Lloyd Franklin and City of Fremantle
[2005] WASAT 72
•22 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT
ACT 1928 (WA)
CITATION: LLOYD FRANKLIN and CITY OF FREMANTLE [2005] WASAT 72
MEMBER: MR P McNAB (MEMBER)
HEARD: 4 MARCH 2005
DELIVERED : 22 APRIL 2005
FILE NO/S: RD 262 of 2004
BETWEEN: LLOYD FRANKLIN
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Unauthorised development of land Retrospective consent sought Storage area converted to studio and bedroom by previous owner Low ceiling height Relevant health and amenity standards Application of Building Code of Australia Expert judgment method used Status of statutory declaration made by previous owner Whether similar to a condition of use Whether binds current owner Effluxion of time since development Precedent created if consent now granted Words and phrases: "habitable room", "studio"
Legislation:
State Administrative Tribunal Act 2004 (WA) s 167
Town Planning and Development Act 1928 (WA)
Result:
Application allowed and decision of respondent set aside with a direction to the respondent to issue a retrospective consent to the development upon such conditions (if any) as are reasonable and not inconsistent with the reasons for decision of the Tribunal.
Category: B
Representation:
Counsel:
Applicant: Mr M Willicombe (by leave)
Respondent: Mr D Mitchell
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, WA Town Planning Appeal Tribunal, 21 October 1988)
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 282
Hine v Western Australian Planning Commission [2004] WATPAT 70
Hoffer Reid & Partners v Sydney City Council [LEN 822] (unreported, Land and Environment Court of NSW, 16 November 1982)
Pierce v Western Australian Planning Commission [2003] WATPAT 133
Tilbrook v Western Australian Planning Commission [2004] WATPAT 100
Zito v Town of Cottesloe [2004] WATPAT 77
Case(s) also cited:
Nil
MR P McNAB (MEMBER):
REASONS FOR DECISION
Introduction
Mr Lloyd Franklin (the "applicant") seeks a review of a decision by the City of Fremantle (the "respondent") not to grant retrospective consent to certain development, namely the conversion of a small storeroom/studio space (comprising some 27m2 in total) ("the subject land") into a bedroom or other habitable premises (the "development"). The subject land is an existing room, as described above, now fitted out as a bedroom and located under No 28A Lilly Street, Fremantle (ie, strata lot 4/unit 2). It is proposed to use, or to authorise the existing use of, the subject land as a bedroom, in connection with No 28 Lilly Street, Fremantle (ie, adjoining strata lot 3/unit 1), of which land the subject land forms part. That is the nature of the development.
There is no internal access to the subject land from strata lot 3, and it is common ground between the parties that the subject land was originally designed to be used other than for habitable purposes.
The applicant became the registered proprietor of the land (including the subject land) in 1997. He sought retrospective approval for the development from the respondent on 6 August 2004. The respondent, in the exercise of its discretion, refused consent on 14 September 2004 (the "decision") for three main reasons.
In summary, these reasons are:
(1)the subject land was never intended to be used for "permanent habitable purposes", which is evidenced by a statutory declaration to that effect from a previous owner;
(2)the "amenity of the overall strata property" would be adversely affected; and
(3)the development did not meet "the minimum design requirements" of the Building Code of Australia (the "BCA") applicable as regards "habitable premises".
The applicant sought review of the decision by way of an appeal to the Town Planning Appeal Tribunal (the "former Tribunal") on 3 November 2004 pursuant to the Town Planning and Development Act 1928 (WA) as then in force. On 1 January 2005, the former Tribunal ceased to exist and this Tribunal took over the appeal as a review under the State Administrative Tribunal Act 2004 (WA): see s 167 of that Act.
Issues
The applicant disputes the relevance of the respondent's first reason for refusal of his application, as he submits that the alleged limitation arising out of a previous owner's statutory declaration does not bind him. As to the other reasons put forward by the respondent, the applicant says, in summary, that if the BCA standards are relevant, then they are or can be met, and the development otherwise provides a good standard of amenity.
The issue for the Tribunal is whether, on the material before the Tribunal, the correct and preferable decision should be to retrospectively permit the subject land to be used as habitable premises, which is its present use.
Regulatory Framework
Under cl 14 of the respondent's Town Planning Scheme No 3 ("TPS 3") "consent is required for any development within the Scheme Area". It is common ground that the matter before the Tribunal is a "development" within the meaning of TPS 3 and therefore required the respondent's consent. (See also cl 21 [definition of "development"] and cl 12 on the obligation to obtain consent.)
Clause 14(i) of TPS 3 expressly permits the retrospective grant of that consent which, as has already been mentioned, has been refused and forms the basis for the application for review by this Tribunal. (Clause 14(i) appears to have been inserted into TPS 3 in 2002.)
Under TPS 3, the subject land is zoned "Residence Private" with a residential density code of R25 see: cl 27, cl 28 and cl 53. The zoning of the land and the designated residential density code are not relevant to this review.
However, as will appear with more particularity below, the BCA standards for health and amenity, particularly as they relate to room heights and related matters, are said by the respondent to be relevant and appropriate. Of major relevance is the requirement for habitable rooms to be not less than 2.4 metres, and, as will appear below, the subject land has a ceiling height of approximately 2.05 metres.
More detailed reference to the BCA standards is made later in these reasons.
History of the Subject Land
In 1990 the respondent, by letter dated 26 April 1990, gave its consent under the town planning scheme then in force "for the use of the [then] existing residential buildings as two grouped dwellings". The existing residential buildings were then comprised of an "existing house and [an] existing additional residence".
In late 1994 continuing into 1995, No 28 Lilly Street was further developed by the conversion of the property into three strata lots.
It appears that in order to obtain the respondent's approval to the strata title development, the then owner (Mr Melidonis) furnished to the respondent a statutory declaration dated 16 March 1995 the relevant part of which reads: "the downstairs studio area … will not be used for permanent habitation" (emphasis added).
As has been mentioned, there is no internal access, and access to the subject land from strata lot 3 is by way of a short walk on an internal garden path.
Thus, the subject land is part of a complex comprised of "three brick and tile residential units each having two levels … having an address of 28 Lilly Street, South Fremantle" (see strata plan No 19501, registered 2 August 1995).
At the time of the approval of the strata plan, the respondent as "local authority" certified that "the building … is of sufficient standard and suitable to be divided into [strata] lots" (see strata plan No 19501 endorsed certificate from the local authority dated 17 March 1995).
At some point – it is unclear precisely when – the subject land has been converted by a previous owner to a "studio" including a bath/shower and toilet with floor to ceiling windows installed for both the (now) bedroom and the bathroom parts of the "studio".
The bathroom part of the studio is not separated by a door, although the applicant, by reference to his plan for the development submitted to the respondent, proposes to do that. The evidence suggests that this whole development took place prior to the strata conversion over the period 1994 – 1995, although the bathroom part of the development may possibly have been added post the strata process. On balance, however, it seems likely that as at March 1995 the "studio" area was substantially in the state that it is now in.
No consent from the respondent had or has ever been sought or given to this "studio" development. This is a matter that will be considered further below.
On 25 February 1997, the applicant became the registered proprietor of strata lot 3, being the land described in certificate of title vol 2050 fol 701.
Respondent's case
The respondent has refused consent for the following detailed reasons given to the applicant:
"1.In 1995, during conversion and strata subdivision of the original residence into two dwellings, the [respondent] received and accepted a Statutory Declaration signed by the owner/applicant, which confirmed that the downstairs area [ie, the subject land] … would not be used for permanent habitable purposes.
2.The City has no record of a formal planning application or consent for use of the downstairs area as studio accommodation. The area should therefore be restored to its original intended use as a storage area. …
3.The proposed development is contrary to the orderly and proper planning and the preservation of the amenity of the overall strata property in that it would create a detached habitable room, with no functional/integral linkage to the parent residence and which does not meet the minimum design requirements of the BCA for a habitable room, whereby it is considered to represent a substandard form of design, development and usage."
As is well known, the BCA is produced and maintained by the Australian Building Codes Board "on behalf of the Australian Government and each State and Territory Government" as "a uniform set of technical provisions for the design and construction of buildings and other structures throughout Australia … ." (BCA, 2005 ed, Introduction at 7).
It is important to emphasise that the BCA does not directly apply of its own regulatory force to the current matter. Rather, the BCA has been used by the respondent to set an appropriate standard of the level of health and amenity relevant to the development of the subject land. This issue is discussed in more detail below.
The parties are agreed that the relevant clauses of the BCA are as follows (emphasis added):
"[O 2.4.2] Room heights [objective]
The Objective is to safeguard the occupants from injury or loss of amenity caused by inadequate height of a room or space."
"[F 2.4.2] Room heights [functional statement]
A building is to be constructed to provide height in a room or space suitable for the intended use."
"[O 2.4.4] Light [objective]
The Objective is to safeguard occupants from injury, illness or loss of amenity due to
(a)isolation from natural light; and
(b)lack of adequate artificial lighting."
"[F 2.4.4] Light [functional statement]
(a)a habitable room within a building is to be provided with openings to admit adequate natural light consistent with its function or use; and
(b)a space within a building used by occupants is to be provided with artificial lighting consistent with its function or use which, when activated in the absence of suitable natural light, will enable safe movement."
"[O 2.4.5] Ventilation [objective]
The Objective is to safeguard occupants from illness or loss of amenity due to lack of air freshness."
"[F 2.4.5] Ventilation [functional statement]
A space used by occupants within a building is to be provided with adequate ventilation consistent with its function or use."
"[O 2.4.6] Sound insulation [objective]
The Objective is to safeguard occupants from illness or loss of amenity as a result of undue sound being transmitted between adjoining dwellings."
"[F 2.4.6] Sound insulation [functional statement]
A building element which separates dwellings is to be constructed to prevent undue sound transmission between those dwellings."
"PART 3.8.2 ROOM HEIGHTS
APPROPRIATE PERFORMANCE REQUIREMENTS:
Where an alternative ceiling height is proposed as an Alternative Solution to that described in Part 3.8.2, that proposal must comply with
(a)Performance Requirement P2.4.2; and
(b)the relevant Performance Requirements determined in accordance with 1.0.10."
"[3.8.2.1] Application
Compliance with this Part satisfies Performance Requirement P2.4.2 for room heights."
"[3.8.2.2] Ceiling heights
Ceiling heights … must be not less than
(a) in a habitable room excluding a kitchen 2.4 m; and
…
(d)in a bathroom, shower room, laundry, sanitary compartment, airlock, pantry, storeroom, garage, car parking area or the like 2.1 m; and
(e)in an attic room, room with a sloping ceiling or projection below ceiling line or a nonhabitable room or similar space a height that does not unduly interfere with the proper functioning of the room or space; … "
"[1.0.8] Alternative Solutions
(a)An Alternative Solution must be assessed according to one or more of the Assessment Methods.
(b)An Alternative Solution will only comply with the BCA if the Assessment Methods used to determine compliance with the Performance Requirements have been satisfied.
(c)The Performance Requirements relevant to an Alternative Solution must be determined in accordance with 1.0.10."
"[1.0.9] Assessment Methods
The following Assessment Methods, or any combination of them, can be used to determine that a Building Solution complies with the Performance Requirements:
(a)Evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision as described in 1.2.2.
(b) Verification Methods such as
(i) the Verification Methods in the BCA; or
(ii)such other Verification Methods as the appropriate authority accepts for determining compliance with the Performance Requirements.
(c) Comparison with the Deemed-to-Satisfy Provisions.
(d) Expert Judgement."
The parties are also agreed that the effect of the BCA in these circumstances is to prescribe certain criteria (such as ceiling height) which may also be alternatively satisfied by assessment by "expert judgement".
Before considering these provisions of the BCA, it is convenient to deal first with the issue of the statutory declaration and the relevance of the fact that no consent was ever given to the development of the subject land as a "studio".
The Statutory Declaration
The statutory declaration dated 16 March 1995, at best, evidences an intention held by a previous owner, some 10 years ago, not to use the "studio area" for "permanent habitation". Putting to one side whether any ambiguity flows from the use of the word "permanent" (a point emphasised by the applicant), there is in any event "no basis for concluding that the obligation to give effect to the statement of intention was an obligation binding … a person other than the party whose intention was stated.": Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 282, 289 (for earlier proceedings see: (2001) 116 LGERA 138 and (2002) 55 NSWLR 446 (CA)).
Moreover, there is no evidence that this intention was ever translated into a condition, assuming that that were possible, as is contemplated by TPS 3 cl 12(c) (the "General Obligations" clause of the scheme referring to compliance with "conditions imposed upon the grant of any approval, consent or licence … "). And, to the extent (if any) that a development application plan – and none has been produced to the Tribunal specifically relating to the strata development – showed a storeroom (and not a "studio"), this limitation was effectively negated by the issuing by the respondent of the strata survey certificate, referred to above.
In short, there is nothing to suggest that consideration was ever given by the respondent regarding an appropriate way in which the "intention" might be clarified and enforced.
No Consent Given to "Studio"
As has already been canvassed, the respondent never granted its consent to the development of the subject land as a "studio", (or to "studio accommodation" as the respondent refers to the development in its reasons, set out above).
A number of observations may be made about this issue.
First, there is no evidence that the current owner (ie, the applicant) was a party to the creation of a "studio area" (as the former owner has referred to it in 1995). On the other hand, the respondent publicly certified, the day after the statutory declaration was made, that the strata buildings (see above) were "of a sufficient standard". Presumably, the "studio area" was part of the inspection, examination or consideration that led to that certificate, and to approval generally.
Secondly, the creation or acknowledgement of a quite separate "studio area", probably already complete with extensive windows, and a bathroom and toilet, carried with it some inherent ambiguity. After all, a "studio" has been "traditionally" regarded as "an artist's workshop but [the term is] now used for a one-room apartment or flat.": Bretts P An Illustrated Dictionary of Building 2nd ed Butterworth–Heinemann, Oxford 1997 at 215. And cf Hoffer Reid & Partners v Sydney City Council [LEN 822] (unreported, Land and Environment Court of NSW, 16 November 1982): where McClelland J observed: "as a matter of the ordinary use of language the term art studio/apartment denotes residential use".
In any event, the effluxion of time must be relevant in this context. This is best demonstrated by the respondent's former policy DBM 8 ("Enforcement [of] Illegal Structures Policy"). That policy, which has apparently expired since TPS 3 was amended in 2002 to permit retrospective approvals (see the "Objective" clause, and the "Policy Review Date" clause in DBM 8), suggests that for "minor" structures, no action will be taken if the structure is sound, and if such structures are "over 12 years old": cl 1.1.2. For "major" structures" (which are defined to include "studios") there is no similar 12yearold rule, but some discretion is given to the respondent to take "[n]o further action" if "the structure is sound", "conform[s] to Council policy" and there are "no objections from adjoining neighbours": cl 1.2.
There is no suggestion that the subject land is not structurally sound. There is no evidence of neighbours objecting, although one neighbour (possibly acting also for another neighbour), as it turns out the author of the 1995 statutory declaration referred to above (and possibly the developer – certainly a user – of the "studio area", as the previous owner), raised, in 2004, a concern in writing with the respondent that the "habitation" of what he now calls the "storage area" might "breach Council regulations [and] may invalidate our insurance".
Although the letter expressing that concern was tendered by the respondent, no evidence or satisfactory explanation has been offered by either party for Mr Melidonis's apparent change of heart; however his accompanying reference in his letter to "future tenants" might indicate a concern for the subletting of the subject land or, alternatively, he might have been concerned in relation to the strata management of No 28 Lilly Street, Fremantle. It is unnecessary, however, to resolve this matter.
Conclusions on the Statutory Declaration and No Consent Given to "Studio"
The Tribunal is far from persuaded that these considerations (ie, those concerning the unauthorised "studio" development and the previous owner's past intentions, and his subsequent concerns), while they are clearly relevant should, in the circumstances of this application and having regard to the considerations just discussed, carry the weight that the respondent appears to have ascribed to them to found a refusal to give consent. By themselves, in the Tribunal's view, they would not be sufficient to warrant a refusal.
The BCA Standards
Thus, the substance of the review turns upon the application and interpretation of the BCA, and this is reflected in the fact that this issue comprised the bulk of the Tribunal's hearing time and argument.
The applicant tendered a statement of Mr Ross Minett who is an experienced town planner and consultant. It was accepted by the respondent that Mr Minett was an expert witness and no application was made to crossexamine him upon his statement. The respondent was content for the Tribunal to consider Mr Minett's view against the contrary generalised expert opinion expressed by its own town planners, as is reflected in the respondent's position.
In contrast, Mr Minett's opinion was expressly and specifically directed to the "expert judgement method" contained within the BCA (see above). The respondent accepted, correctly in the Tribunal's view, that his expertise would mean that Mr Minett could be regarded as a person capable of providing such "expert judgement".
Mr Minett's opinion was as follows:
"While in planning terms the assessment of amenity (reference [the respondent's] policies and R Codes) does not refer to BCA design requirements, because [the reasons] for refusal refers to them it is appropriate to respond in kind.
In this case the owner would request that the expert judgment method be used to determine the design performance requirements for an amenity assessment ([refer] BCA cl 1.09(d) Assessment Methods).
On this basis [I] would make the case that the room in question meets the objectives of health and amenity ([refer] BCA cl 2.4) in the following ways.
Clause 2.4.2 Room heights: The room, at 2.05m, is sufficient in height 'to safeguard the occupants from injury or loss of amenity caused by inadequate height'[;]
Clause [sic] 2.4.3 Light: The room is well lit by full height windows and door to the garden, and has adequate artificial light for night-time, therefore is sufficient 'to safeguard occupants from injury, illness or loss of amenity due to isolation from natural light and lack of adequate artificial light';
Clause 2.4.5 Ventilation: The room has good ventilation by means of large opening windows and door, and is therefore sufficient 'to safeguard occupants from illness or loss of amenity due to lack of air freshness';
Clause 2.4.6 Sound Insulation: The room is separated from the adjoining residence by a solid concrete wall and slab creating a good standard of sound separation.
In terms of other amenity the en suite toilet, shower and basin provide a good standard of amenity and functionality for the room to be used as a bedroom.
The issue of being 'detached' from the main part of the residence does not arise in the BCA as any consideration. The link to the main residence by short garden path, in [my] opinion, is entirely functional and not uncommon in this climate. Perhaps the room will most likely not be used in the middle of winter but this is considered by [me] of no concern in terms of amenity on planning grounds.
In this case, in [my] opinion, the room does meet a sufficient minimum standard of amenity 'to safeguard' the occupants in terms of amenity, both on planning grounds, and with reference to the BCA design performance requirements."
The applicant also tendered, without objection, a series of recent colour photographs of the subject land being used as a bedroom in daylight. In the Tribunal's view those photographs are entirely consistent with, if not supportive of, Mr Minett's observations reproduced above.
Conclusions on the Applicability of the BCA
If the Tribunal accepts Mr Minett's expert opinion, the BCA standards, assuming that they were relevant and capable of application, would be met on the criterion advanced by the respondent itself, namely by a substituted standard based upon "expert judgement".
In this matter, the Tribunal does accept that the BCA standards referred to, particularly with their express flexibility based on the "expert judgement" method, are a suitable measure or guideline for a discretionary decision by a regulatory authority, being a decision essentially based on health and amenity grounds. In particular, in the Tribunal's view such standards reasonably and rationally relate to the activity sought to be assessed and regulated.
A fortiori, this would also be the case for a review body – such as this Tribunal – standing in the shoes of the original decision-maker.
In the Tribunal's view there is no cogent reason not to accept the applicant's expert evidence both as to the BCA criteria and amenity generally. In particular, it has not been relevantly challenged; it appears to be sufficiently detailed; it is based upon inspection; it is internally consistent and it is otherwise coherent by reference to the BCA criteria set out above. It is also consistent with the other evidence available to the Tribunal.
Thus, on the standards largely set by the respondent itself (and adopted by this Tribunal) in the circumstances detailed above, the correct and preferable decision is to retrospectively permit the subject land to be used as habitable premises. And, even if this approach had not been adopted, and a more generalised discretion were applicable, there would be much to be said in the circumstances for the grant of retrospective approval. See also the discussion of what constitutes a "habitable room" in Zito v Town of Cottesloe [2004] WATPAT 77; (but cf the commentary at [F3.1.1] on the "Height of rooms and other spaces" in Building Regulation Australia vol 1 [Butterworths Loose Leaf Service]).
As to the argument advanced by the respondent that an "undesirable precedent" would be created by any approval, it is sufficient to refer to Aspen Pty Ltd v State Planning Commission (unreported, WA Town Planning Appeal Tribunal, 21 October 1988) where the then Chair Mr RJM Anderson QC said (at 10):
"The precedent argument is not usually treated by this tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of developments should not be a reason why the appeal should be dismissed … ."
This principle has been cited and followed by the former Tribunal on a number of recent occasions: see, eg, Tilbrook v Western Australian Planning Commission [2004] WATPAT 100; Pierce v Western Australian Planning Commission [2003] WATPAT 133; Hine v Western Australian Planning Commission [2004] WATPAT 70.
Order
For these reasons, the application for review should be allowed. The order the Tribunal proposes to make will have the effect of directing the respondent to issue retrospective consent upon such conditions (if any) as are reasonable and as are consistent with these reasons. The Tribunal makes the following orders:
(1) The application for review is allowed.
(2)The decision under review is set aside and the matter is sent back to the decision-maker for reconsideration in accordance with the following direction: the respondent is to issue a retrospective consent to the development upon such conditions (if any) as are reasonable and not inconsistent with the reasons for decision of the Tribunal.
I certify that this and the preceding 14 pages comprise the reasons for decision of the Tribunal.
__________________________________
Mr P McNab - Member
0
2
2