LOMMA HOMES and TOWN OF CAMBRIDGE

[2008] WASAT 61

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   LOMMA HOMES and TOWN OF CAMBRIDGE [2008] WASAT 61

MEMBER:   MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD:   27 FEBRUARY 2008

DELIVERED          :   27 FEBRUARY 2008

FILE NO/S:   DR 254 of 2006

BETWEEN:   LOMMA HOMES

Applicant

AND

TOWN OF CAMBRIDGE
Respondent

Catchwords:

Town planning ­ Conditions of approval ­ In the event of a disagreement between the parties the matter to be referred back to the Tribunal for final determination

Legislation:

Planning and Development Act 2005 (WA)

Result:

The conditions of approval (a) to (e) as imposed by the Tribunal in [55] of its determination of 3 November 2006 are re-affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr P Lomma (Acting as Agent)

Respondent:     Ms J Easton ( 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

1. The reasons for decision were delivered on 3 November 2006 and provided, in the event of a disagreement between the parties on the conditions of approval, for the matter to be referred back to the State Administrative Tribunal for final determination.

2. The applicant sought such a determination and the matter was heard on 27 February 2008.

3. The decision of the Tribunal was to re-affirm the conditions of approval imposed on the development on 3 November 2006.

Background

1. On 3 November 2006, the State Administrative 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 facing 4.1 metre southern 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 subject 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.

2. On 17 December 2007, Mr Paul Lomma advised the Tribunal 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."

3. A hearing was conducted on 27 February 2008 with both parties in attendance, as allowed for in [4f)] above.

4. 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.

5. The Tribunal found no reason to alter conditions a) to e) in its original decision of 3 November 2006, and determines accordingly.

Orders

1. For the foregoing reasons, the orders of the Tribunal are as follows:

   1.That the matter is determined in accordance with conditions a) to e) as outlined 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 facing 4.1 metre southern 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 subject 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.

I certify that this and the preceding [9] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR L GRAHAM, SENIOR SESSIONAL MEMBER