I think that's too fine an interpretation."
At page 50 of the transcript, the sessional member also gave the following reasons:
"My view is – and bear in mind this is a de novo hearing ‑ the Tribunal is in a position to say [that the front wall] should form part of the development approval.
Carrying on from that, … when you view the building in its entirety, standing back as it were from the other side of the street or as a passer‑by, you're looking at a fairly monolithic shape that's fairly tall and you've got a wall that … in the totality of the development is not so intrusive that it would impact on the general streetscape or amenity of the immediate area in any disastrous or meaningful way.
It's my view that the wall could be approved in this instance at 1.8 metres …"
It is apparent from these passages that the sessional member misconstrued the second bullet point of the performance criteria in cl 3.2.5 of the Codes. He appears to have initially accepted that that provision is inapplicable to "residential dwellings" (by which I assume he meant a "multiple dwelling"), although he then proceeded to apply what he referred to as a "literal meaning" of the provision under which he considered it applied in the case of communal open space of multiple dwellings.
The use of the expression "alternative outdoor living area" is a clear indication that the second bullet point is inapplicable to multiple dwelling development. As is apparent from the definition of the term, "outdoor living area" as used in the Codes refers only to an area which is external to a single house or grouped dwelling and which is to be used in conjunction with that dwelling. As the city pointed out, the general site requirements in Table 1 of the Codes support this conclusion as a minimum site requirement for outdoor living area is only specified for single house or grouped dwelling development on land coded "R17.5" and above and is not specified in relation to multiple dwelling development. Rather, Table 1 prescribes minimum communal open space requirements in relation to multiple dwelling development. The expression "communal open space" is defined in cl 2.2 of the Codes as "open space set aside for the recreational use of the occupants of the dwellings in a common development".
In its submissions in relation to this application, Hodge & Collard referred to the explanatory text of the Codes which states, in part, as follows:
"This principle of visual permeability applies to all forms of street, including communal streets. The exceptions to this principle are where a dwelling fronts onto an arterial road carrying high traffic volumes, or where protection is needed for headlight glare from such a road or, more rarely, where a wall is desirable to provide privacy to an outdoor living area. In these circumstances a solid wall of up to 1.8m high would be acceptable – at least for a proportion of the frontage – upon approval of the Council. Performance Criteria have been provided to guide the circumstances where a Council should grant such approval." (Page 49)
Although cl 2.2 of the Codes provides that the definitions set out in that clause apply in the case of residential development under the Codes "unless the context requires otherwise", the explanatory text does not indicate a contrary intent. In particular, the text uses the (defined) term "outdoor living area". The point is emphasised three paragraphs later in the explanatory text at page 50 where it is stated that "in exceptional cases, however, the only possible location for Outdoor Living Area for a dwelling will be in the street setback area". The capitalisation of the term "Outdoor Living Area" is an unambiguous reference to the definition of that term in the Codes. Moreover, the words "for a dwelling" emphasise that in order to qualify, the area in question must be intended to serve as an outdoor part of a single dwelling, that is as private open space, not as communal open space serving more than one dwelling.
Finally, it appears from the first passage of Sessional Member Brown's reasons set out earlier that the reason why he interpreted the second bullet point of the performance criteria as applicable to multiple dwelling development was that, otherwise, the Codes could not be used to "assess the merit of multiple dwellings". Two points should be made in relation to this aspect of the reasons. First, par P5 of cl 3.2.5 of the Codes is not concerned with merit assessment, but rather with whether multiple dwelling and other residential development under the Codes conform to the performance criteria that front walls and fences "promote surveillance and enhance streetscape", taking account of the two bullet points if applicable. Second, there is at least one obvious planning reason why the draftsperson may have considered that account should be taken of the need to provide screening where there is no alternative outdoor living area to the front setback for a single house or grouped dwelling, but not where there is no alternative communal open space area to the front setback for multiple dwelling development. By its nature, communal open space in a multiple dwelling development is "communal" rather than private open space, whereas outdoor living area for a single house or grouped dwelling is private open space for the use and enjoyment only of the residents of the dwelling concerned. Moreover, cl 3.4.3 of the Codes requires that each multiple dwelling also be provided with its own balcony or equivalent outdoor area which constitutes its private open space. There is, therefore, arguably a far more compelling planning justification for taking into account the need to provide screening where there is no alternative outdoor living area to the front setback for a single house or grouped dwelling than in the case of communal open space for multiple dwellings.
Sessional Member Brown made a legal error in the interpretation of the second bullet point of the performance criteria in cl 3.2.5 of the Codes. Plainly, this error was material to his determination and vitiated that determination. Section 66(2) of the Act provides that I may "revoke the … determination … and substitute another … determination … that the State Administrative Tribunal could have made in relation to [the] matter". I now turn to consider what should appropriately occur in this case.

What determination should appropriately be made?

The city submits that the appropriate consequence of the findings which I have made is that the determination of Sessional Member Brown in relation to condition 21 should be revoked and that condition 21 as imposed by the city should be affirmed.
As noted earlier in these reasons, it is common ground that the first bullet point in the performance criteria in par P5 of cl 3.2.5 is inapplicable. For the reasons discussed, the second bullet point is also inapplicable. The consequence is that account cannot be taken of either. Nevertheless, the performance criteria "front walls and fences to promote surveillance and enhance streetscape" could be satisfied in appropriate circumstances even if neither bullet point was applicable.
In his evidence before Sessional Member Brown, Mr RH Bercov, the City's Manager Development Services, accepted that the development generally promoted surveillance: transcript page 35. However, it was Mr Bercov's evidence that the proposed streetfront boundary wall would not "enhance streetscape" and that permeability was required: transcript at 35 – 37.
Mr PAN Hodge, the designing architect of the proposal, both represented Hodge & Collard and gave the evidence on its behalf before Sessional Member Brown. In his written evidence (Exhibit 2) and oral evidence (transcript pages 43 – 45), Mr Hodge presented essentially four arguments as to why the proposed front wall should be accepted by the Tribunal and condition 21 imposed by the city deleted from the approval.
First, he contended that the masonry wall was necessary to screen the pool area and an adjoining gymnasium from Mill Point Road which he described as "a reasonably busy street" on which there was a bus shelter located "immediately adjoining" that area. However, this argument can have no bearing on whether the front wall "enhance[s] streetscape".

Second, Mr Hodge contended that the wall was acceptable because "the scale of this wall relative to the scale of the building is miniscule": transcript page 43. It appears from Mr Brown's reasons at page 50 of the transcript that he accepted this argument and considered that the wall was not unacceptable on a merit assessment. However, although the 1.8 metre by 7.3 metre front masonry wall could arguably be viewed as "miniscule" by comparison with a 24.5 metre high building at a setback of 12.0 metres, that could not have the consequence that the wall satisfies the performance criterion of enhancing streetscape.
Third, Mr Hodge contended that a fire booster cabinet was required to be located at the street alignment and would occupy a 2 metre wide boundary wall in any case, and that the remaining 5.3 metre long section of wall could be 1.2 metres in height and satisfy the acceptable development provision. The implication was that the section of wall actually in question is 5.3 metres by 0.6 metres. In fact, as the wall does not satisfy the acceptable development provision, the question is whether the front wall as a whole "enhance[s] streetscape". Even if Mr Hodge's argument was correct, it could not have the consequence that the performance criteria is satisfied.
Finally, Mr Hodge submitted that the city, and the Tribunal on review, has discretion to approve the proposed front wall under cl 2.3.4 of the Codes. Subclause (1) of that provision states that where "Codes Approval" is required, the applicant is required to make an application to the relevant council and that subject to subclause (2) and (3), the council "is to exercise its discretion in considering such application having regard to the considerations, standards and requirements provided in the Codes". Subclause (2) provides that "discretion shall be exercised having regard to" certain considerations including Pt 3 of the Codes which includes subclause 3.2.5.
Having carefully considered the evidence before Sessional Member Brown and the transcript, I am satisfied that there was no evidence before him on which he could have reasonably concluded that the proposed front wall would "enhance streetscape" and, therefore, that the performance criteria in cl 3.2.5 of the Codes was satisfied. Unless Hodge & Collard's argument that cl 2.3.4 of the Codes confers an overriding discretion on the city, and the Tribunal on review, to approve an application which does not conform to either the acceptable development provision or the performance criteria, is accepted, and unless that discretion is positively exercised, the planning application must be refused or conditioned in the manner originally proposed by the city in the form of condition 21.
In Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272, the Tribunal considered an argument that it had discretion under cl 2.3.4 of the Codes to approve an application notwithstanding a breach of the maximum plot ratio control prescribed by Table 1. At [69], the Tribunal observed as follows:
"The meaning of cl 2.3.4 is far from clear. On the one hand, it appears to be premised on a requirement for "Codes Approval" which, under cl 2.3.1(3), is required where residential development is exempted from development approval under a town planning scheme. On the other hand, the beneficial and facultative purpose of the clause, to permit flexibility in circumstances of non‑compliance, would appear to be equally apposite where approval is required under a town planning scheme which, in turn, requires that a development conform to the provisions of the Codes. The explanatory text, at page 25, certainly contemplates that "all Codes provisions (with the exception of the site area requirements set out in Table 1) are open to the exercise of discretion". On balance, it would appear that discretion is available, although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question."
On balance, it does appear that discretion is available under cl 2.3.4. However, it is not necessary in this case either to come to a final view in relation to this question, as, assuming that discretion is available, it could not be appropriately exercised in favour of approval of the wall. This is because the discretion is required to be exercised having regard to, among other provisions, cl 3.2.5 with which, for reasons discussed earlier, the proposed front wall does not comply, and because there does not appear to be any reason on the evidence before the sessional member as to why a front fence which does enhance the streetscape could not be accommodated together with use of the front setback area as communal open space. In particular, there is sufficient space in a 12.0 metre setback to screen the pool by landscaping or other means behind a more open fence. Indeed, a strip of landscaping is proposed on the inside of the wall. No doubt the parties can continue to consider this or other reasonable options.

Orders

In consequence of these findings, I make the following orders:
1.The application for review of the determination of Sessional Member Brown made on 8 September 2005 in relation to condition 21 is upheld.
2.Pursuant to s 66(2) of the Town Planning and Development Act 1928 (WA), Order 2(g) of the orders made by the Tribunal on 7 November 2005 in consequence of the determination of Sessional Member Brown on 8 September 2005 is revoked.
The effect of these orders is that the planning approval remains subject to condition 21 as imposed by the city. The currently proposed front fence is not approved. Hodge & Collard should formulate an alternative option for the front fence and obtain the city's approval to it.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT