| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JOHNSTON and TOWN OF EAST FREMANTLE [2011] WASAT 139 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 SEPTEMBER 2011 FILE NO/S : DR 268 of 2011 BETWEEN : STEPHEN ALLAN JOHNSTON SALLY ANN MCKERCHER
Applicants
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords: Review by judicial member of determination of Tribunal upon a matter involving a question of law - Confirmation of direction to remedy unlawful development - Whether any error of law disclosed Legislation: Planning and Development Act 2005 (WA), s 214, s 214(3), s 244
State Administrative Tribunal Act 2004 (WA), s 3(1)
Town of East Fremantle Town Planning Scheme No 3
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Result: Application for review of Tribunal's determination dismissed Category: B
Representation: Counsel:
Applicants : Self-represented
Respondent : Mr J Douglas (Public Sector Employee)
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Drake and City of South Perth & Anor [2005] WASAT 271
Johnston and Town of East Fremantle [2011] WASAT 96
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
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REASONS FOR DECISION:
Summary of judicial member's decision 1 Mr Johnston and Ms McKercher sought a review by a judicial member of a determination of the Tribunal, when constituted without a legally qualified member, in which the Tribunal confirmed (but varied to make more prescriptive) a direction given to them by the Town of East Fremantle. As there was no error of law disclosed in the determination, the application for a review by a judicial member was dismissed.
Background 2 Mr Stephen Allan Johnston and Ms Sally Ann McKercher have sought a review by a judicial member, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), of the determination made by the Tribunal in Johnston and Town of East Fremantle[2011] WASAT 96 (reasons) in which the Tribunal confirmed (but varied to make more prescriptive) a direction given to them by the Town of East Fremantle (Town) under s 214(3) of the PD Act on or about 28 April 2011 (direction). The direction alleged that Mr Johnston and Ms McKercher had undertaken development, namely 'removal of awnings and tiling on the façade' of the building at No 38 (Lot 5) Wolsely Road, East Fremantle (site), in contravention of the Town of East Fremantle Town Planning Scheme No 3 (TPS 3), and required them: Within 60 days following service of this Direction to remove the Development and to restore the [site] as nearly as practicable to its condition immediately before the Development occurred, to the satisfaction of the Town of East Fremantle. 3 Mr Johnston and Ms Kercher did not dispute that they had removed the tiles and the awning from the façade of the building on the site. 4 At [55] of the reasons, the Tribunal decided that, although the direction should be confirmed, it should be amended in relation to the following wording: (Page 4)
as close to the original tiles as possible up to the existing dado level to the eastern and northern elevations (as far as the parapet extends) and reinstate a new awning of the former shop as set out in the approved building license drawings dated April 2006'. 5 At the same time as it confirmed and amended the direction, the Tribunal refused Mr Johnston and Ms McKercher's development application made on 17 September 2010 for retrospective approval under TPS 3 of 'Shopfront including landscaping' at the site (DA). The site comprises a two storey residence that incorporates a former corner shop. Although the retrospective development for which development approval was sought in the DA was described as 'Shopfront including landscaping', the only two aspects of the development that were in contention in the proceeding were the removal of the former tiling of the shop and its replacement with a new wall treatment and the removal of the former shop awning and its lack of replacement with the original awning or a replica. 6 On 21 February 2006, the Town had approved an application for the demolition of an existing residence at the site and the erection of the new two storey residence incorporating the former corner shop. That approval was subject to the following condition: 2. The façade of the existing building once used as a 'corner shop', which includes two windows and a door[,] is to be retained and restored in conformance with the Heritage Report. Council recognises that the sourcing of wall tiles for the front façade may be difficult and delegates the issue to the Chief Executive Officer in consultation with relevant officers[.] Council is of the opinion that the original tiles should be retained as much as practicable. 7 At [32] [34] of the reasons, the Tribunal referred to and accepted the heritage expert evidence of Mr Philip Griffiths that 'the loss of the tiling was unacceptable and that the preferred outcome would be for a replacement tile that was close to the original scheme' (which, Mr Griffiths said, it was possible to procure) (at [33]) and that 'the awning was an essential part of the aesthetic of a corner shop of this vintage and a close replica of the original should be fitted' (at [34]). The Tribunal refused the DA for the following reasons set out at [45]: (Page 5)
8 Mr Johnston and Ms McKercher have not sought to challenge the Tribunal's decision to refuse the DA. Rather, in the application for a review by a judicial member, Mr Johnston and Ms McKercher have sought an order that: The application for section 214 Direction issued by the respondent be dismissed.
