KALLIDIS and CITY OF MELVILLE

[2006] WASAT 373

KALLIDIS and CITY OF MELVILLE [2006] WASAT 373

Last Update :08/01/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 373
Published:
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:661/2005, DR:214/2006	Heard:	31 AUGUST 2006 AND 22 SEPTEMBER 2006
Coram:	MS M CONNOR (MEMBER)	Delivered:	19/12/2006
No Pages:	27	Judgment Part:	1 of 1
Result:	1. The application for review relating to DR 214/2006 is dismissed 2. The decision of the respondent relating to DR214/2006 is affirmed 3. The application for review relating to DR661/2005 is dismissed 4. The direction issued pursuant to s 10(3) of the Town Planning and Development Act 1928 (WA) is affirmed but modified 5. The development is to be altered to comply with the modified direction 6. The question of costs is reserved 7. Except for the initial discussions held at the commencement of the hearing on whether the proceedings would be heard in private, the transcript of evidence in the proceedings is to be published
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : KALLIDIS and CITY OF MELVILLE [2006] WASAT 373 MEMBER : MS M CONNOR (MEMBER) HEARD : 31 AUGUST 2006 AND 22 SEPTEMBER 2006 DELIVERED : 20 DECEMBER 2006 FILE NO/S : DR 661 of 2005 BETWEEN : GEORGE KALLIDIS

Applicant

AND

CITY OF MELVILLE
Respondent

FILE NO/S : DR 214 of 2006 BETWEEN : GEORGE KALLIDIS

Applicant

AND

CITY OF MELVILLE
Respondent

(Page 2)

Catchwords:

Town planning - Development - Overheight solid masonry boundary fence - Whether structure is a "building" - Whether setback provisions of Element 3 of the Residential Design Codes are applicable - Impact on amenity of outdoor living area of adjoining property - Loss of light - Overshadowing - Scale and bulk

Town planning - Direction - Occupation of dwelling prior to satisfying conditions of planning approval - Role of the Tribunal in reviewing a Direction issued under s 10 of the Town Planning and Development Act 1928 (WA) (now s 214 of Planning and Development Act 2005) - Whether condition should be enforced by Direction if unworkable or incapable of being implemented - Error in wording but intent clear - Term of the Direction

Legislation:

City of Melville community Planning Scheme No 5, cl 7.3(c), cl 7.3(d), cl 7.8, cl 7.8(b), cl 7.8(c), cl 7.8(h), cl 7.8(k), cl 7.8(n)
Dividing Fences Act 1961 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401A, s 401(1)(b)
Planning and Development Act 2005 (WA), s 214, s 242, s 252(2)
Residential Design Codes of Western Australia 2002(WA), cl 2.2, Element 3, Element 8, Element 9
State Administrative Tribunal Act 2004 (WA), cl 61(2)
Town Planning and Development Act 1928 (WA), s 10, s 10(3)

Result:

1. The application for review relating to DR 214/2006 is dismissed
2. The decision of the respondent relating to DR214/2006 is affirmed
3. The application for review relating to DR661/2005 is dismissed
4. The direction issued pursuant to s 10(3) of the Town Planning and Development Act 1928 (WA) is affirmed but modified
5. The development is to be altered to comply with the modified direction
6. The question of costs is reserved
7. Except for the initial discussions held at the commencement of the hearing on whether the proceedings would be heard in private, the transcript of evidence in the proceedings is to be published

(Page 3)

Category: B

Representation:

DR 661 of 2005

Counsel:

Applicant : Self-represented
Respondent : Mr G Owens

Solicitors:

Applicant : Self-represented
Respondent : McLeods

DR 214 of 2006

Counsel:

Applicant : Self-represented
Respondent : Mr K Weymes

Solicitors:

Applicant : Self-represented
Respondent : City of Melville

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

Drake and City of South Perth & Anor [2005] WASAT 271
Hamzah and City of Fremantle [2006] WASAT 360

Case(s) also cited:

Abernethy and City of Melville [2005] WASAT 41
Adi Limited & Ors and Equal Opportunity Commission & Ors [2005] WASAT 49
Marine & Civil Bauer Joint Venture and Leighton Kumagai Joint Venture [2005] WASAT 269

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Kallidis, the owner of Lot 2 (No 113B) Point Walter Road, Bicton, was granted planning approval by the City of Melville to construct a two storey dwelling on the subject land in 2002. A subsequent building licence was issued for the development. A dispute arose between the two parties regarding the accuracy of floor levels and the identification of natural ground level during construction of the dwelling. As a consequence, Mr Kallidis submitted an application for retrospective planning approval for adjustment of levels higher than those approved in the initial development application. The City of Melville granted retrospective planning approval for the modified levels but imposed 10 special conditions on the approval, one of which required that all conditions must be satisfied prior to occupancy of the dwelling.

2 Mr Kallidis commenced occupation of the dwelling prior to satisfying a number of planning conditions. The City of Melville issued a Direction notice under s 10(3) of the Town Planning and Development Act 1928 (WA) requiring Mr Kallidis to comply with the outstanding matters identified in the notice. Mr Kallidis sought review of the Direction by the State Administrative Tribunal.

3 The outstanding matter of most concern related to condition 2 of the planning approval dated 26 March 2004, which required the erection of an overheight boundary fence, comprised of masonry and glass blocks, along portion of the southern boundary of the subject land. Mr Kallidis objected to constructing a boundary fence that incorporated glass blocks. He submitted a further planning application to the City of Melville which in effect proposed the substitution of the glass block portion of the boundary fence with masonry construction. This application was refused by the respondent and Mr Kallidis exercised his right to have this matter reviewed by the Tribunal.

4 Due to the relationship of the two matters, the Tribunal ordered that the matters remain as separate proceedings but be heard and determined together. The Tribunal, in considering what, in effect, was an alternative proposal to condition 2 of the planning approval dated 26 March 2004, found that the substitution of the glass block portion with masonry would no doubt further reduce the amenity of outdoor living area as the glass blocks assisted in ameliorating the impact of bulk of the overheight fence. The further diminution of amenity of the outdoor living area of the

(Page 5)

adjoining property could not be supported and, as such, the application warranted refusal.

5 There was no contest that Mr Kallidis had occupied the dwelling prior to satisfying all the conditions of planning approval. A number of arguments were raised by Mr Kallidis, of most merit was the argument that the conditions could not be practically met as they were not properly written and erroneous. The Tribunal found that although there was a clear error in the wording of the condition, Mr Kallidis' reliance on the ambiguity and impracticality of the condition could not be sustained given his involvement in the development, and the fact that a further development application was applied for and approved that clearly resolved any confusion. The Tribunal affirmed the Direction subject to modifications.

The proceedings

6 There are two applications for determination in these proceedings. Matter DR 661 of 2005 is an application to set aside a Direction issued by the City of Melville (respondent) to Mr Kallidis (applicant) pursuant to s 10(3) of the Town Planning and Development Act1928 (WA) (TPD Act). The Direction requires that the applicant alter the "Development", which is described in the notice as "the occupation of the dwelling on Lot 2 (No 113B) Point Walter Road, Bicton" (subject land), by giving compliance to the outstanding matters referred to in Item 3 of the Schedule.

7 The other proceedings, matter DR 214 of 2006, arise from an application for a review of the decision of the respondent to refuse planning approval for an overheight boundary fence of masonry construction along portion of the southernboundary of the subject land. The respondent refused to grant planning approval for the following reasons:

"A) Non-compliance with the performance criteria of clause 3.3.2 of the Residential Design Codes relating to buildings on the boundary; and

B) Non-compliance with the performance criteria of clause 3.9.1 of the Residential Design Codes relating to solar access for adjoining sites; and

(Page 6)

C) The height and density of the boundary wall is considered to have a detrimental impact on the livability and amenity of the landowners of the adjoining southern lot; and

D) The exclusion of the glass blocks as required by the Council in the planning approval dated 26 March 2004 may create a greater perception of loss of light and ventilation into the primary outdoor living area of the adjoining southern lot in addition to the required increased boundary wall height."

8 At the directions hearing on 5 July 2006 the Tribunal ordered that the matters are to remain as separate proceedings but are to be heard and determined together.

9 Further, Mr and Mrs Peterson, owners of the adjoining property at No 113(A) Point Walter Road, Bicton applied to the Tribunal, under s 242 of the Planning and Development Act 2005 (WA) (PD Act), for leave to make a submission in relation to these matters and provided a written submission that also included a report prepared by Mr Ken Adam, a consultant town planner and architect, dated 28 October 2003. The Tribunal, at the commencement of the final hearing held on 31 August 2006, found that Mr and Mrs Peterson had sufficient interest in these proceedings and accepted their written submission, excluding the report of Mr Ken Adam.

Background

10 There is considerable history relating to the development of the subject land and it is appropriate that the events leading to this point should be set out in detail in order to understand the background to matters before the Tribunal.

11 The applicant sought planning approval under the City of Melville Community Planning Scheme No 5 (CPS 5 or Scheme) for a two storey single residence on 4 January 2002. The respondent on 21 February 2002 granted planning approval to "the proposed development described on the application dated 04 Jan 2002 and accompanying plans" subject to four special conditions and 16 standard conditions (DA 3/2002DAR).

12 The first of a series of amended plans were submitted to the respondent on 28 January 2003. The first amended plan involved the inclusion of a sundeck at the rear of the proposed dwelling (DA2003-82).

(Page 7)

The respondent, by correspondence dated 25 March 2003, informed the applicant of the following:
"The modifications to the approved plans … as detailed on amended plans submitted on 28 January 2003 are acceptable.

The original planning approval dated 21 February 2002 and made out to you is still applicable to the development. All conditions outlined on this form are still applicable to your development, including the date of expiry for the approval."

13 A building licence was issued by the respondent for the construction of a two storey single residence on 31 March 2003 (BA 1612/2002/BDR). A further building licence was issued for the construction of a swimming pool on the subject land (BA 238/2002).

14 Subsequent to the approvals, there was a dispute between the parties regarding the accuracy of floor levels and the identification of natural ground level in DA 3/2002DAR and BA 1612/2002/BDR. A stop work notice was issued under s 401A of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG Act) by the respondent on 27 January 2004, as well as a s 401(1)(b) notice under the LG Act. The stop work notice ordered that the applicant stop all works, as works were being done in contravention of the LG Act. The s 401(1)(b) notice required the applicant to alter the building to remove the cause of objection, which was specified as:

"Works being done in contravention of the Act

The finished floor levels are 340 millimetres or thereabouts higher than was approved by the Building Licence referred to in Recital A. As a consequence, the levels of all works on the Land exceed or would exceed the approved height."

15 Mr Kallidis appealed to the Hon Minister against the requirements of the notices.

16 In order to resolve the issue, a further development application was submitted to the respondent, on 2 February 2004, seeking retrospective planning approval for adjustment of levels higher than those approved in DA 3/2002DAR. As a consequence of the increased floor levels, a number of privacy issues were identified by the respondent and taken into consideration in the determination of the application. Retrospective planning approval for "the increased floor level of the dwelling by

(Page 8)

134mm, an increase in the height of the pool of approximately 200mm, filling of the site, but excluding those areas generally west of the pool area, and the construction of a pool enclosure and retaining wall" was granted by the respondent on 26 March 2004, subject to 10 special conditions and four footnotes (DA-2002-3/A). Condition 1 of the retrospective approval stated that "[a]ll of the conditions of previous planning approvals apply unless otherwise varied by this approval" and a number of the conditions imposed responded to the privacy concerns identified in respect to the overlooking of No 113(A) Point Walter Road, Bicton (adjoining property). Further, condition 10 of this approval required that all conditions must be satisfied prior to occupancy of the dwelling.

17 Following advice from the respondent in relation to the above retrospective planning approval, the Hon Minister decided to uphold Mr Kallidis' appeals against requirements of LG Act notices.

18 A further planning application (DA-2002-3/B) was submitted by the applicant in response to special conditions 2, 6 and 7 of DA-2002-3/A. This application also included other minor amendments to the plans. The conditions of approval contained in DA-2002-3/A of concern read as follows:

"2. A masonry fence approximately one point eight metres (1.8m) high, plus six hundred millimetre (600mm) glass blocks (or other suitable material to the satisfaction of the Manager Planning Development Services), be constructed along the southern boundary of Lot 2, with the western extremity to match the existing masonry wall on Lot 1, and the western [sic] extremity to be to the eastern side of the kitchen window on Lot 2. The top of the coursing of the masonry wall to match the existing masonry wall on Lot 1;

...

6. The pool equipment is to be located no closer than 7m from the outdoor living area on Lot 1, or suitably enclosed to the satisfaction of the Manager Planning and Development Services.

7. The fence between the fencing mentioned in condition (2) above, and the front of the dwelling, is to be a sufficient

(Page 9)

fence as defined by the Council Local Law and 1.8m in height measured from the higher ground level."

19 The revised plans detailed two sections of wall along the southern boundary of the subject land and a further wall located east of the pool and at right angles to the southern boundary. Planning approval was granted on 3 November 2004 to the amended plans subject to 10 special conditions, four standard conditions and three footnotes. Condition 1 of this approval stated that "[a]ll other conditions of previous approvals, retrospective planning approvals remaining applicable to the two (2) storey single dwelling to Lot 2 (113B) Point Walter Road, Bicton." Further, the respondent issued a building licence for the amendments on the revised plans on 3 November 2004 (BA-2002-1612/A).

20 At sometime between November 2004 and November 2005 the applicant commenced occupation of the dwelling in contravention of condition 10 of planning approval DA-2002-3/A, which required that all conditions must be satisfied prior to the occupancy of the dwelling. The respondent initiated a prosecution against the applicant which came before Magistrate Mr Michelides in the Fremantle Magistrates Court on 4 November 2005. The applicant entered a plea of "guilty" at first return and a fine of $500 was imposed and costs of $513.20 were awarded to the respondent.

21 Subsequently, the respondent issued a Direction under s 10(3) of the TPD Act on 10 November 2005. The applicant, on 7 December 2005, made application to have the decision reviewed.

The Direction

22 The Direction, issued under s 10(3) of the TPD Act on 10 November 2005, required the applicant to alter the "Development" by giving compliance with the outstanding matters referred to in Item 3 of the Schedule. The Schedule is reproduced in full.

23 "SCHEDULE

Item 1: The Development

The occupation of the dwelling house on the Land.

(Page 10)

Item 2: The Land

Lot 2 (No 113B) Point Walter Road, Bicton.

Item 3: Particulars of Contravention

The Planning Approval for the Development dated 16 [sic] March 2004 is the fourth [sic] of four planning approvals given to the development on the Land.

Condition 1 of that Approval stated:

'All of the conditions of previous planning approvals apply unless otherwise varied by this approval.'


Condition 10 stated:

'10. All conditions must be satisfied prior to occupancy of the dwelling'. ('Condition 10')

An inspection of the dwelling on 29 August 2005 showed that it was occupied, in contravention of the condition 10, and clause 9.2 of CPS 5.

The following conditions were not satisfied:

DA 3/2002/DAR

1 That the upper level dining room window sill height and west facing section of the balcony sill height (as shown in red on the approved site plan), being fully screened to a minimum height of 1.2 metres above the finished floor level, to the satisfaction of the Manager Planning and Development Services.

2. The planting of a semi mature street tree at the owners full cost, prior to occupation of the residence, to the satisfaction of the Manager Planning and Development Services.

(Page 11)

DA 2002-3/A

3. A masonry fence approximately 1.8m high, plus 600mm glass blocks (or other suitable material to the satisfaction of the Manager Planning and Development Services), be constructed along the southern boundary of Lot 2, with the western extremity to match the existing masonry wall on Lot 1, and the western [sic] extremity to be the eastern side of the Kitchen window on Lot 2, the top of the coursing of the masonry wall to match the existing masonry wall on Lot 1.

4. The rear yard on Lot 2 is to be at natural ground level in accordance with levels depicted on survey plan prepared by Guidice Surveys, and any variation to the ground levels, or to the height of adjacent fencing will require a further planning approval of Council.

5. The pool enclosure is to have a minimum height along the southern boundary of less than the height of the fence mentioned in condition (2) above, with a maximum pitch of 25 degrees – the roof fabric to be non-reflective and translucent.

6. The area between the pool and the southern boundary fence to be non-accessible, but designed to accommodate pool safety standards, and to be planted and/or landscaped, and maintained in accordance with a landscaping plan approved by the Manager Planning and Development Services.

7. The pool equipment is to be located no closer than 7m from the outdoor living area on Lot 1, or suitably enclosed to the

(Page 12)

satisfaction of the Manager Planning and Development Services.
8. The fence between the fencing mentioned in condition (2) above, and the front of the dwelling is to be a sufficient height as defined by the Council Local Law and 1.8m in height measured from the higher ground level.

9. All openings to the lower Kitchen, Games Room (western and southern), Dining/Lounge (west), Balcony, Patio, Pool Area, Sun Deck and other raised areas to be screened to comply with the Residential Design Codes and Element 8 of the R Codes.

10. All conditions must be satisfied prior to occupancy of the dwelling.

DA 2002-3/B

11. Masonry wall 'B' shall be extended in length to nine-teen [sic] point two five metres (19.25m) commencing from the eastern extremity of the Kitchen Window (Ground Floor) to the western extremity of the existing masonry wall located on the southern adjoining property (No 113A Point Walter Road, Bicton).

12. The height of the masonry wall 'B' shall match the height of the existing masonry wall to Lot 1 (113A) Point Walter Road, Bicton and in all other cases extend one point eight (1.8) metres above the existing ground level of Lot 1 (113B) Point Walter Road, Bicton.

13. Any masonry portion of proposed wall 'B' that may extend above the height of the existing fibrous cement sheet fence locate between Lot 1 (113A) Point Walter Road,

(Page 13)

Bicton and Lot 2 (113B) Point Walter Road, Bicton shall match (in finish) to a finish that is to the written satisfaction of the landowner/s of Lot 1 (113A) Point Walter Road, Bicton.
14. The proposed opening to the eastern wall of the double garage and glass blocks of the eastern wall of the planter box are refused and do not form part of this approval.

15. Masonry wall 'C' shall be pitched at twenty five (25) degrees maximum with the height of this wall at the southern boundary being less than or equal to the height of masonry wall 'B'.

16. The pool equipment enclosure shall be suitably insulated to prevent noise form the pool equipment whilst in operation and the access door to the pool equipment store shall be located to the northern side of the pool equipment store to the satisfaction of the Manager Planning and Development Services.

17. Noise generated from the pool pump equipment shall comply with the Environmental (Noise) Regulations 1997.

18. The type and manner of privacy screening required to the southern and western sides of the second floor sundeck in accordance with condition 8 (Visual Privacy) of the Council's resolution in February 2004 will be determined via an inspection of Lot 2 (113B) Point Walter Road, Bicton by City of Melville Officers when the floor frame to the second floor Sun Deck has been installed and is adequately accessible."

24 A series of mediations were held in an attempt to settle the outstanding non-compliant matters listed in the Direction notice. A number of the matters were resolved; these are identified at para [48]. In (Page 14)

an effort to resolve the issue relating to item 3(3) of the Direction notice above, the applicant submitted several alternative materials as substitute to the glass blocks. The alternate materials were rejected by the respondent’s representative as they were not considered to be satisfactory substitutes. Consequently, Mr Kallidis submitted a further development application seeking approval for an overheight boundary fence of masonry construction along portion of the southern boundary of the subject land (DA-2006-489). This application was refused by the respondent at its meeting of 21 June 2006 for the reasons stated at para [7]. The applicant, on 30 June 2006, made application under s 252(2) of the PD Act to have this decision reviewed.

The overheight boundary fence

25 The most recent development application (DA2006-489) is in effect the substitution of the 600 millimetre glass block portion of the boundary fence, as required under condition 2 of DA2002-3/A and item 3(3) of the Direction notice, with 600 millimetres of masonry. The respondent in its assessment of the application has correctly treated this application as a discrete application, however, the effect of the previous approvals must be a relevant factor in the consideration and determination of this application. Mr Kallidis attempted to divert the Tribunal's attention to the appropriateness of condition 2 of DA2002-3/A and consider whether it should have been imposed as a condition of approval. The Tribunal informed Mr Kallidis that its role in these proceedings was not to review the appropriateness of the conditions of previous planning approvals but to review the decision of the respondent, the subject of this application.

26 The respondent contended that the proposed overheight boundary fence did not comply with the Residential Design Codes of Western Australia 2002 (WA) (Codes) as it did not satisfy the Acceptable Development standards or the Performance Criteria specified in Element 3 – Boundary Setbacks, Element 8 – Visual Privacy and Element 9 – Design for Climate. Mr Keith Weymes, Manager Planning and Development Service, asserted that for the purposes of the Codes, the proposed boundary fence was a "building" as part of the fence contained a retaining wall. "Building" as defined in cl 2.2 of the Codes is:

"[a]ny structure whether fixed or moveable, temporary or permanent, placed or erected upon land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining

(Page 15)

walls, but excludes boundary fences, pergolas and swimming pools." [emphasis added]

27 Mr Weymes indicated that it was the City's practice to use the terminology of "building" to apply in such cases. Mr Kallidis estimated that the approximate height of the retaining wall was only 200 millimetres for about 11 or 12 metres of the fence.

28 The Tribunal has recently addressed similar circumstances in Hamzah and City of Fremantle [2006] WASAT 360, where the Tribunal found that:

"The Tribunal is of the view that invoking the provisions of the Codes which set out dimensions for parapet walls of buildings and setbacks for building, outbuildings and other structures, is not useful or appropriate for assessing the impact of [a] fence. The definition 'Building' at cl 2.2 of the Codes specifically excludes boundary fences. The additional development applied for is a brush and limestone boundary fence to be built on top of the existing retaining wall. Even though the top of the fence might be higher than 1.8 metres above natural ground level and be set back about 200 millimetres, it remains a boundary fence. If it were completely of masonry, it might be termed a boundary wall or dividing wall, with different structural requirements, but nevertheless, it would still be a boundary fence. To label a fence as some other structure to invoke controls applicable to that other form of development is considered to be straining the purposes and intent of the planning controls beyond that necessary for orderly and proper planning."

29 The retaining portion of the proposed fence by definition is a "building" and therefore subject to the requirements of the Codes and provisions of the Scheme. However, as the retaining portion of the wall is only approximately 200 millimetres, it is exempt from the requirement for planning approval (cl 7.3(d)). The overheight boundary fence, which is the subject of this application, is exactly that and is not by definition subject to the setback requirements set out in Element 3 of the Codes, as this element specifically relates to "buildings". The explanatory notes to Element 3 recognise that boundary fences are not matters controlled by the Codes. As found in Hamzah, invoking the provisions of Element 3 of the Codes is not useful or appropriate for assessing the impact of the proposed boundary fence.

(Page 16)

30 A "boundary fence" does not require approval under CPS 5 (cl 7.3(c)). CPS 5 does not define "boundary fence", however, the respondent's local law relating to fences requires approval for all fences exceeding 1.8 metres in height. The Scheme provides that where words or expressions are not defined in the Scheme or in the Codes, they have their normal and common meaning. Typically, in a planning context a "boundary fence" would normally infer a 1.8 metre high fence and, in this instance, the respondent’s local law would support this understanding. Therefore, the relevant planning instrument for assessing the proposed development is CPS 5, which pursuant to cl 7.8 requires specific matters to be taken into consideration in the determination of an application. The relevant matters in respect to this application include:

• the orderly and proper planning of land within the area (subclause (b));

• the existing and likely future amenity of the area (subclause (c));

• the nature of the proposed development in relation to development either existing or proposed on adjoining land and the need to upgrade existing roads (subclause (h));

• any relevant submissions received on the application (subclause (k)); and

• any other planning considerations which the Council consider relevant (subclause (n)).

31 Although the respondent assessed the proposed development with reference to the Codes, the concerns raised relating to the impacts of the proposed overheight fence on the amenity of the adjoining property from overshadowing, loss of light, scale and bulk are valid considerations that fall within the ambit of cl 7.8 of the Scheme.

32 The applicant contended that the amenity of the adjoining property would be improved by the proposal as the fence would give him total privacy and the substituted masonry portion would ensure better noise suppression than the required glass blocks. Mr Kallidis engaged Mr Rod Pohl, a Lighting Consultant – Engineer, to assess expected light transmission of a masonry fence 1700 millimetre high with a 600 millimetre glass block structure on top of it. Mr Pohl did not expect better than 60% transmission of light on the horizontal plane, which would reduce at any incident above the horizontal plane, both due to refraction and the mortar joining the blocks. He considered that light transmission may further be reduced by a maintenance factor for

(Page 17)

contamination from dust and other contaminants. His opinion, based on the fact that the wall is on an east-west axis, was that sunlight would always strike the wall at a significant angle and, while there could be a transmission of 40% light on a horizontal plane, he would expect a 10 to 20% transmission from the sunlight. He concluded that any light gain would be insignificant.

33 The respondent commissioned Gabriels Environmental Design (Gabriels) to determine the impact of daylight penetration into the outdoor living area of the adjoining property resultant from a boundary fence. The initial assessment considered the impact of daylight penetration into the outdoor living area for two scenarios being:

• a 1700 millimetre high masonry boundary fence topped with 600 millimetre glass blocks above; and

• a boundary fence constructed to the same height but only in masonry.

34 To quantify the impact of the two scenarios, a daylight model was conducted using "Radiance". According to Gabriels, Radiance is a sophisticated three-dimensional ray-tracing program that can accurately predict daylight and artificial light levels within an internal or external space. Mr Polh agreed that Radiance was an appropriate tool to model the daylight penetration into the outdoor living area of the adjoining property.

35 The above scenarios were modelled under three environmental conditions:

• 12 noon at winter solstice – June 21, clear sky conditions;

• 12 noon at summer solstice – December 22, clear sky conditions; and

• 12 noon at winter solstice – June 21, cloudy conditions (full cloud cover).

36 The results of the modelling suggested the following:

"… light levels within the Outdoor Living Area of 113a Point Walter Rd are relatively similar, irrespective of whether the glass blocks or solid masonry is used. The daylight modelling indicates that the daylight levels within the Outdoor area are dominated by the diffuse transmission through the translucent roof sheeting, and also the direct solar transmission that occurs through the gap between the top of the wall and the edge of the roof sheeting.

(Page 18)

The only time of year when there is some noticeable different in light level contours is during the winter months when the sun is low enough in the sky to shire through the glass blocks. The direct sun shining through the glass blocks results in localised diffused sun patches. However, the overall light levels within the Outdoor Living Area is [sic] not greatly influenced by the localised direct sun penetration."

37 The report concluded that the light levels in the outdoor living area of the adjoining property were controlled by the daylight penetration through the translucent roof of the patio and that the inclusion of glass blocks on the top 600 millimetres of a 2.3 metre high fence provided negligible benefit in terms of light levels within the outdoor living area.

38 The respondent commissioned a further report from Gabriels which measured the daylight penetration impacts of a 2300 millimetre solid masonry wall set back 1500 millimetres from the boundary compared with a 2300 millimetre solid masonry wall located at the boundary. The results of this modelling and the expert evidence given in respect to setting the wall back 1.5 metres from the boundary are not relevant to the determination of this matter as the Tribunal does not consider invoking of the setback provisions set out in Element 3 of the Codes useful or appropriate in cases involving a "boundary fence".

39 Both experts agreed that the substitution of the 600 millimetres of glass blocks with 600 millimetres of masonry would provide negligible benefit, in terms of the level of light within the outdoor living area of the adjoining property.

40 In respect to the shadow cast by the two scenarios, the modelling shows that the shadows will be the same, except direct sun shining through the glass blocks in the winter months with clear sky conditions will result in localised diffused sun patches.

41 With respect to loss of light and overshadowing the evidence shows that amenity of the outdoor living area of the adjoining property would be marginally affected if the glass blocks of the approved boundary fence were substituted with masonry.

42 The third amenity issue raised by the respondent related to the scale and bulk of the boundary fence. The respondent contended that height and bulk of the wall will adversely affect the amenity of the adjoining property. The respondent focused on the need to set back the fence in accordance with the provisions of Element 3 to reduce the dominating

(Page 19)

effect of the wall on the outdoor living area. Although the emphasis on the setback requirement is incorrect, the impact of an overheight solid masonry wall on the outdoor living area of the adjoining property is a legitimate concern that needs careful consideration. Mr Kallidis asserted that the bulk of the boundary fence would not have any significant impact on the adjoining property as it was only 500 millimetres higher than a "standard" boundary fence. He further argued that "the [respondent] has already accepted a glass block wall of the same height, so its impacts in terms of height and bulk are not in issue".

43 The respondent asserted that condition 2 of DA2002-3/A was imposed as one of the measures in an attempt to reduce overlooking from the development on the subject land. It is clear that the intent of the condition 2 was also to mitigate the impact of the overheight boundary fence on the adjoining property by requiring the use of an alternate material on the top 600 millimetre portion of the fence. The substitution of the glass blocks with masonry revives the initial concerns. Mr and Mrs Peterson, in their submission, are obviously unhappy with the solution proffered by condition 2 and are strongly opposed to the current proposal as it would further diminish the amenity of their outdoor living area.

44 The Tribunal acknowledges that to date the applicant has been unable to find a material that would satisfy the respondent as a substitute to glass blocks and it may well be that there is no alternate material available that meets the respondent's criterion. In the ordinary course of developing the subject land, the owners of No 113(A) could expect to have a 1800 millimetre boundary fence erected adjacent to their outdoor living area. Condition 2 of DA2002-3/A will require the erection of an overheight boundary fence, which due to its additional height will diminish the amenity of outdoor living area. The substitution of the glass block portion with masonry will no doubt further reduce the amenity of outdoor living area as the glass blocks assist in ameliorating the impact of bulk of the overheight fence. The further diminution of amenity of the outdoor living area of the adjoining property cannot be supported by the Tribunal. Therefore, on this issue, the Tribunal considers that the application warrants refusal.

Should the s 10(3) notice be set aside?

45 Section 10 of the PD Act confers a discretion of the responsible authority as to whether or not to give a direction to the owner of land or any other person who undertook development in contravention of a town

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planning scheme, and if it decides to give a direction as to its terms. This includes development commenced, continued or carried out otherwise than in accordance with any condition imposed with respect to the development by the responsible authority pursuant to its powers under that scheme. The Tribunal in Drake and City of South Perth & Anor [2005] WASAT 271 [93]-[97] identified five important matters for consideration in the exercise of discretion under s 10 of the TPD Act (now s 214 of PD Act) . These are set out below:
"93 First, it is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. It is expected that, normally, those who carry out development or subdivision, or use land, should comply with the planning legislation and any applicable approval, licence or other authorisation in relation to that activity. As Kirby P (as his Honour then was) observed, in a related context, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 340:
"[T]here is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1951] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211.
94 Second, the impact of the contravention of the scheme on the affected locality and environment. This includes a consideration of whether "the breach complained of was a purely technical breach which was unnoticeable other than to a person well-versed in the relevant law (cf Parramatta City Council v RA Motors Pty Ltd(1986) 59 LGRA 121 at 125f)": Warringah Shire Council v Sedevcic(supra) per Kirby P at 339.

