LOMMA HOMES and TOWN OF CAMBRIDGE
[2008] WASAT 249
•27 OCTOBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LOMMA HOMES and TOWN OF CAMBRIDGE [2008] WASAT 249
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 3 OCTOBER 2008
DELIVERED : 27 OCTOBER 2008
FILE NO/S: DR 254 of 2006
BETWEEN: LOMMA HOMES
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Planting of a tree or trees behind the street setback line on adjoining property - Protecting the privacy of adjoining neighbours - Substitute conditions
Legislation:
Nil
Result:
That conditions (c), (d) and (e), as detailed in reasons of 3 November 2006 and 27 February 2008, be set aside in favour of substitute conditions to ensure finalisation of this matter
Category: B
Representation:
Counsel:
Applicant: Mr P Lomma (Acting as Agent)
Respondent: Mr S Rodic (Acting as Agent)
Solicitors:
Applicant: Lomma Homes
Respondent: Town of Cambridge
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal considered a request by Lomma Homes to revoke those conditions imposed by the Tribunal in relation to the planting of a tree or trees behind the street setback line on the adjoining property at 27 Oban Road, City Beach. The adjoining property is immediately to the west of the subject land at 25 Oban Road, City Beach.
The request by Lomma Homes was considered at a hearing before the parties on 3 October 2008.
The Tribunal determined that conditions (c), (d) and (e), as detailed in its reasons of 3 November 2006 and 27 February 2008, be set aside in favour of substitute conditions to ensure finalisation of this matter.
Background
On 3 November 2006, the Tribunal determined the matter in accordance with conditions (a) to (f) below:
(a)That a permanent, fixed, non openable barrier to deny ease of access be fitted at the same height as the existing balcony wall to separate off the western 4.1 metre portion of the balcony.
(b)That a permanent fixed screen be fitted to the top of the western facing balcony wall along its full length to a total height (wall plus screen) of 1.2 metres only.
(c)That a single mature tree or trees be planted behind the street setback line of the neighbouring property to the west to minimise overlooking from the unenclosed northern portion of the balcony.
(d)That the costs associated with (c) be met by the applicant.
(e)That the number, type and positioning of the tree or trees in condition (c) be to the satisfaction of the respondent.
(f)That in the event of a disagreement between the parties, with respect to conditions (a) to (e), that the matter(s) be referred back to the Tribunal for final determination.
On 17 November 2007, Mr Paul Lomma for Lomma Homes advised on behalf of his clients, Greg and Diane Stevens, that the:
… parties involved are unable to come to an agreement with respect to Conditions a, b, c, d & e as set down in this Order and therefore, ask that the Tribunal grant us a full hearing prior to a final determination being made by the Tribunal.
A hearing was conducted on 27 February 2008 with both parties in attendance, as allowed for in [4(f)] above.
The Tribunal considered the arguments presented by Mr Lomma and heard of the respondent's clear understanding of the Tribunal's original conditions (a) to (e), as outlined in [4] above.
The Tribunal found no reason to alter conditions (a) to (e) in its original decision of 3 November 2006, and reaffirmed that decision on 27 February 2008.
On 28 August 2008, Mr Paul Lomma again wrote to the Tribunal and advised:
The order for this matter was made up of several parts. Items 1 (a) and 1 (b) have been met by ourselves. However we are unable to complete items 1 (c) (d) and (e) which all relate to the planting of a tree, by virtue of the fact that the Town of Cambridge has to date, not yet accurately specified a location for the tree to be planted, nor is able to provide us with a date of when they will provide such information.
We have made several attempts via phone and email to get an answer regarding the location, and are constantly met with apathy. We have even spoken on more than one occasion to the neighbour directly and yet still have no information regarding the tree. The neighbour is unwilling to give us any information and nor is the council in relation to the location of the tree.
We can not continue to wait indefinitely for the council and neighbour, to fulfil their obligations, which are supposed to be to their benefit, and request that the State Administrative Tribunal revoke these portions of the order, in light of the fact that the council has not been willing to provide the information after many months of us waiting.
We have not been able to complete our contractual obligations to our client regarding this matter, and as such there is a considerable sum of money outstanding which we can not collect till this matter is resolved.
We ask that the Tribunal revoke these portions of the order within the next ten days or as soon as practicable so that we can finally put the matter to rest and notify our clients that the matter is fully resolved.
The substance of Mr Lomma's letter of 28 August 2008 was considered by the Tribunal at a hearing on 3 October 2008.
Assessment of proposal
At the hearing on 3 October 2008, Mr Lomma affirmed the substance of his letter of 28 August 2008.
The views of Mr Rodic, who represented the respondent and who had visited the subject land with Mr Lomma at No 25 (Lot 141) Oban Road, City Beach the previous day (2 October 2008), include the following:
In regards to behind the street setback line, we basically couldn't find it; I guess a relative position which would help in any screening because the area behind the street setback line is largely screened from the garage, and when you sit or stand in Mr Papavassiliou's garden behind the front setback line, you can hardly even see the [1.2 metre] screen [on the subject land] so when we were out on site, at that time the only position where we thought where maybe a tree could go would be in front of the garage, which is really in the front setback line where a pool might be going in the future … but as a planner in terms of privacy, I can't see the benefit of a tree behind a front setback area. …
From the perspective of the Tribunal, its position remains on the matter of protecting the privacy of the adjoining neighbours (Mr and Mrs Papavassiliou) to the west at 27 Oban Road, City Beach as summarised in its reasons of 3 November 2006:
In the view of the Tribunal a measure of screening is required along the entire western face of the balcony wall to meet the intent of the R Codes, but not to the extent contemplated by the respondent. Also, some additional measures to improve privacy from the perspective of the neighbouring property are also required.
The measures to be taken were embodied in the conditions (a) to (e) outlined in [4] above with condition (f) included to resolve any disagreement between the parties.
However, the Tribunal would acknowledge that conditions (a) and (b) were primary conditions, and that conditions (c), (d) and (e) were of a secondary or complementary nature to conditions (a) and (b).
What is clear though is that it is almost two years since reasons were given, and that the matter must now be finally resolved.
The Tribunal has no intention of considering this matter again, and this intent is reflected in the following orders:
Orders
For the foregoing reasons the Tribunal orders:
1.That conditions (c), (d) and (e), as detailed in the Tribunal's reasons of 3 November 2006 and 27 February 2008, are hereby set aside in favour of the substitute conditions outlined in 2 below.
2.That the following substitute conditions now apply:
(a)That the respondent immediately advise the owner(s) of 27 Oban Road, City Beach that they can, on or before close of business on Friday 28 November 2008, choose and purchase a tree or trees to be planted on their property behind the street setback line to a total (maximum) amount of $2,500.
(b)That, subject to the production of a receipt, or other proof of purchase, by close of business on Friday 28 November 2008, the applicant is to reimburse the owner(s) of 27 Oban Road, City Beach within 14 days of purchase an amount up to a total (maximum) amount of $2,500.
(c)That in the event that the owner(s) of 27 Oban Road, City Beach do not choose to purchase or purchase a tree or trees on or before close of business on Friday 28 November 2008, then condition 2(b) above is automatically null and void and shall cease to have further effect.
3.That these orders represent the Tribunal's last and final determination in this matter.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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