LESEUR INVESTMENTS PTY LTD and CITY OF MELVILLE
[2005] WASAT 90 (S)
•29 APRIL 2005
LESEUR INVESTMENTS PTY LTD and CITY OF MELVILLE [2005] WASAT 90 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 90 (S) | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | RD:353/2005 | 20 MAY 2005 & 30 MAY 2005 | |
| Coram: | MS B MOHARICH (MEMBER) | 29/04/05 | |
| 3/06/05 | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The respondent to pay the costs of the applicant in the amount of $1 500. The conditions to be imposed in relation to the two development approvals as listed. | ||
| B | |||
| PDF Version |
| Parties: | LESEUR INVESTMENTS PTY LTD CITY OF MELVILLE |
Catchwords: | Costs Whether to impose Conduct of respondent Conditions to be imposed |
Legislation: | Heritage of Western Australia Act 1990 (WA), s 29(1) Legal Practitioners Act 2003 (WA), s 123, s 124 State Administrative Tribunal Act 2004 (WA), s 21(5), s 24, s 87, s 89 State Administrative Tribunal Rules 2004 (WA), r 12, r 43 |
Case References: | Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 CITATION : LESEUR INVESTMENTS PTY LTD and CITY OF MELVILLE [2005] WASAT 90 (S) MEMBER : MS B MOHARICH (MEMBER) HEARD : 20 MAY 2005 & 30 MAY 2005 DELIVERED : 29 APRIL 2005 SUPPLEMENTARY
DECISION : 3 JUNE 2005 FILE NO/S : RD 353 of 2005 BETWEEN : LESEUR INVESTMENTS PTY LTD
- Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Costs - Whether to impose - Conduct of respondent - Conditions to be imposed
Legislation:
Heritage of Western Australia Act 1990 (WA), s 29(1)
Legal Practitioners Act2003 (WA), s 123, s 124
State Administrative Tribunal Act 2004 (WA),s 21(5), s 24, s 87, s 89
(Page 2)
State Administrative Tribunal Rules2004 (WA), r 12, r 43
Result:
The respondent to pay the costs of the applicant, in the amount of $1 500.
The conditions to be imposed in relation to the two development approvals as listed.
Category: B
Representation:
Counsel:
Applicant : Mr G Harden-Jones
Respondent : Mr I Hocking
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90
Case(s) also cited:
Nil
(Page 3)
MS B MOHARICH (MEMBER):
REASONS FOR DECISION
1 The applicant in this matter made application for review of the respondent’s refusal to approve two development applications, for the development of a three-level single residence ("residence"), and a further grouped dwelling unit ("unit") in the grounds of Duncraig House, at 56 Duncraig Road, Applecross.
2 The application for review was heard and determined by a decision published by the Tribunal on 29 April 2005 in Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90. By that decision the application for review was allowed and approval was granted for both developments, subject to conditions to be, in the first instance, agreed by the parties, and the matter listed for 20 May 2005 in the event that agreement could not be reached. Agreement was not reached on all conditions for both development approvals, and therefore the imposition of conditions is to be dealt with by the Tribunal.
Conditions
3 Prior to the hearing in relation to conditions, the respondent had usefully provided a schedule of proposed conditions to the applicant and the Tribunal. At the hearing, the parties went through each proposed condition in turn, and considered whether the condition was appropriately worded, and whether each condition was reasonable and relevant. The result of this process was that all but two conditions in relation to each of the planning approvals was in contention.
4 The first is proposed condition 1 of both the approval for the residence and the unit:
"Any roof mounted or free standing plant or equipment such as plumbing pipes are to be located and/or screened so as not to be visible from Duncraig Road and the river foreshore escarpment to the satisfaction of the Manager Planning and Development Services."
5 The applicant was concerned that this condition did not reflect the condition imposed in relation to the previous approval for the renovations of Duncraig House itself, which required only that plant and equipment was not visible from surrounding streets.
(Page 4)
6 Mr Weymes, on behalf of the respondent, contended that the view of the site from the river was important, particularly because of its prominent location. The fact that condition 1 is worded differently from conditions on other approvals should not be a reason for refusing its imposition in this case.
7 I agree with Mr Weymes’ submission in this regard, and intend to impose the condition. I will however remove the requirement for the condition to be "to the satisfaction of the Manager Planning and Development Services" – the condition is clear on its face, and does not require any qualitative judgment as to whether it has been complied with.
8 The second condition in contention is condition 6 in relation to the residence, and condition 4 in relation to the unit, and is in the following terms:
"Colour, materials and finishes to be in accordance with a schedule approved by the Director Development and Neighbourhood Amenity after consultation with the Heritage Council of Western Australia, prior to the issue of a Building Licence."
9 The applicant is concerned that the requirements of the respondent may differ from those imposed by the Heritage Council pursuant to the Heritage Agreement. The Conservation Plan, which is incorporated by reference in to the Heritage Agreement makes reference to the materials to be used:
"Any future building elements should respect the form, scale and materials of the significant buildings with a preference for good contemporary design to complement the heritage building.
Policy 46: Any new development should respect the form, scale and materials of the existing significant building without directly copying it."
10 The Heritage Agreement in cl 3.1(b)(1) states that development must not be carried out except as approved in advance in writing by the Council. Section 29(1) of the Heritage of Western Australia Act 1990 (WA) provides that a Heritage Agreement is a contract binding on the Crown, and enforceable against the owner of the land.
11 It should be noted that neither the Conservation Plan, the Heritage Agreement, nor the conditions imposed by the Heritage Council prescribe
(Page 5)
- the materials to be used in any greater detail than that described above. It would therefore be useful for a condition which sets out these details to give some certainty in this regard, without creating a potential conflict between the respondent and the Heritage Council. The following condition is therefore imposed:
"A schedule of colours, materials and finishes is to be prepared by the applicant and approved by the Heritage Council as complying with the Heritage Agreement and Conservation Plan.
A copy of the approved Schedule is to be lodged with the respondent prior to commencement of construction.
Development is to be undertaken in accordance with the Schedule."
12 Prior to 20 May 2005, the applicant made application for an order that the respondent pay its costs.
13 The default position under the State Administrative Tribunal Act 2004,(WA) ("the SAT Act") is that each party bears its own costs of the proceeding: s 87(1). However, power is given to the Tribunal to make an order for costs against a party in s 87(2). Where costs are to be awarded, the Tribunal may also make an order for compensation in accordance with s 87(3):
"The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make any order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought."
14 It seems clear from s 87(3) that costs can be awarded not only in relation to expenses incurred in the proceeding, but also in the matter which gave rise to the proceeding.
15 Section 87(4) provides guidance as to the issues to which the Tribunal is to have regard in considering whether costs should be awarded. Section 87(4)(b) relevantly requires the Tribunal to consider "whether the party (being the decision-maker) genuinely attempted to make a decision on its merits".
(Page 6)
16 The applicant contends that the respondent did not endeavour to make a decision on the merits of the application. The reasons for refusal were:
"A) The application for a three (3) level single residence (reference DA-2005-51) located on the south-west corner of a newly created lot 1 (56) Duncraig Road, Applecross, and for one (1) additional grouped dwelling (reference DA-2005-52) located on the north-east section of the Duncraig House building on lot 14592 (No 56) Duncraig Road, Applecross, be rejected because the buildings are considered to affect the amenity and streetscape of the area, and mar the architectural integrity of Duncraig House, and are considered to be contrary to the orderly and proper planning in the this Heathcote Heritage Precinct.
B) All local politicians be advised of the Council’s strongest objection to the Western Australian Planning Commission decision to approve an undersized lot (80m² less than the minimum lot size, a variation of eleven and a half (11.5) per cent) contrary to the order and proper planning provision of the Community Planning Scheme Number Five and that the Council seeks the assistance of all politicians to amend the Government policy on ignoring the density provision of local authority town planning schemes."
17 The reasons for refusal are somewhat unhelpful, as they fail to show why it is that the buildings affect the amenity and streetscape of the area, and mar the integrity of Duncraig House. The SAT Actimposes an obligation on a decision-maker to explain the reasons for its decision. Pursuant to s 21(1), a person who has a right to make an application for review may request the decision-maker provide the person with "a written statement of the reasons for the decision". Once an application for review is on foot, the decision-maker is to provide a copy of its reasons for the decision to the Tribunal, and to the applicant pursuant to s 24(a) of the SAT Act and Rule 12 of the State Administrative Tribunal Rules 2004 (WA) ("the SAT Rules). Section 21(5) sets out what a written statement of a decision-maker’s reasons for decision must contain:
"Subject to section 23, the decision-maker’s written statement has to contain –
(Page 7)
- (a) the reasons for the decision; and
(b) any findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based."
18 While the applicant makes no claim regarding the respondent’s compliance with the SAT Act and the SAT Rules, it may be that if reasons had been provided in the form set out in s 21(5), there would be a better understanding of the matters considered by the respondent in determining the application in the first instance.
19 At the hearing, the respondent did not call as a witness either a town planning officer, nor an officer from the Heritage Council. Mr Hocking, who both represented the respondent, and gave evidence, gave a number of opinions about the proposed development, which can be summarised as follows:
(a) that further research should be undertaken as to the value of the Duncraig House site to the Aboriginal community;
(b) that the proposed cutting of the site for an undercroft garage at Duncraig House would cause a physical separation of the topography. (Note however, that the redevelopment of Duncraig House itself was not before the Tribunal);
(c) that subdivision of the lot for the residence should not have been approved by the Western Australian Planning Commission.
(d) that the unit and the residence will create two contemporary "book ends" to Duncraig House. (However, Mr Hocking went on to provide evidence that he thought the unit was appropriate).
20 It is clear that the respondent has a broad discretion to be exercised under its Community Planning Scheme No 5 ("CPS5"), in determining applications for development approval, particularly in relation to those subjective, qualitative matters such as amenity, design and streetscape.
21 At the hearing in relation to costs, Mr Weymes, a manager of the respondent appeared on the respondent’s behalf. He noted that the respondent had made its decision not on exclusively technical advice as to compliance with development standards, but based on subjective planning
(Page 8)
- considerations it is required to take into account pursuant to CPS5. These relevantly include, in cl 7.8:
"(b) the orderly and proper planning of land within the area;
(c) the existing and likely future amenity of the area;
…
(h) the nature of the proposed development in relation to development either existing or proposed on adjoining land…;
(i) the size, shape and character of the lot upon which the development is to be carried out, and the influence which this may have on the siting and nature of any new building;
(j) the design and external appearance, including the exterior cladding, of any new building and its effect upon the amenity of existing buildings and the area generally;
(k) any relevant submissions received on the application;
…
(n) any other planning considerations which the Council considers relevant."
23 In relation to the unit, it:
(a) forms the final unit of the Duncraig House redevelopment (previously approved by the respondent);
(b) complies with the requirements of CPS5 and the Residential Design Codes ("the Codes") in relation to setbacks;
(c) does not of itself lead to an exceedance of the R12.5 density coding;
(d) complies with the requirements of the Heritage Agreement between the applicant and the Heritage Council as to style and design; and
(Page 9)
- (e) the respondent’s own witness agreed that it was an appropriate development that replaces an existing "intrusive development" on the site.
24 It is difficult to see, therefore, how this application could have been considered on its merits. There is no detail given as to its non-compliance in the respondent’s reasons for decision, and on any assessment it would appear that this component of the site accords both with the development standards and planning objectives of CPS5.
25 In relation to the residence, both the respondent council, and Mr Hocking were of the view that the subdivision of the undersized lot should not have been approved, as it would lead to an overdevelopment on the site. It should be noted however, that:
(a) The Codes expressly address such a scenario in cl 3.1.3A(3)(ii), and therefore the lot is still capable of development, notwithstanding its smaller size;
(b) The Heritage Agreement contemplates development in this location; and
(c) The residence complies with the acceptable development standards of the Codes, except in relation to overlooking (where a condition to rectify the situation will be required).
26 It appears to me that the respondent failed to make a determination on the merits in relation to the single residence, by appearing to refuse the application largely because of the size of the lot, without looking at the detail of the design itself. This appears clear from the resolution made by the council, expressing its dissatisfaction with the Commission’s approval of the subdivision.
27 The applications do not offend the prescriptive, technical development standards of CPS5 and the Codes. In relation to those subjective or qualitative elements, CPS5 provides no guidance as to appropriate forms of development in this heritage area, and at the hearing, the respondent’s witness was more concerned about works approved under previous applications which were not before the Tribunal. In terms of the qualitative elements of the proposed design, the Heritage Council had given their approval.
(Page 10)
28 For these reasons, I am of the view that the respondent failed to genuinely attempt to make the decision on its merits, and therefore costs should be awarded.
29 It should be noted that s 123 of the Legal Practitioners Act 2003 (WA) makes it an offence for a person to engage in legal practice unless that person is a certified legal practitioner. It is a defence in s 124(3) of that Act if the work engaged in was unpaid. Section 123(3) of that Act allows a person who is not a certified legal practitioner to appear for another person before a court where that appearance is expressly authorised by written law. Section 39(1) of the SAT Act provides that a person at a hearing in a proceeding at the Tribunal cannot be represented by a person other than a legal practitioner unless the representative falls within a category listed in s 39(1). Relevant in this case is s 39(1)(f), which provides an exception if "the regulations or the rules authorise it". Rule 63 of the SAT Rules allows an agent to represent a party in relation to reviews by the Tribunal under the Town Planning and Development Act 1928 (WA), Pt V.
30 But for this express exception in the SAT Rules, it is questionable whether the Tribunal would not have been able to make an order for costs for representation where that party’s representative was not a legal practitioner.
31 At the hearing of this matter, the applicant provided the Tribunal with a breakdown of its costs in preparing for the hearing. In accordance with s 89 of the SAT Act, the Tribunal can either fix costs, or have them assessed in accordance with Rule 43 of the SAT Rules.
32 In this matter, the quantum has been assessed at $1 500 being for the expenses in preparing the matter for hearing.
Orders
33 (1) The respondent to pay the costs of the applicant, in the amount of $1 500.
34 (2) The conditions to be imposed in relation to the two development approvals are provided below:
(Page 11)
- Three Level Single Residence
Heritage Council
1. Detailed drawings are to be prepared and submitted to the Heritage Council for consideration prior to application for a building license. The drawings should include the detailed resolution of the following issues to the satisfaction of the Heritage Council:
(a) the proposed garage and store areas at basement level showing the impact on Duncraig House; and
(b) the articulation of the south elevation of the new residence to the west of Duncraig House.
2. A Landscape Plan is to be prepared and submitted to the Heritage Council for consideration prior to application for a building licence.
Construction
3. The applicant is to submit a construction management plan prior to the issue of a building licence detailing how it is to manage:
(a) the delivery of materials and equipment to the site;
(b) the storage of materials and equipment;
(c) the parking arrangements for the contractors and subcontractors (no parking is permitted on Duncraig Road reserve and the carpark of the Heathcote Recreation area);
(d) compliance with the Environmental Protection (Noise) Regulations 1997 (WA); and
(e) any other matter likely to impact on the surrounding residents.
4. The applicant is to provide a suitable receptacle for the containment of windblown rubbish prior to commencement of any construction. The receptacle (generally a wire mesh cage) should:
(Page 12)
- (a) have maximum openings of 100 millimetres;
(b) have a base of 4 metres square;
(c) a height of 1 metre;
(d) a hinged lid; and
(e) should not be allowed to overfill.
- Design
5. Roofing materials must be of a non-reflective material (zincalume or white metal may only be permitted through special planning consent).
6. A schedule of colours, materials and finishes is to be prepared by the applicant and approved by the Heritage Council as complying with the Heritage Agreement and Conservation Plan.
7. A copy of the approved Schedule is to be lodged with the respondent prior to commencement of construction.
8. Development is to be undertaken in accordance with the Schedule.
9. Any roof mounted or free standing plant or equipment such as plumbing pipes are to be located and/or screened so as not be visible from Duncraig Road and the river foreshore escarpment.
Privacy and Overlooking
10. All northwest, northeast and northern overlooking windows and balconies being permanently screened to comply with element 8 of the Residential Design Codes, to the satisfaction of the Director, Development and Neighbourhood Amenity.
11. In order to comply with element 8 of the Residential Design Codes, the use of soft landscaping would not be acceptable unless the Director, Development and Neighbourhood Amenity is satisfied that:
(Page 13)
- (a) mature trees of considerable height are planted to provide an instant privacy protection for the affected adjoining owners; and
(b) the planting is in accordance with the approved Landscape Plan (referred to above).
- Fencing and Retaining Walls
12. No solid fencing is to be used to demarcate the boundary between, or in front of the 3 level single residence lot, and the Duncraig House grouped dwelling lot, on the Duncraig Road side of the site.
13. The western boundary fence of the 3 level single residence lot is to be 1.8 metres in height at any point along the dividing boundaries measured from the highest retained ground level. All fencing to be provided in accordance with the Dividing Fences Act 1961 (WA). Ground levels may not be changed other than approved as part of this approval.
14. The construction of retaining walls not to exceed the heights specified on the approved plans unless otherwise approved by Council. Details, signed by a practicing structural engineer must be submitted for approval at the time of submitting a Building Licence Application.
Vehicle Access and Crossovers
15. Maximum vehicle access gradient ratio of 1:5 being achieved.
16. The residence to be serviced by a vehicle crossing of no greater width than the lesser of 6 metres or 40 per cent of the width of the frontage of the lot.
17. The vehicle crossing is to be paved and constructed in accordance with the City of Melville’s specifications, to the satisfaction of the Manager, Planning and Development Services.
(Page 14)
- 18. Any realignment and resurfacing of the crossover is to be to the satisfaction of the Manager, Infrastructure Services.
19. Specific approval must be obtained to remove a street tree to permit the construction of a vehicle crossover, otherwise it should be assumed that street trees are to be retained. Any written approval for the removal of street trees is subject to the applicant paying all the costs and may entail removal and relocation/replacement costs.
- Services
20. The development is to be connected to the Water Corporation’s reticulated sewerage system.
Subdivision
21. Prior to the issue of a Building Licence, a Diagram of Survey being approved in accordance with the subdivision approval issued by the Western Australian Planning Commission on 16 November 2004.
Further Approvals
22. This is a Planning Approval only and does not obviate the responsibility of the applicant/owner to comply with all relevant building, health and engineering requirements of the Council or with any other requirements of Community Planning Scheme No 5
Dwelling Unit – Duncraig House Site
Heritage Council
1. Detailed drawings are to be prepared and submitted to the Heritage Council for consideration prior to application for a building license. The drawings should include the detailed resolution of the following issues to the satisfaction of the Heritage Council:
(a) the proposed link structure between Unit 3 and Unit 4 showing the impact on Duncraig House;
(b) the proposed garage and store areas at basement level showing the impact on Duncraig House; and
(Page 15)
- (c) the eaves height of Unit 4 – this should reference the eaves height of Duncraig House.
- 2. A Landscape Plan is to be prepared and submitted to the Heritage Council for consideration prior to application for a building licence.
- Construction
3. The applicant is to submit a construction management plan prior to the issue of a building licence detailing how it is to manage:
(a) the delivery of materials and equipment to the site;
(b) the storage of materials and equipment;
(c) the parking arrangements for the contractors and subcontractors (no parking is permitted on Duncraig Road reserve and the car park of the Heathcote Recreation area);
(d) compliance with the Environmental Protection (Noise) Regulations 1997 (WA); and
(e) Any other matter likely to impact on the surrounding residents.
4. The applicant is to provide a suitable receptacle for the containment of windblown rubbish prior to commencement of any construction. The receptacle (generally a wire mesh cage) should:
(a) have maximum openings of 100 millimetres;
(b) have a base of 4 metre square;
(c) a height of 1 metre;
(d) a hinged lid; and
(e) should not be allowed to overfill.
(Page 16)
- Design
5. Roofing materials must be of a non-reflective material (zincalume or white metal may only be permitted through special planning consent).
6. A schedule of colours, materials and finishes is to be prepared by the applicant and approved by the Heritage Council as complying with the Heritage Agreement and Conservation Plan.
7. A copy of the approved Schedule is to be lodged with the respondent prior to commencement of construction.
8. Development is to be undertaken in accordance with the Schedule.
9. Any roof mounted or free standing plant or equipment such as plumbing pipes are to be located and/or screened so as not be visible from Duncraig Road and the river foreshore escarpment.
Fencing and Retaining Walls
10. No solid fencing is to be used to demarcate the boundary between, or in front of the 3 level single residence lot, and the Duncraig House grouped dwelling lot, on the Duncraig Road side of the site.
11. The construction of retaining walls not to exceed the heights specified on the approved plans unless otherwise approved by Council. Details, signed by a practicing structural engineer must be submitted for approval at the time of submitting a Building Licence Application.
Vehicle Access and Crossovers
12. Maximum vehicle access gradient ratio of 1:5 being achieved.
13. The residence to be serviced by a vehicle crossing of no greater width than the lesser of 6 metres or 40 per cent of the width of the frontage of the lot.
(Page 17)
- 14. The vehicle crossing is to be paved and constructed in accordance with the City of Melville’s specifications, to the satisfaction of the Manager, Planning and Development Services.
15. Any realignment and resurfacing of the crossover is to be to the satisfaction of the Manager, Infrastructure Services.
16. Specific approval must be obtained to remove a street tree to permit the construction of a vehicle crossover, otherwise it should be assumed that street trees are to be retained. Any written approval for the removal of street trees is subject to the applicant paying all the costs and may entail removal and relocation/replacement costs.
- Services
17. The development is to be connected to the Water Corporation’s reticulated sewerage system.
Further Approvals
18. This is a Planning Approval only and does not obviate the responsibility of the applicant/owner to comply with all relevant building, health and engineering requirements of the Council or with any other requirements of Community Planning Scheme No 5.
- I certify that this and the preceding 16 pages comprise the reasons for decision of the Tribunal.
____________________________
B Moharich
Member
0
1
4