Consideration of application for a review 9 Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination challenged by Mr Johnston and Ms McKercher was made by Senior Sessional Member Mr P De Villiers who is not a legally qualified member. 10 However, there is no error of law disclosed in the determination. At [46] of the reasons, the Tribunal determined, correctly, (although referring to an earlier section that has now been replaced by s 214 of the PD Act), that the provision 'conferred a discretion on the responsible authority, if development was undertaken in contravention of a town planning scheme, as to whether to give a direction to the owners of the land, and if it decided to give a direction, as to its terms'. At [47] of the reasons, the Tribunal set out 'five important matters for consideration in the exercise of the discretion' that were identified in Drake and City of South Perth & Anor [2005] WASAT 271 (Drake) at [90] [91]. These five considerations were stated in Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 at [63] as follows: (Page 6)
11 At [48] [54] of the reasons, the Tribunal briefly addressed the matters for consideration in the exercise of discretion. In addition, in relation to the considerations of 'the impact of the contravention of the scheme on the affected locality and environment', the Tribunal had found earlier in its reasons (at [45]) that the removal of the former tiling and its replacement with the current wall treatment and the removal of the former awning and its lack of replacement with a replica awning had adverse planning impacts that warranted refusal of the DA. 12 Contrary to para [7] of Practice Note 4 Review of decisions of the Tribunal under s 244 of the Planning and Development Act 2005, Mr Johnston and Ms McKercher did not provide 'a statement of the grounds for review clearly identifying the question or questions of law said to be involved'. Rather, it is clear from the arguments presented by Mr Johnston and Ms McKercher in their written submissions that their challenge is, fundamentally, to findings of fact made in the course of the exercise of discretion as to whether or not to confirm the direction, rather than involving any question of law. Findings of fact made in the exercise of the discretion were solely within the province of the senior sessional member and are not able to be challenged in this proceeding. 13 In relation to 'the impact of the contravention of the scheme on the affected locality and environment', Mr Johnston and Ms McKercher submitted that the Town had failed to provide proof, in particular because it did not have 'guidelines, practice or policy with regard to former shop fronts and they provided no evidence to the contrary'. However, the Town presented expert evidence from Mr Griffiths and from Mr Jamie Douglas, a town planner, which supported its position and the Tribunal found at [45] that the removal and failure to reinstate the tiles and awning had adverse impacts on the locality. 14 In relation to 'the factual circumstances in which the contravention of the scheme took place' and 'the time which has elapsed since the development was undertaken in contravention of the scheme', Mr Johnston and Ms McKercher referred to their 'frustrations in dealing with the [Town]', in particular because the Town 'chose to ignore any attempts to resolve the matter until 16 March 2010'. However, the Tribunal found at [51] of the reasons that the [Town] had written to (Page 7)
Mr Johnston and Ms McKercher in October 2008 'raising the issue of breaches of the original planning approval'. It appears that there was then correspondence between the parties in relation to this issue in late 2008 and Mr Johnston and Ms McKercher lodged development applications with the Town in October 2009 and October 2010 in an effort to obtain retrospective development approval for various matters including the development which was the subject of the Tribunal's determination. Mr Johnston and Ms McKercher commenced their first proceeding in the Tribunal on 15 September 2010 seeking, ultimately, retrospective development approval for the removal of the tiling and awning and the substituted wall treatment. The parties then engaged in a process of mediation. Clearly, therefore, the development which was the subject of the direction was in discussion between the parties on an intermittent basis since October 2008. 15 In relation to 'the expense and inconvenience that would be involved in remedying the contravention of the scheme', Mr Johnston and Ms McKercher criticised the Tribunal's finding at [50] that 'the cost was clearly envisaged as part of the original development' on the basis that 'removing the awning and tiles was not envisaged as part of the original development'. However, the Tribunal's finding at [50] clearly related to the fact that condition 2 of the DA required the façade of the shop to be 'retained and restored'. Mr Johnston and Ms McKercher also submitted that the cost of replacement of the tiles and awning has increased since 2008. However, they could have replaced the tiles and awning when the Town required them to do so in October 2008. In any case, the Tribunal clearly took the consideration of expense and inconvenience into account. 16 Mr Johnston and Ms McKercher also suggested that the Tribunal erred in law because it did not take into account matters raised by them beyond the 'five important matters for consideration' identified in Drake in deciding whether to confirm the direction. However, it is clear from [52] [54] of the reasons that the Tribunal did take into account other matters raised by Mr Johnston and Ms McKercher in the exercise of the discretion. Indeed, at [53], the Tribunal made a finding in favour of Mr Johnston and Ms McKercher that their contention that condition 2 of the development approval dated 21 February 2006, which required the façade to be retained and restored, was not clear, 'is not an unreasonable conclusion'. It is apparent from [55] of the reasons that the Tribunal took into account and balanced all of the considerations, including those advanced by Mr Johnston and Ms McKercher, and concluded that 'the Direction issued by the respondent should stand'. (Page 8)
17 In their submissions in reply, Mr Johnston and Ms McKercher criticised the Tribunal's response at [54] to one of the further matters they raised in relation to the exercise of discretion that 'the status of the respondent's [Municipal Heritage Inventory] has been dealt with above and does not warrant further comment' as 'an inconclusive statement and [demonstrates that the matter] has not been considered at all by the Member'. However, at [54], the Tribunal was clearly referring to its earlier reasons at [38] [39] for rejecting the Town's argument that the management provisions of the Municipal Heritage Inventory could be applied by the Town as a policy or guide in determining and imposing conditions in the circumstances of the development approval granted in February 2006. 18 When [54] is read in the context of [38] [39] of the reasons, it is clear that the Tribunal took the matters raised by Mr Johnston and Ms McKercher into consideration in the exercise of discretion. Nevertheless, taking all of those matters into consideration together with other relevant matters, the Tribunal determined that the direction should be confirmed. 19 Furthermore, it is clear that the Tribunal's decision was reasonably open on the evidence before it. Having received a development approval that required the façade of the former corner shop 'to be retained and restored in conformity with the Heritage Report', Mr Johnston and Ms McKercher removed the original tiling and substituted a new wall treatment and removed but did not replace the awning of the shop. Their failure to reinstate the tiling and awning, as the Tribunal found at [45], failed to preserve the existing character of the Town, failed to ensure that the new housing development was sympathetic with the character and scale of the existing built form, did not contribute to the desired streetscape and did not maintain the character of the former shop. Mr Johnston and Ms McKercher altered the façade of the shop without obtaining development approval and their application for retrospective development approval to authorise this development was refused by the Tribunal. As the Tribunal found at [51] of the reasons, the Town wrote to Mr Johnston and Ms McKercher in October 2008 'raising the issue of breaches of the original planning approval'. Finally, the Tribunal recognised that the reinstatement of the tiling and awning would 'clearly involve a cost to the applicants'. However, it found that 'this cost was clearly envisaged as part of the original development and the fact that the works required are predominantly external means that remedying the matter would cause limited inconvenience'. (Page 9)
Conclusion 20 As the Tribunal's determination was not affected by any error of law, the application for a review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed. However, order 2 made by the Tribunal on 28 June 2011, by which the time within which the direction is to be complied with was varied to '60 days following the date of the decision of the Tribunal', should be varied to refer to the date of the decision in relation to the application for a review by a judicial member.
Orders 21 The Tribunal makes the following orders: |