95 Third, the factual circumstances in which the contravention of the scheme took place.

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96 Fourth, the time which has elapsed since the development was undertaken in contravention of the scheme.

97 Fifth, the expense and inconvenience which would be involved in remedying the contravention of the scheme."

46 Mr Kallidis argued that due process had not been followed in relation to the actioning of the s 10(3) Direction and, if it had, the Direction would not have been issued. Mr Kallidis contended that the conditions could not be practically met as they were not properly written and erroneous. He further argued that there were discrepancies between the audits that had been used to determine whether the conditions had been complied with and that some of the conditions had been satisfied. Mr Kallidis frequently focused on what he considered to be an erroneous imposition of conditions on the planning approvals issued by the respondent. He proceeded to dispute the levels of the development as contended by the respondent. In effect, Mr Kallidis was seeking a review of the appropriateness of the conditions of planning approval, in particular condition 2 of DA2002-3/A. In proceedings for a review of a Direction, it is not open to the Tribunal to review the conditions of previous planning approvals. The time to challenge the correctness and appropriateness of the conditions by review has long since past. The Tribunal's role in these proceedings is to consider compliance issues and to determine whether or not to give a direction and, if it decides to give a direction, the terms of the direction. If it were the case that a condition which is sought to be enforced by direction is unworkable or incapable of being implemented, that might be a factor in the exercise of discretion, which suggests that the direction should not be given or should be set aside by the Tribunal. However, for reasons discussed below, the intent of condition 2 is clear and should be enforced.

47 The Direction asserts that the applicant occupied the dwelling on the subject land in contravention of condition 10 of planning approval dated 16 [sic] March 2004 (DA2002-3/A) and cl 9.2 of CPS 5.

48 Condition 10 of planning approval DA2002-3/A provides that all conditions of the approval must be satisfied prior to occupancy of the dwelling. There is no contest that Mr Kallidis occupied the dwelling prior to satisfying all the planning conditions. A number of the non-compliant matters have since been resolved. Mr Capobianco, Principal Building Surveyor of the City of Melville was called by the respondent to give evidence. He prepared a document entitled "Document Identifying

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Non-Complying Aspects of the Development", which details the status of the conditions as follows:
• items 3(1), 3(2) and 3(14) of the Direction notice have been met;

• items 3(3), 3(4), 3(5), 3(6), 3(7), 3(8), 3(9), 3(10), 3(11), 3(12), 3(13), 3(15), 3(16), 3(18) of the Direction notice have not been met; and

• item 3(17) of the Direction notice has a note – "not constructed".

49 It would appear that the respondent did not wish to pursue a number of the conditions specified in the abovementioned documents, as the evidence of Mr Capobianco, was that items 3(3), 3(8), 3(9) and 3(10) of the Direction remained unsatisfied.

50 Mr Kallidis initially maintained that there was only one condition outstanding, that being item 3(3) for which he contended that he could not comply with this Direction as it was ambiguous and incapable of being implemented. Under cross-examination he conceded that items 3(3), 3(8), 3(9) and 3(10) of the Direction were still outstanding.

51 Clearly there is an error in the wording of condition 2 of DA 2002-3/A and therefore of item 3(3) of the Direction notice and when read literally the condition and item make no sense. However, the intention of the condition is obvious - the second reference to "western" is plainly intended to be a reference to "eastern". Further, to assist in conveying the intent of the condition, it may have been prudent to indicate the extent of the fence on the approved plans; however, this omission does not result in the condition failing. Furthermore, Mr Kallidis' reliance on the ambiguity and impracticality of the condition is not sustained given his involvement in the development and the fact that a further development application was applied for in November 2004. The subsequent approval clearly identified the extent of the wall in relation to this aspect of the development. Mr Kallidis also argued that the existing asbestos boundary fence hindered the construction of the required boundary fence. Even if there was a dispute over the removal of the asbestos fence, there is nothing preventing the construction of the fence required by item 3(3) of the Direction notice within the confines of Mr Kalladis' property. Item 3(3) of the Direction should be affirmed, however, the wording of the condition should be modified to clearly express the intent.

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52 In respect to item 3(8) of the Direction, Mr Kallidis argued that he was unable to comply with this condition due to a souring relationship with the owners of the adjoining property and that agreement would never be reached between the two parties. Neighbour disputes over dividing fences are not an uncommon problem and there are options open to Mr Kallidis under the Dividing Fences Act 1961 (WA). A further alternative is to erect the fence within the boundaries of the subject land. Item 8 should be affirmed.

53 Item 3(9) of the Direction relates to visual privacy and compliance with the Element 8 of the Codes. As items 3(3) and 3(8) of the Direction have not been satisfied, there is an obvious non-compliance with the Visual Privacy requirements of the Codes, and if for no other reason this item should be affirmed. Further, the Tribunal is aware that Mr Kallidis, at this stage, is not intending to build the pool enclosure. This structure formed part of the respondent’s assessment relating to visual privacy and, as no evidence was led to show what the effect would be on overlooking if the structure was deleted, the Tribunal is not convinced that the dwelling without the pool enclosure would satisfy the relevant provisions of the Codes. It may be necessary for further evidence to be given to the respondent demonstrating that the deletion of the pool enclosure would not result in further overlooking of the adjoining property.

54 Item 3(10) of the Direction requires that all conditions must be satisfied prior to the occupancy of the dwelling. It is common ground that the applicant is in breach of this condition. The occupation of the dwelling prior to compliance with conditions of approval has resulted in considerable anguish to all concerned and the breach of the conditions affecting visual privacy has significantly impacted on the owners of the adjoining property. The Tribunal is not inclined to require the vacation of the said dwelling but will consider carefully the terms of the Direction.

55 The current term of the Direction requires compliance with the outstanding matters within 65 days of the notice. During the hearing, Mr Kallidis indicated that two months would not be sufficient time to erect a wall that incorporated the glass block section, as the process was a lot more complex than building a masonry wall and involved steel workers, glass block fixers and aluminium framers. He considered two months to be a reasonable timeframe for constructing a masonry wall. Mr Capobianco confirmed that some additional framing and reinforcing was required to ensure that the two materials formed one safe, combined unit. Given the additional work and the number of trades involved in constructing a masonry and glass block fence, it is reasonable that the

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time period for compliance be extended; however, given that the impact of non-compliance adversely affects the amenity of the adjoining property, the additional period should be relatively small.

Determination of the publication of the transcript for proceedings relating to DR 661 of 2005

56 At the final hearing of DR 661 of 2005 held on 22 September 2006, the Tribunal determined, pursuant to s 61(2) of the State Administrative Tribunal Act 2004 (WA), that in the interests of justice parts of the hearing be held in private so that the applicant could properly conduct his case.

57 Following the hearing, the Tribunal sought submissions from the parties as to whether that evidence should remain unpublished or should in fact be published. Mr Kallidis submitted that in the interests of harmony between neighbours, family and friends the evidence should remain private, while the City of Melville was of the view that the evidence should now be published.

58 The principal purpose for hearing this matter in private, was to afford Mr Kallidis the opportunity to present his case to the Tribunal in a surrounding where he felt comfortable enough to do so. This having been achieved, there is no reason for the evidence given in the proceedings to remain unpublished. For clarification, "evidence" does not include the initial discussions held at the commencement of the hearing on whether the proceedings would be heard in private. These discussions are to remain unpublished.

Costs

59 The Tribunal notes that during the hearing both parties foreshadowed an application for costs. Should this be the case, the matter will need to be argued at a later date. To enable this to happen, the question of costs is reserved.

Orders

60 For the above reasons, the Tribunal makes the following orders:

1. The application for review relating to DR 214 of 2006 is dismissed.

2. The decision of the respondent to refuse planning consent for an overheight boundary fence of masonry construction

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along portion of the southern boundary of Lot 2 (113B) Point Walter Road, Bicton is affirmed.
3. The application of review of DR 661 of 2005 is dismissed.

4. The Direction issued pursuant to s 10(3) of the Town Planning and Development Act 1928 (WA) dated 10 November 2005 is affirmed but modified as follows:

(a) The time period for compliance with the outstanding matters referred to in the Schedule to the Direction is extended to 90 days; and

(b) The Schedule is modified to read as follows:

"Item 1: The Development
The occupation of the dwelling house on the Land.
Item 2: The Land

Lot 2 (No 113B) Point Walter Road, Bicton.

Item 3: Particulars of Contravention

The Planning Approval for the Development dated 26 March 2004 is the third of four planning approvals given to the development of the Land.

Condition 1 of the Approval stated:

"All of the conditions of previous planning approvals apply unless otherwise varied by this approval".

Condition 10 stated:

"All conditions must be satisfied prior to occupancy of the dwelling".

The following conditions have not been satisfied:

1.A masonry fence approximately 1.8m high, plus 600mm glass blocks (or

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other suitable material to the satisfaction of the Manager Planning and Development Services), be constructed along thesouthern boundary of Lot 2, with the western extremity toalign with the existing masonry wall on Lot 1 and theeasternextremity toalign withthe eastern side of the Kitchen window on Lot 2, the top of the coursing of the masonry wall to match the height of theexisting masonry wall on Lot 1.
2. The fence between the fencing mentioned in Condition 1 above and the front of the dwelling is to be a sufficient fence as defined by the Council local law and no higher than 1.8 metres in height measured from the higher ground level.

3. All openings to the lower Kitchen, Games Room (western and southern), Dining/Lounge (west), Balcony, Patio, Pool Area, Sun Deck and other raised areas to be screened to comply with the Residential Design Codes and Element 8 of the R Codes."

5. The development is to be altered to comply with the modifieddirection, within 90 days of 20 December 2006, that is, by 19 March 2007.

6. The question of costs is reserved. If either party wishes to make application for costs, the following directions shall be complied with:

(a) any application for costs and supporting submissions shall be filed and served on the other party by 8 January 2007;

(b) the responding party shall file and provide to the other party its submission in reply by 22 January 2007;

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(c) the moving party shall file any submissions in reply by 29 January 2007; and

(d) unless either party specifically requests an oral hearing on costs, the question of costs is to be decided entirely on the written submissions.

7. Except for the initial discussions held at the commencement of the final hearing for DR 661 of 2005 on 22 September 2006, on whether the proceedings would be heard in private, the transcript of evidence in these proceedings is to be published.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER