Ingram and Anor and Town of Vincent
[2006] WASAT 244
•23 AUGUST 2006
INGRAM & ANOR and TOWN OF VINCENT [2006] WASAT 244
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 244 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:644/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) MR L GRAHAM (SESSIONAL MEMBER) | 23/08/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary point determined and the respondent invited to set aside its decision of 21 February 2006 and substitute a new decision consistently with the reasons of the Tribunal. | ||
| B | |||
| PDF Version |
| Parties: | LYNNETTE INGRAM ALAN LAMBERT TOWN OF VINCENT |
Catchwords: | Town planning Retrospective planning approval – Condition – Ambiguity of condition relating to a "parapet" wall – Relationship of condition to previous roof approvals Gable roof – Hipped roof – Eaves – Condition designed to attenuate water run off – Building licence variations – Condition found to be inappropriate – Decisionmaker invited to remake decision – Word and phrases "Parapet wall" |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 31, s 31(2)(c) Town of Vincent Town Planning Scheme No 1, cl 34, cl (i)(b), cl (ii)(d), cl (ii)(e) Town Planning and Development Act 1928 (WA), s 26(1)(a)(ii) Residential Design Codes 2002 (R Codes), cl 3.3.2, cl 3.3.2 Building Code of Australia (BCA), s 3.7.1(b), s 3.7.1(b) |
Case References: | Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36 Nil |
Orders | 1. The preliminary issue is answered in terms of the reasons of the Tribunal published with these Orders.,2. Unless the applicants object in writing within 21 days (in which case the matter is to be listed for directions before Mr Graham), consistently with those reasons, the respondent is invited, under the provisions of s 31(2)(c) of the State Administrative Tribunal Act 2004 (WA), to set aside its decision of 21 February 2006 and substitute a new decision(s) which does not use the expression "parapet wall".,3. Subject to paragraph 2 of these Orders, reconsideration by the respondent in the terms indicated finalises the review and the review shall stand dismissed without prejudice to the applicant's ability to seek a further review on the substituted decision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : INGRAM & ANOR and TOWN OF VINCENT [2006] WASAT 244 MEMBER : MR P McNAB (MEMBER)
- MR L GRAHAM (SESSIONAL MEMBER)
- ALAN LAMBERT
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Retrospective planning approval – Condition – Ambiguity of condition relating to a "parapet" wall – Relationship of condition to previous roof approvals - Gable roof – Hipped roof – Eaves – Condition designed to attenuate water run off – Building licence variations – Condition found to be inappropriate – Decisionmaker invited to remake decision – Word and phrases - "Parapet wall"
(Page 2)
Legislation:
State Administrative Tribunal Act 2004 (WA), s 31, s 31(2)(c)
Town of Vincent Town Planning Scheme No 1, cl 34, cl (i)(b), cl (ii)(d), cl (ii)(e)
Town Planning and Development Act 1928 (WA), s 26(1)(a)(ii)
Residential Design Codes 2002 (R Codes), cl 3.3.2, cl 3.3.2
Building Code of Australia (BCA), s 3.7.1(b), s 3.7.1(b)
Result:
Preliminary point determined and the respondent invited to set aside its decision of 21 February 2006 and substitute a new decision consistently with the reasons of the Tribunal.
Category: B
Representation:
Counsel:
Applicants : Mr G Broad
Respondent : Ms B Handcock
Solicitors:
Applicants : As Agent
Respondent : Mullins Handcock Lawyers
Case(s) referred to in decision(s):
Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's Decision
1 The matter under consideration resulted from orders made by the Tribunal on 13 April 2006, that a preliminary hearing on the papers determine the meaning, application or validity of a certain condition; in particular, the meaning of the expression "parapet wall" as it relates to the southern elevation of an "as constructed" two storey garage and loft (games room) at 516 Fitzgerald Street, North Perth.
2 The expression "parapet wall" was contained within condition (ii)(d) imposed by the Town of Vincent on the applicants, Mrs L Ingram and Mr A Lambert, as part of a retrospective planning approval issued on 26 October 2005. Condition (ii)(d) was subsequently amended on 21 February 2006, as part of a reconsideration ordered by the Tribunal.
3 The Tribunal examined the matter as it related to the existing structure with a "hipped" roof and eaves and guttering on its southern elevation, as against the earlier planning approval of 20 August 2003 and the building licence issued on 17 December 2003, which required a "gable" roof with no eaves or guttering on the southern elevation.
4 The Tribunal found difficulty with the expression "parapet wall" in that its use in earlier approvals in 2003 was for a different type of construction than that contemplated by the respondent in condition (ii)(d).
5 However, the explanation of what was required by condition (ii)(d) was not conveyed in the wording of the condition, but rather in the respondent's submission of 19 May 2006 on the preliminary issue.
6 In view of the uncertainty of the meaning of the expression "parapet wall" in condition (ii)(d), the Tribunal invited the Town of Vincent to reconsider its decision of 21 February 2006 and, as provided for in s 31 of the State Administrative Tribunal Act 2004 (WA), set aside the decision and substitute a new decision.
Introduction
7 The application for review by Mrs L Ingram and Mr A Lambert (applicants) dated 24 November 2005, was lodged under s 26(1)(a)(ii) of the Town Planning and Development Act 1928 (WA), (as then in force), against a decision of the Town of Vincent (respondent) on
(Page 4)
- 11 October 2005 to impose a number of conditions which were unacceptable to the applicants.
8 The decision of the respondent was as a result of a planning application dated 9 May 2005 for retrospective planning approval for both alterations and additions to an existing single house and the construction of a rear garage with loft (games room) at 516 Fitzgerald Street, North Perth.
9 The decision was conveyed to Mrs L Ingram on 26 October 2005 in these terms:
"[T]he Council ADVISES the applicant and owner that the works that form part of clause (i)(b), (ii)(d) and (ii)(e) above shall be completed within twenty-eight (28) days of notification, and the Council AUTHORISES the Chief Executive Office to proceed with legal proceedings should the above works not be completed and the unauthorised street/front fence remains after this ninety (90) days period…"
10 As a result of submissions, dated 23 January 2006, from Mrs Ingram to the Town of Vincent in relation to clause (i)(b) (street/front fence), (ii)(d) (existing garage wall) and (ii)(e) (screening of upper level garage windows) and after reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Town advised on 9 March 2006 that they now supported the deletion of Conditions (i)(b) and (ii)(e).
11 With respect to condition (ii)(d) the advice was a follows:
"[T]he Council DOES NOT SUPPORT the deletion of Condition (ii)(d) and further AMENDS Condition (ii)(d) to read as follows:
'…(ii)(d) the existing wall of the garage with loft addition on the southern elevation being modified to provide a parapet wall to the southern boundary within 90 days of notification, and subject to first obtaining the consent of the owners of No. 514 (Lot 6) Fitzgerald Street, North Perth, if access over No. 514 Fitzgerald Street is needed to construct this parapet wall…'
(Page 5)
Tribunal order for a preliminary matter determination
12 With the matter now confined to condition (ii)(d) (parapet wall) the following order was made at a directions hearing of this Tribunal:
"1. Leave is granted to amend the application for review to raise the question of condition "(ii)(d)", the only condition remaining in dispute between the parties, that condition having been amended by the Respondent upon a s 31 reconsideration [under the State Administrative Tribunal Act 2004 (WA)]on 21 February 2006.
2. It being apparent from the discussions in Directions [in the Tribunal] that the clause is possibly ambiguous or uncertain, the matter is first to be determined by way of a preliminary hearing into the question of the meaning, application or validity of the condition in particular as to the meaning of the expression "parapet wall" therein occurring.
3. The preliminary hearing is to be determined upon the papers.
4. The respondent is by the close of business within 28 days from the date of these orders to file and serve written submissions on the question to be determined (including reference to the original plans and conditions and, as appropriate, the building licence subsequently issued).
5. The applicants are within 21 days from receipt by them of the respondent's submissions to file and serve written submissions in reply on the question to be determined.
6. The respondent may, if it wishes, file and serve a brief written reply within a further seven days.
7. The parties have liberty to apply to the Tribunal for good cause and on reasonable notice for a sitting for directions (whether by telephone or otherwise), by reason of anything arising out of
- the making of these orders or compliance with them."
Respondent's submissions on preliminary issue
13 The respondent's submissions broadly argue, as follows:
a) The meaning of the term "parapet wall" becomes apparent once the history of this matter is considered.
b) The term was used in condition (ii)(d) of the grant of retrospective approval to reinstate the effect of the approvals previously granted to the garage with loft, such that there would be no guttering or other horizontal protrusions from the southern elevation of the garage, merely a straight wall.
c) Condition (ii)(d) is a lawful exercise of the Town's discretion on the application for retrospective planning approval under cl 34 of Town Planning Scheme No. 1 (TPS 1).
d) The applicants have not constructed the southern elevation of the garage with loft in accordance with either the planning approval of 20 August 2003 or the building licence of 17 December 2003.
e) Condition (ii)(d) ought to be construed not only in the context of the application for retrospective approval but also having regard to the prior planning approval and building licence. Both approvals required a gable roof with a straight southern wall with no guttering or eaves; this a "parapet wall".
f) If condition (ii)(d) is not constructed in this context, the applicants may benefit by reason of their inconsistent and unlawful conduct by building a roof with guttering and eaves which did not accord with either the planning approval or building licence. They have sought retrospective
- planning approval to address their non-compliance.
- g) The meaning of condition (ii)(d), and in particular what is meant by a "parapet wall", is clear in the context of the 2003 planning approval and building licence when compared with the "hipped" roof with eaves and guttering shown in the plans for which retrospective approval has been sought.
h) The respondent requires the applicant to modify the existing wall on the southern elevation by making it a "parapet wall" by removing the eaves and guttering and increasing the height of the wall by three courses (or 0.257 metres) so that the elevation functions in accordance with the previous planning approval and building licence and not as a "hipped" roof with eaves and guttering.
Applicants' submission on preliminary issue
14 The applicants' submission broadly argues:
a) The respondent's submission incorrectly links the question of condition (ii)(d) to the original plans and building licence. The orders of the Tribunal of 13 April 2006 only require submissions on the meaning of condition (ii)(d) and the expression "parapet wall" therein.
b) Condition (ii)(d) applies as a condition to an approval dated 26 October 2005 and refers to plans dated 12 May 2005, which clearly show a hipped roof to the south elevation of the building.
c) Condition (ii)(d) requires the south boundary wall to be a "parapet wall".
d) The question is clearly "what would constitute a parapet wall as required to be provided in the approved design as shown on plans dated 12 May 2005." The reference to earlier approvals
- requiring a "gable" are not relevant to the question.
- e) The term "parapet wall" is incorrectly used in condition (ii)(d) and should not be used as neither the Residential Design Codes 2002 (R Codes) nor the Building Code of Australia (BCA) define a "parapet wall".
f) The R Codes contain no requirement for additional courses above the gutter line.
g) Clause 3.3.2 of the R Codes deals with requirements for buildings on a boundary but makes no mention of a "parapet wall".
h) Section 3.7.1(b) of the BCA shows a typical cross section of an external wall. The cross section shows no requirement for three courses of brickwork above the gutter.
i) As there is no requirement under the R Codes or the BCA for a boundary wall to have three courses of brickwork above the gutters and there is no specific power for the Council to ask for a "parapet wall" under legislation then it should, if doing so by a condition of approval, specifically define what a "parapet wall" is and what design requirement must be met in its design.
j) It is contended that the building, as constructed, complies with condition (ii)(d) of the approval of 26 October 2005 and that there should be no order to alter the building to provide a wall three courses above the gutter.
Respondent's submissions in reply
15 The respondent's submissions in reply may be summarised as follows:
a) The respondent maintains that the earlier approval and building licence are relevant in construing condition (ii)(d).
(Page 9)
- b) The retrospective planning approval applied for under cl 34 of TPS 1 seeks to address departures from the plans approved on 20 August 2003. That is, it seeks to make those departures lawful on and from the date of approval under cl 34.
c) The respondent's advice of 26 October 2005 that the Chief Executive Officer was authorised to commence legal proceedings, was addressing departures from the planning approval of 20 August 2003. The earlier approval is relevant and can be used to assist in the interpretation of condition (ii)(d).
d) Condition (ii)(d) is intended to bring the "as built" structure into conformity with the plans approved on 20 August 2003 and the plans approved by the building licence.
Assessment of the subject site and immediate locality
16 The subject site can be described as Lot 5 on Swan Location 671 Fitzgerald Street (No 516), North Perth. It has an area of 630 square metres.
17 The land is rectangular in shape and is oriented in an east-west direction with Fitzgerald Street to the west and a right-of-way (ROW) to the east. The ROW provides vehicular access to the property.
18 The existing two-storey garage with loft has its southern wall built approximately 210 millimetres from the southern lot boundary with No. 514 Fitzgerald Street.
Background to garage (with loft) construction
19 On 29 May 2003, an application with plans was lodged with the respondent for town planning approval for partial demolition of and alterations to the existing home and the construction of a two-storey triple garage with cellar and loft.
20 Several of the plans attached to the application (A03, A05 and A08) show the southern wall of the garage built on the southern boundary with the adjacent Lot 6 (514 Fitzgerald Street). Plan A05 describes the southern wall as a "face brick parapet wall" and Plan A08 clearly shows the construction with a "gable" roof with a 30 degree pitch.
(Page 10)
21 The approval to commence development issued on 20 August 2003 included eleven conditions. Condition (iv) states:
"(iv) subject to first obtaining the consent of the owners of No 514 Fitzgerald Street for entry onto their land the owners of the subject land shall finish and maintain the surface of the boundary (parapet wall) facing No 514 Fitzgerald Street in a good and clean condition.
It is clear from the wording of condition (iv) that the respondent accepted that the proposed southern boundary wall with its triangular upper portion (gable) was a "parapet wall".
22 It is also clear that the design of the southern boundary wall would not require eaves or guttering and that rain water run off from the "gable" roof would only flow to the east and west. There would be no flow to the south.
23 On 17 December 2003, a building licence was issued. The approval advice stated:
"The owner and the builder shall ensure that:
a) all works are carried out in accordance with these plans; and
b) all works necessary or reasonably incidental to, or resulting from, these works, comply with the requirements of the Building Code of Australia 1996, as amended unless the Council agrees in writing, with or without conditions, to waive or vary those requirements."
24 From our examination of plans WD04.3.1 and WD04.3.5, prepared by Abstract Designs, and dated 15 December 2003, it is clear that the proposed southern wall of the proposed garage is still located on the southern boundary of the subject land with Lot 6 (514 Fitzgerald Street). However, WD04.3.5 shows the construction with a "gable" roof with only a 15 degree pitch.
25 An examination of the 33 conditions of the building licence approval shows that condition 30 reflects exactly the wording of condition (iv) of the planning approval of 20 August 2003 and includes the same reference to a "parapet wall".
26 In the footnotes to the building licence, it is stated:
(Page 11)
- "Where applicable, no development shall commence or continue unless it is the subject of a current planning approval granted by the Town. Development shall conform with all conditions of this Planning Approval."
It is clear from the wording of condition 30 that the respondent still accepted at this point that the proposed southern boundary wall with its triangular upper portion (gable) was considered a "parapet wall".
27 What is also clear is that the building licence plans showing a 15 degree pitch did not match the plans showing a 30 degree roof pitch as part of the planning approval. The effect of this change in roof pitch was to raise the eastern and western extremities of the boundary wall below the gable.
28 However, despite this error by the respondent by not marrying the planning approval with the building licence, the southern boundary wall still did not require eaves or guttering, and rain water run-off from the "gable" roof would only flow to the east and west. There would still be no flow to the south.
29 On 22 March 2005, Council received a report on the "as built" variations to the planning approvals and building licence and requested a new planning application with relevant plans for the existing development.
30 With respect to the garage with loft, the "as built" structure was set back 210 millimetres from the southern boundary and the roof profile modified to a "hipped" roof with eaves and guttering along the top of the southern boundary wall.
31 One effect of this change is that rain water run-off would now flow to the east and west and also to the south towards Lot 6 (514 Fitzgerald Street).
32 On 9 May 2005, a new planning application was lodged for retrospective planning approval with associated plans dated 12 May 2005 showing the "as built" structures. The plans clearly show the garage with loft set back 210 millimetres from the southern boundary and the modified "hipped" roof with eaves and guttering on the southern elevation.
33 On 26 October 2005, a new planning approval was issued with conditions, including condition (ii)(d) which stated:
(Page 12)
- "(d) the existing wall of the garage with loft addition on the southern elevation being modified to provide a parapet wall to the southern boundary written 90 days of notification."
34 On 21 February 2006, condition (ii)(d) was subsequently modified from that shown in [34] above to also make reference to the adjoining Lot 6 (514 Fitzgerald Street) as outlined in [11] above.
35 It is clear from the wording of condition (ii)(d) that the respondent still required the construction of a "parapet wall", but what was not clear from the wording of the condition were the precise requirements of the respondent in terms of design and construction of the wall.
Meaning of the expression "parapet wall"
36 In the applicants' submissions of 8 June 2006 on the preliminary issue, the claim is made that the expression "parapet wall" is not contained in either the R Codes, the BCA or any of the respondent's policies. That claim was not contested in the respondent's submissions in reply on 16 June 2006.
37 The principal difficulty and confusion that has arisen as to the meaning of the expression "parapet wall" stems from the original plans lodged with the planning application which described the southern elevation wall as a "face brick parapet wall". Both the planning approval and building licence continued to use the expression "parapet wall" for the southern boundary wall with its triangular upper portion of wall (gable).
38 The expression "parapet wall" was again used by the respondent in its retrospective planning approval of 26 October 2005 (condition (ii)(d)) but in an entirely different context. The new context was not a wall beneath a "gable" roof with no eaves or guttering as contemplated in the original planning approval and building licence, but a wall beneath a "hipped" roof with eaves and guttering which would need to be removed and the wall increased in height.
39 It is only the respondent's submission on the preliminary issue of 19 May 2006 that it appears to the Tribunal that what is now meant by the expression "parapet wall" is that portion of the southern elevation wall comprising the additional three courses of brickwork (0.257 metres).
40 In the view of the Tribunal the expression "parapet wall" means that part of an external wall that extends above the edge of a roof or more simply a low wall at the edge of a roof. We note that Roberts-Smith J in
(Page 13)
- Low and Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36 accepted, at 41, expert evidence that parapet walls "are walls which project above the line of the roof".
41 In that sense, the use of the expression "parapet wall" by the respondent in its 26 October 2005 approval was correct in wanting the height of the existing wall to be increased above the roof line by means of the construction of a "parapet wall".
42 However, the difficulty that the Tribunal has with condition (ii)(d) is that the meaning of the expression "parapet wall" is not clear in terms of what is required in both its design and construction.
Application of condition (ii)(d)
43 In terms of the application of condition (ii)(d) it would appear from the respondent's submissions that the intent of the condition is for the garage with loft to revert as much as possible to that approved under the planning approval of 20 August 2003 and the building licence of 17 December 2004, so that all rainwater run-off from the roof is contained on the subject land and there are no protruding eaves merely a straight wall.
44 To achieve this objective the height of the existing wall on the southern elevation will need to be increased by three courses of brickwork (0.257 metres). Of necessity, the eaves will need to be removed to allow the height of the wall to be increased.
45 The effect of such construction, with the "hipped" roof retained and rain water run-off still flowing to the south, would be the need to construct a "box" gutter on the northern side of the three courses of brickwork to ensure that run-off is collected and contained on the subject land.
46 The other effect of such construction would be to avoid the possibility of rain water run-off to the south overflowing onto the adjoining Lot 6 (514 Fitzgerald Street).
47 The Tribunal can find no reason why the intent behind condition (ii)(d) would not be applied effectively in terms of proper design and construction.
(Page 14)
Validity of condition (ii)(d)
48 The respondent argues that condition (ii)(d) ought to be construed in the context of not only the application for retrospective approval, but also having regard to both the prior planning approval and building licence.
49 The applicants disagree and argue that the Tribunal's orders of 13 April 2006 only require submissions on the meaning of condition (ii)(d) and the expression "parapet wall" therein. In other words, they argue that previous approvals should not be a consideration in the matter.
50 The applicants also argue that as there is no specific legal power for the respondent to require a "parapet wall" that the building as constructed complies with condition (ii)(d).
51 From the point of view of the Tribunal it is entirely appropriate when a local authority is considering an application for retrospective approval to have regard to the original application and subsequent approvals in order to understand the rationale behind and context of any previous conditions imposed.
52 In this case that rationale and context was to ensure that all rain water run-off from the roof was contained on the subject land, and that to effect this objective there would be no protruding eaves or guttering merely a straight wall.
53 In that context it would have been open to the respondent to require a reconfiguration of the roof to a "gable" roof in order to accord with the original approvals. Instead they have chosen a less disruptive option.
54 A further point in this matter is that even if previous approvals were not relevant to the current approval of 21 February 2006, it would still have been a lawful exercise of the Town's discretion on the application for retrospective planning approval under cl 34 of TPS 1 to impose the same condition (ii)(d) for precisely the same reason that is to contain all rain water run-off to the subject land.
55 However, once again the Tribunal reiterates that the meaning of condition (ii)(d) is unclear in its wording, therefore deficient in that respect.
(Page 15)
Conclusion
56 The matter before the Tribunal at this time results from orders made on 13 April 2006. These were in the context that the only remaining dispute between the parties is in relation to a condition (ii)(d), imposed by the respondent as part of a retrospective planning approval of 26 October 2005, for a two-storey garage with loft (games room).
57 The difficulty identified in the Orders was that it was apparent that condition (ii)(d) was possibly ambiguous or uncertain and that the matter was first to be determined upon the papers by way of a preliminary hearing into the question of the meaning, application or validity of the condition; in particular as to the meaning of the expression "parapet wall" therein occurring.
58 In its assessment of the matter, the Tribunal had before it extensive submissions by both parties on the preliminary issue and the respondents' submissions in reply.
59 Of prime importance are the relevant conditions included in the original planning approval of 20 August 2003 and in the building licence issued on 17 December 2003.
60 What is clear is that the earlier approvals required the construction of the two-storey garage with loft with a "gable" roof; the prime intent being that rain water run-off would flow to the east and west with no flow to the south towards the adjoining Lot 6 (514 Fitzgerald Street). There would therefore be no eaves or guttering on the southern elevation.
61 However, the structure that has been built is that of a "hipped" roof with eaves and guttering on the south elevation. This led to an application for retrospective approval.
62 The application was subsequently granted with conditions which included condition (ii)(d). The condition required the southern elevation to be modified to provide a "parapet wall" which would prevent the possibility of rain water run-off into an external peripheral gutter, and the possibility of water overflow into the adjoining Lot 6.
63 The difficulty the Tribunal has with the expression "parapet wall" is that its use in earlier approvals was for a different type of construction than now currently contemplated by the respondent. In fact, the Tribunal concludes that its use in the earlier approvals was incorrect with respect to
(Page 16)
- the ordinary meaning of the expression "parapet wall", and confusing and inconsistent with condition (ii)(d).
64 In the view of the Tribunal, the use of the expression "parapet wall" in condition (ii)(d) is correct, but what is precisely required in terms of its design and construction has only been clarified in the respondent's submissions of 19 May 2006. In effect what is now required is the removal of the existing eaves and guttering on the southern elevation and the construction of three courses of brickwork on top of the existing wall.
65 This clarification is not obvious from the wording of condition (ii)(d).
66 In the knowledge of what is now required, the Tribunal can see no difficulty with the required building construction taking place in accordance with a reworded condition. Nor has the Tribunal any difficulty with the validity of such a condition having regard to the intent of earlier approvals in August and December of 2003.
67 In view of the uncertainty of the meaning of the expression "parapet wall" in condition (ii)(d), the Tribunal invites the respondent, under the provisions of s 31(2)(c) of the State Administrative Tribunal Act 2004 (WA), to "set aside" the decision and substitute a new decision which does not use the expression "parapet wall" but requires that:
a) the existing eaves and guttering on the southern elevation of the garage with loft (games room) be removed; and
b) an additional three courses of brickwork be added to the "as constructed" southern elevation wall in order to ensure that rain water run-off will be confined to, and contained within, the subject site at 516 Fitzgerald Street, North Perth.
68 In the event of a new application for review being lodged against a revised condition(s), the matter would then need to be assessed on the merits or otherwise of the revised condition(s).
69 The applicants will be given an opportunity to respond to this suggested course.
Orders
70 For the foregoing reasons, the orders of the Tribunal are as follows:
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- 1. The preliminary issue is answered in terms of the reasons of the Tribunal published with these orders.
2. Unless the applicants object in writing within 21 days (in which case the matter is to be listed for directions before Mr Graham), consistently with those reasons, the respondent is invited, under the provisions of s 31(2)(c) of the State Administrative Tribunal Act 2004 (WA), to set aside its decision of 21 February 2006 and substitute a new decision(s) which does not use the expression "parapet wall".
3. Subject to paragraph 2 of these orders, reconsideration by the respondent in the terms indicated finalises the review and the review shall stand dismissed without prejudice to the applicant's ability to seek a further review on the substituted decision.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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