JOHNSTON and TOWN OF EAST FREMANTLE
[2011] WASAT 96
•1 JULY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JOHNSTON and TOWN OF EAST FREMANTLE [2011] WASAT 96
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 16 JUNE 2011
DELIVERED : 1 JULY 2011
FILE NO/S: DR 277 of 2010
DR 145 of 2011
BETWEEN: STEPHEN ALLAN JOHNSTON
SALLY ANN MCKERCHER
ApplicantsAND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning - Development - Two storey residence incorporating former shop - Relaxation of boundary setback - Condition requiring retention and restoration of façade - Deemed refusal - Whether removal of the former tiling and its replacement with the current wall treatment was acceptable - Whether the removal of the former awning and its lack of replacement with the former awning or a replica awning was acceptable - Section 214 Direction - Exercise of discretion in issuing of Direction - Temporary removal of awning - Property not on Heritage List or in a Heritage Area - Weight to be given to Municipal Heritage Index
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214, s 252(1)
Town of East Fremantle Town Planning Scheme No 3, cl 1.6, cl 1.6(a), cl 1.6(c), cl 4.2, Pt 7, cl 7.1, cl 7.1.2, cl 7.2, Pt 9, cl 9.3, cl 10.2
Residential Design Codes of Western Australia (2010), cl 6.2.1
Town Planning and Development Act 1928 (WA), s 10
Result:
Applications for review in DR 277 of 2010 and in DR 145 of 2011 dismissed
Section 214 Direction of the Town of East Fremantle to stand with the wording of Clause 1 amended
Category: B
Representation:
Counsel:
Applicants: Selfrepresented
Respondent: Mr J Douglas (Representative)
Solicitors:
Applicants: Self-represented
Respondent: Town of East Fremantle
Case(s) referred to in decision(s):
Drake and City of South Perth & Anor [2005] WASAT 271
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings involved an application for review of two matters relating to the development of a new two storey residence incorporating a former shop at No 38 (Lot 5) Wolsely Road, East Fremantle.
The original approval by the respondent in February 2006 was subject to a condition requiring the retention and restoration of the façade of the former shop.
The matters at issue were the reinstatement of the tiling and awning to the former shop. Following the original approval, the respondent had granted approval for the removal of original tiling which was coming away from the brickwork and the original awning which was structurally unsound.
The issues arising for determination in the review of the first matter, an application for retrospective approval of a façade treatment which did not include tiling or an awning, were:
1.Whether the removal of the former tiling and its replacement with the current wall treatment was acceptable[;] and
2.Whether the removal of the former awning and its lack of replacement with the former awning or a replica awning was acceptable.
While the property was not included on the Heritage List established under cl 7.1 of the Town of East Fremantle Town Planning Scheme No 3 or a Heritage Area established under cl 7.2, the Tribunal found that the respondent, or the Tribunal in its place, could reasonably rely on a number of planning provisions to give the condition requiring the retention and restoration of the façade standing, and that this was the correct and preferable outcome.
On this matter, the Tribunal therefore found that the application for review of the application for retrospective approval of 'Shopfront including landscaping' at No 38 (Lot 5) Wolsely Road, East Fremantle should be dismissed.
In the context of the above decision and having reviewed the particular circumstances of this case, the Tribunal found in the second matter, the Section 214 Direction issued by the respondent, that the Section 214 Direction should stand. However, the Tribunal amended the wording to resolve the timing of its application and to clarify the intent of the Section 214 Direction.
Introduction
These proceedings involve two applications brought by Mr Stephen Allan Johnston and Ms Sally Ann McKercher (applicants).
The first, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), sought review of a deemed refusal of the Town of East Fremantle (respondent or Council) of an application for retrospective approval of 'Shopfront including landscaping' at No 38 (Lot 5) Wolsely Road, East Fremantle (site).
The second, pursuant to s 214 of the PD Act, sought to set aside a Direction issued by the respondent on 28 April 2011 requiring reinstatement of an awning and tiling on the façade of the former shop structure on the subject site.
Site and locality
The site is located on the southwest corner of the intersection of Wolsely Road and Osborne Road in a residential area within the Richmond Precinct of East Fremantle. The site currently accommodates a recently constructed two storey residence and a former single storey shop structure constructed to both street boundaries on the northeast corner of the lot.
The street is part of an established residential area although the Richmond Primary School is located immediately across the street on the eastern side of Osborne Road
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme (MRS). The site is zoned Residential and has a residential density coding of R12.5 under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme).
The subject site is within the Richmond Precinct established by the Town of East Fremantle Local Planning Strategy (LPS). The LPS seeks to 'conserve existing heritage houses and settings' in this precinct.
At the time of the original approval, in February 2006, for the development of the new residence on the subject site, the former shop was included in the respondent's Heritage Survey of 2006 - draft Municipal Heritage Inventory (MHI). The MHI was formally endorsed by the respondent in August 2006.
Clause 1.6 of TPS 3 sets out 'Aims of the Scheme' which includes at cl 1.6(c) '[t]o promote the conservation of buildings and places of heritage significance ... '.
Clause 4.2 of TPS 3 sets out 'Objectives of the Zones' which includes in the general provisions '[t]o conserve significant places of heritage value ... '.
Clause 10.2 of TPS 3 provides that, in determining a development application the Council shall have regard to and may attach conditions relating to matters including:
...
(a)the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the provisions of the Local Planning Strategy, including the aims and objectives, the strategy for the relevant sector and any planning proposals for the particular precinct[;]
(c)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
...
(i)the conservation of any place that has been entered in the Register within the meaning of the Heritage of Western Australia Act 1990, or which is included in the Heritage List under clause 7.1, and the effect of the proposal on the character or appearance of a heritage area;
...
(l)the cultural significance of any place or area affected by the development;
...
Proposed development
On 21 February 2006, the respondent approved an application for the demolition of an existing residence and the development of a new two storey residence on the subject site. This redevelopment included the retention and incorporation of a former shop located on the northeast corner of the site.
The Officer Report to the Council noted that 'the existing building on the site, which is an integral part of the application, does not comply with the prescribed front and side setbacks'. In approving the development, the respondent therefore exercised its discretion in the relaxation of boundary setbacks from the eastern boundary from 7.5 metres to 900 millimetres and the northern boundary (incorrectly nominated as the western boundary in the approval) from 3.0 metres to 0 metres.
This approval was subject to a condition which read as follows:
...
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 this 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.
...
The Heritage Report referred to makes the following recommendation:
...
The existing shop should be retained. The proposal for the shop is supported subject to the retention of the existing fabric and details. This includes retention of the truncated corner door and frame, existing windows and openings and existing wall tiles.
...
While the recommendations of the Heritage Report do not formally address the awning, the body of the report suggests '[t]he existing awning is not significant ... ' and '[t]he re-instatement of a flat awning typical of the interwar era would be appropriate ... '.
The correspondence to the applicants accompanying the approval contained a number of 'Notes' including:
...
(f)if at all possible[,] the awning be refurbished and retained and this matter be considered further at the point of 'application for building licence'[;]
(g)it would be preferable to see the shop restored in compliance with Burra Charter principles[;]
...
Evidence provided at the hearing suggested that the building surveyor of the respondent, in recognising that the tiling was coming away from the wall and that the awning was structurally unsound, had approved the removal of both. This was subject to the reinstatement of the awning.
Respondent's decisions
The respondent did not formally determine the application for retrospective approval of 'Shopfront including landscaping' the subject of DR 277 of 2011.
The Section 214 Direction (Direction) of the respondent issued on 28 April 2011 required the applicants to 'restore the Land as nearly as practicable to its condition before the development occurred'. The development is set out in Item 1 of the Schedule to the Direction as follows:
Removal of the awning and tiles on the façade of the dwelling located on the Land.
The issues
The issues arising for determination in the review of DR 277 of 2010 were set out in the Tribunal Order made by then Senior Member David Parry on 18 April 2011:
...
(a)Whether the removal of the former tiling and its replacement with the current wall treatment is acceptable[;] and
(b)Whether the removal of the former awning and its lack of replacement with the former awning or a replica awning is acceptable.
...
In regard to DR 145 of 2011, should the Tribunal find for the applicant in DR 277 of 2010, it would logically follow that the Direction of the respondent on 28 April 2011 requiring the reinstatement of the awning and tiling on the façade of the former shop structure should be set aside.
If, however, the Tribunal found for the respondent in DR 277 of 2010, the standing of the Direction would be subject to review.
The Tribunal will address each of the matters in turn.
The heritage evidence
The heritage expert for the respondent, Mr Philip Griffiths, provided evidence in regard to the acceptability of the removal of both the dado wall tiling and the former awning.
In regard to the tiling, it was his view 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. Mr Griffith suggested it was possible to procure such tiles. He also confirmed that the extent of the tiling should be to the height of the existing plaster dado in the area below the existing parapet.
Mr Griffiths also expressed the opinion that the awning was an essential part of the aesthetic of a corner shop of this vintage and a close replica to the original should be fitted.
The documentary evidence of Ms Rosemary Rosario, a heritage expert who initially provided advice to the respondent and subsequently represented the applicants, was less clear. However, the original assessment for the respondent recognised the importance of both the tiling and the need to reinstate an awning.
Thus, in terms of the heritage values of the former shop, it emerged that the correct and preferable outcome would be the reinstatement of tiling close to the original scheme and the fitting of a close replica of the original awning.
The weight to be given to the heritage evidence
It should be noted that the respondent lacks any explicit statutory basis to apply such heritage requirements. The property is not included on the Heritage List established under cl 7.1 of TPS 3 or a Heritage Area established under cl 7.2. Therefore, there is no basis to elevate heritage issues to a determinative level in considering such an application.
The MHI carries no statutory impact other than that established by cl 7.1.2 of TPS 3 which requires the respondent to have regard to the municipal inventory in the preparation of the Heritage List.
Mr Jamie Douglas, for the respondent, advanced the view that the Council could, in applying the provisions of cl 1.6 of TPS 3 (Aims of the Scheme), cl 4.2 (Objectives of the Zones), and cl 10.2 (Matters to be Considered by Local Government, consider the provisions of the MHI and could reasonably apply the management provisions of the MHI in terms of conditions attaching to a planning approval. More remarkably, Mr Douglas argued such heritage provisions could be applied to any property in the municipality whether included on the MHI or not. The Tribunal rejects such views. The general provisions of TPS 3 cannot be used to effectively circumvent the particular provisions and due processes set out in regard to heritage protection in Pt 7 and cl 9.3 of TPS 3.
The standing of the condition
The question therefore reverts to whether the respondent had any defensible basis to attach conditions relating to the tiling and awning in the first place.
At the hearing, it was established that the original planning application included both tiling and an awning. The approved building licence drawings indicate tiling with a note that 'existing tiling [be] retained and reinstated where necessary' and an awning. It is not clear whether the awning was the existing awning or a proposed replica awning.
One can reasonably conclude that the respondent considered that the quid pro quo for the substantial discretionary relaxations on the boundary setbacks on both the northern and eastern boundaries was the retention of the tiling and an awning on the former shop structure.
In reaching this conclusion, the respondent could, beyond considering heritage as one of a range of potentially relevant issues, reasonably rely on the following planning instruments:
•Clause 1.6(a) of TPS 3 (Aims of the Scheme) which seeks 'to preserve the existing character of the Town'.
•The Residential Zone provisions of cl 4.2 of TPS 3 which seeks '[t]o safeguard and enhance the amenity of residential areas and ensure that new housing development is sympathetic with the character and scale of the existing built form'.
•The requirements of cl 10.2(a) ('the aims, objectives and provisions of the Scheme ...'), cl 10.2(c) ('the requirements of orderly and proper planning'), cl 10.2(j) ('the compatibility of a use or development with its setting') and cl 10.2(o) ('the preservation of the amenity of the locality') of TPS 3.
•The performance criteria of cl 6.2.1 of the Residential Design Codes of Western Australia (2010) 'Setback of buildings generally' which includes 'contribute to a desired streetscape'.
The review of DR 277 of 2010
In this context, the Tribunal finds that the respondent, in exercising its discretion to relax the setback requirements on the northern and eastern boundaries, had grounds to require the retention and/or reinstatement of the tiling and awning on the former shop structure.
Thus, in the matter of DR 277 of 2010, the deemed refusal of the respondent of the application for retrospective approval of 'Shopfront including landscaping' at the site, the Tribunal is of the view that the application should be refused. The reasons to refuse this application are that the failure to reinstate the tiles and awning would:
•fail to preserve the existing character of the town;
•fail to ensure that the new housing development was sympathetic with the character and scale of the existing built form;
•not contribute to a desired streetscape; and
•not maintain the character of the former shop.
The review of the s 24 Direction
In regard to the Direction issued by the respondent on 28 April 2011, as the Tribunal determined in Drake and City of South Perth & Anor [2005] WASAT 271 at [90] - [91], s 10 of the Town Planning and Development Act 1928 (WA) 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.
In the same decision, the Tribunal identified five important matters for consideration in the exercise of the discretion:
•It is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity.
•The impact of the contravention of the scheme on the affected locality and environment.
•The factual circumstances in which the contravention of the scheme took place.
•The time which has elapsed since the development was undertaken in contravention of the scheme.
•The expense and inconvenience which would be involved in remedying the contravention of the scheme.
In the current matter, the applicants' decision to retain the former shop presumably brought private advantage which the respondent was willing to entertain given what it perceived as the public benefits of retaining the former shop. It is also clear that the removal of the tiles and awning substantially undermined those public benefits on the affected locality in terms of preserving what was the existing character of the shop.
While the respondent recognised that the structural condition of the existing awning prevented its retention, the approval to remove it was subject to reinstatement. In addition, while the respondent agreed to the removal of the existing tiles, this did not remove the requirement to construct the development in compliance with the approved plans, which included tiling to the former shop.
The reinstatement of the tiling and awning would clearly involve a cost to the applicants. However, 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.
While the precise details of the exchanges between the applicants and respondent are not particularly clear, evidence was provided that the respondent had written to the applicants in October 2008 raising the issue of breaches of the original planning approval.
In the hearing, the applicants raised a number of procedural matters over the manner in which the respondent had dealt with the development. These included a concern that condition 2 on the original approval was not clear, that the respondent's MHI provided no policy or guide in the circumstance of the original application, that the respondent had failed to identify evidence of guidelines, practice or policy that vindicated their decision, and that the respondent had unnecessarily and unreasonably delayed final building approvals.
The contention that the original condition was not clear is not an unreasonable conclusion. The condition refers to a heritage report which is not particularly explicit in terms of its content, the decision to delegate matters to a further Executive Officer decision was not definitive, and the latter section of the condition is formally expressed as an 'opinion'. More problematic, the matter of the awning, which the respondent in the hearing raises to an 'essential part of the aesthetic' of the shop, is relegated to an advice note on the correspondence attached to the approval to be dealt with at the point of application for building licence. Furthermore, the respondent's apparent intention to see the existing awning refurbished and retained is not consistent with the heritage report referred to in condition 2 which suggests that '[t]he existing awning is not significant'.
The status of the respondent's MHI has been dealt with above and does not warrant further comment.
Given all of the circumstances set out above, the Tribunal is of the view that the Direction issued by the respondent should stand. However, the Direction should be amended in regard to the following wording of cl 1:
•The time within which the Direction is to be effected shall be varied to be '60 days following the date of the decision of the Tribunal in this matter'.
•The wording 'to remove the Development and to restore the Land as nearly as practicable to its condition immediately before Development occurred' shall be amended to read 'to reinstate tiling 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 licence drawings dated April 2006'.
Conclusion
In the review of the deemed refusal of the respondent of the application for retrospective approval of 'Shopfront including landscaping' at the site, the Tribunal took the view that one can reasonably conclude that the respondent considered that the quid pro quo for the substantial discretionary relaxations on the boundary setbacks on both the northern and eastern boundaries was the retention of the façade, including the tiling and an awning, on the former shop structure.
Moreover, the Tribunal found that in reaching this decision the respondent could, notwithstanding the fact that the property was not on the Heritage List or within a Heritage Area, reasonably rely on a number of relevant planning provisions.
In reviewing this matter, the Tribunal found that the failure to reinstate the tiles and awning on the existing shop would:
•fail to preserve the existing character of the Town of East Fremantle;
•fail to ensure that the new housing development was sympathetic with the character and scale of the existing built form;
•not contribute to a desired streetscape; and
•not maintain the character of the former shop.
It follows that the application for review of the application for retrospective approval of 'Shopfront including landscaping' at the site should be dismissed.
In regard to the Direction issued by the respondent on 28 April 2011, the Tribunal determined, given all of the circumstances of this particular case, that the Section 214 Direction issued by the respondent should stand. However, the Direction should be amended in regard to the wording of cl 1 to clarify the timing of its application and to make the intent clearer.
Orders
The Tribunal makes the following orders:
1.The application for review of the application for retrospective approval of 'Shopfront including landscaping' at No 38 (Lot 5) Wolsely Road, East Fremantle is dismissed.
2.The Section 214 Direction issued by the respondent should stand. However, the direction should be varied in regard to the following wording of clause 1:
•The time within which the Direction is to be effected shall be varied to be '60 days following the date of the decision of the Tribunal in this matter'.
•The wording 'to remove the development and to restore the Land as nearly as practicable to its condition immediately before Development occurred' shall be amended to read 'to reinstate tiling 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) of the former shop and reinstate a new awning as set out in the approved building licence drawings dated April 2006'.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER