Low v Swan Cove Holdings Pty Ltd
[2003] WASCA 115
•6 JUNE 2003
LOW & ANOR -v- SWAN COVE HOLDINGS PTY LTD & ANOR [2003] WASCA 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 115 | |
| Case No: | SJA:1094/2001 | 29 NOVEMBER 2002 | |
| Coram: | ROBERTS-SMITH J | 6/06/03 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JANELLE MAREE LOW CHRISTIAN WYRZYNSKI SWAN COVE HOLDINGS PTY LTD CITY OF SUBIACO |
Catchwords: | Town planning Development approval for construction of residential premises Building constructed beyond that for which approval given Application for retrospective approval of building as constructed Refused by local authority Appeal to Town Planning Appeal Tribunal Application approved Nature of appeal to Tribunal Rehearing Whether hearing de novo Whether Tribunal made its own assessment and determination Local government Building and town planning Application for retrospective approval Town planning scheme and R Codes Approach to interpretation Powers to waive or vary Whether applicable Principles to be applied Whether restrictions or requirements in town planning Scheme and R Codes "binding limits" or "guiding principles" Local government Town planning Application for retrospective approval of building constructed contrary to terms of previous approval by local authority Whether circumstances of construction and conduct of developer relevant to application for retrospective approval Principles to be applied |
Legislation: | Town Planning and Development Act 1928 (WA) |
Case References: | Allesch v Maunz (2000) 203 CLR 172 Dawe v Town Planning Board, unreported; TPAT; Appeal No 5 of 1979; 17 December 1979 Fox v Percy (2003) 197 ALR 201 Humphreys v Town Planning Board, unreported; Town Planning Court; 10 June 1975 Ireland v Cessnock City Council (1999) 110 LGERA 311 Kouflidis v City of Salisbury (1982) 29 SASR 321 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Ocean View Plaza Pty Ltd v WA Planning Commission [1999] WATPAT 5 State Planning Commission v Wallasley Pty Ltd, unreported; SCt of WA; Library No 950254; 26 May 1995 Swan Cove Holdings Pty Ltd v City of Subiaco & Ors [2001] WATPAT 7 Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor (2000) 111 LGERA 422 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : LOW & ANOR -v- SWAN COVE HOLDINGS PTY LTD & ANOR [2003] WASCA 115 CORAM : ROBERTS-SMITH J HEARD : 29 NOVEMBER 2002 DELIVERED : 6 JUNE 2003 FILE NO/S : SJA 1094 of 2001 BETWEEN : JANELLE MAREE LOW
- CHRISTIAN WYRZYNSKI
Appellants
AND
SWAN COVE HOLDINGS PTY LTD
First Respondent
CITY OF SUBIACO
Second Respondent
Catchwords:
Town planning - Development approval for construction of residential premises - Building constructed beyond that for which approval given - Application for retrospective approval of building as constructed - Refused by local authority - Appeal to Town Planning Appeal Tribunal - Application approved - Nature of appeal to Tribunal - Rehearing - Whether hearing de novo - Whether Tribunal made its own assessment and determination
Local government - Building and town planning - Application for retrospective approval - Town planning scheme and R Codes - Approach to interpretation - Powers to waive or vary - Whether applicable - Principles to be applied -
(Page 2)
Whether restrictions or requirements in town planning Scheme and R Codes "binding limits" or "guiding principles"
Local government - Town planning - Application for retrospective approval of building constructed contrary to terms of previous approval by local authority - Whether circumstances of construction and conduct of developer relevant to application for retrospective approval - Principles to be applied
Legislation:
Town Planning and Development Act 1928 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellants : Mr D W McLeod & Mr P L Wittkuhn
First Respondent : Mr A S Derrick
Second Respondent : Mr R L Le Miere QC & Mr J M T Woodhouse
Solicitors:
Appellants : McLeod & Co
First Respondent : Phillips Fox
Second Respondent : Watts & Woodhouse
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 203 CLR 172
Dawe v Town Planning Board, unreported; TPAT; Appeal No 5 of 1979; 17 December 1979
Fox v Percy (2003) 197 ALR 201
Humphreys v Town Planning Board, unreported; Town Planning Court; 10 June 1975
(Page 3)
Ireland v Cessnock City Council (1999) 110 LGERA 311
Kouflidis v City of Salisbury (1982) 29 SASR 321
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Ocean View Plaza Pty Ltd v WA Planning Commission [1999] WATPAT 5
State Planning Commission v Wallasley Pty Ltd, unreported; SCt of WA; Library No 950254; 26 May 1995
Swan Cove Holdings Pty Ltd v City of Subiaco & Ors [2001] WATPAT 7
Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor (2000) 111 LGERA 422
Case(s) also cited:
Nil
(Page 4)
1 ROBERTS-SMITH J: The appellants own and live in a residential property at Lot 11, number 45 Bedford Avenue, Subiaco. The first respondent ("SCH") is the owner of the adjoining property at Lot 10, number 43 Bedford Avenue ("the property").
2 SCH wished to develop the property. An early proposal put before the Council was not favourably received. The report which was incorporated in the Council minutes noted that it had been referred to nearby and adjoining landowners for comment and there had been objections to the proposal. The objections included concerns about the height of the proposed parapet wall with its potential to block views of the wider environment.
3 The report notes that in answer to those and other concerns expressed, the proposed design was amended.
4 The amended proposal was approved by the Council on 24 February 1998.
5 The Council issued a building licence on 14 September 1998, following which the house was constructed. However, as finally constructed, the house differed in material respects from the plans that had been approved.
6 By letter dated 18 October 1999 the Council informed SCH that the development was not in accordance with the approved plans.
7 On 3 December 1999 SCH then applied to the Council for "retrospective planning approval" for a "built" building pursuant to cl 3.27.1 of the City of Subiaco Town Planning Scheme No 3 (" the Scheme").
8 On 22 February 2000 the Council refused the application and determined that SCH was to reinstate the building in accordance with the approved plans dated December 1997, failing which the Council would initiate prosecution action.
9 SCH appealed to the Town Planning Appeals Tribunal. In a decision delivered on 24 May 2001 (Swan Cove Holdings Pty Ltd v City of Subiaco & Ors [2001] WATPAT 7) the Tribunal allowed the appeal and approved the development subject to specified conditions being complied with to the satisfaction of the Council.
(Page 5)
10 The appellants now appeal to this Court pursuant to s 54B of the Town Planning and Development Act 1928 (WA) ("the Act"). The appeal raises questions concerning the interpretation of the Scheme and the R Codes and the power of the Council to approve the development. There are also grounds asserting that the Tribunal erred in the exercise of its discretion.
The background
11 The opportunity for development came about in what is an historical residential area in Subiaco, because of the amalgamation of two lots by a resubdivision approval in March 1997, creating what is now No 43 and No 45 Bedford Avenue. The resubdivision created two new lots, one of 423 sqm and the other of 353 sqm. There was an existing house. Prior to the 1997 resubdivision, the house was situated across the boundary of the two lots. After the resubdivision, the house was wholly within the boundaries of No 45.
12 The most significant amendments made to the SCH development proposal in February 1998, to meet the concerns of local landowners and the Council itself, had to do with the introduction of a pitched roof and the height of a parapet wall.
13 The Tribunal noted the parties were generally in agreement about the differences between what was originally approved and what was built. Those of any significance were described as follows:
"1. Addition of a projecting two-storey bay window, setback 4.94m from street alignment;
2. Reduced setback to balance of lounge area from 6.5m to 5.9m;
3. Deletion of recessed front entry;
4. Addition of an internal walkway above dining area, connecting the front and rear upper floor levels, previously not connected at this level;
5. Consequently raising of the height of the glazed north facing wall to the dining area from 3.1m to 5.0m in height;
(Page 6)
- 6. Addition of a 'Juliet' balcony 1800mm wide projecting 400mm into the courtyard, with inward opening French doors. The original approval was for an opening 1250mm wide by an undetermined height [the expression 'Juliet' balcony was explained to mean one large enough to accommodate only one female at a time: AB 77B-C]
7. An increase in the height of the parapet walls facing the right of way to 6.0m and 6.03m respectively, from the 5.5m shown on the approved plan;
8. Addition of a new single storey porch with hipped roof, 1.4m deep and 2.4m wide at the rear of the house;
9. Changes to the west elevation which include:
a. Amendment the roofline above bedroom 3;
b. Substituting 2 small windows (each approx. 600mm square) for the single window (1200mm x 900mm) to upper level bedroom 1);
c. Reducing the adjacent parapet wall at the southern boundary from a sloping wall to a lower horizontal wall;
d. Adding 2 small windows (each 600mm square) to the western wall of the stairwell.
10. Reduction in the overall east to west link of the upper floor (south side) from 18.9m to 18.50m (excluding nibs at east and west ends);
11. Addition of a nib at east end of the parapet wall on the southern boundary, adjacent and corresponding to the existing façade to the house at 45 Bedford Avenue, Subiaco;
12. Incorporation of a nib at the western end of the upper level parapet at the southern boundary, projecting 600m beyond the building face;
13. Increase in the height of the western and eastern sections of the upper level southern boundary parapet wall from 5.5m above the ground floor level to 6.1m;
(Page 7)
- 14. Increase the height of the central section of this parapet wall to 6.1m above ground floor level although the level of the top of this section of the wall is not shown on the original planning approval drawings;
15. Addition of a chimney to the northern elevation;
16. Addition of a panel of glass bricks to the north wall of the bath on the ground floor;
17. Reduction of the courtyard open space from 30.74m² to 25.92m²."
14 The expression "Juliet" balcony was explained to mean one large enough to accommodate only one female at a time (AB 77B-C).
15 "Parapet" walls are walls which project above the line of the roof (Mr Adam, AB 99C-D).
16 The particular aspects of present concern are the internal courtyard and the southern parapet wall, but they are of course to be considered in the context of the development as a whole and the overall effect of the differences between the plans as approved and the building as constructed.
17 In evidence before the Tribunal, Mr Eugene Koltasz, a Town Planner engaged by the appellants, described some of the changes (AB 290 - 292). He said the front wing of the house had suffered a complete change in roof pitch in that instead of having the roof pitched on both angles, it was now pitched only north-south along an east-west running roof ridge. His view was this led to:
"… immense extra building bulk especially at the front elevation."
18 He said the middle section had also been reduced in width compared with that approved and the extra width had been transferred to the rear wing creating a bulkier rear wing incorporating multiple roof sections, whereas the approved development plan showed it as incorporating basically a single roof structure.
19 As to the parapet wall, he noted the maximum approved height of the parapet wall was 5.3 metres and that the approval envisaged the parapet wall to drop down to a height of 4.5 metres where it abuts the middle section of the appellants' house. Instead, it emerges from above and
(Page 8)
- behind the middle section of the Lot 10 house so as to create a uniform height parapet wall.
20 Mr Koltasz's conclusions as to the parapet wall height departures were summarised in the following table:
|
|
|
|
|
|
or 15% |
or 30% |
|
|
OR 28% |
OR 43% (2.4m for ROW parapet wall) |
21 He further noted that the parapet wall was approved only to extend so as to abut the front and rear wings of the Lot 10 house, but they had themselves been extended so that the parapet wall extended further both forward and rearward of the respective wings. That compounded the over-height problems of the parapet wall. He described the effect as:
"… a massive unapproved parapet wall over the Lot 11 sundeck, as well as an unapproved nib extension at the front of the Lot 10 house."
22 He also observed that the middle section joining the two wings of the Lot 10 house had been raised in height by 2.8 metres and an unapproved catwalk had been added to that middle section with floor to ceiling windows along the length of the catwalk. His conclusion was that (AB 297):
"… the parapet wall is bulky, overbearing and unsightly, and it carries the hallmarks of what I would, in amenity impact assessment terms, consider to result in an enormous loss of enjoyment for the occupiers of the Lot 11 house of a critical aspect of their enjoyment of that property."
(Page 9)
23 The first respondent led countervailing evidence, notably from another Town Planner, Mr Kenneth Adam, who testified that much of what Mr Koltasz had said was simply inaccurate (eg at AB 100). There were therefore, significant factual conflicts between them. Mr Adam was particularly critical of the table prepared by Mr Koltasz, which he said was "seriously flawed" (AB 103).
24 A view showing the southern elevation of the building against No 45 Bedford Avenue is at Annexure A to these reasons.
25 As Mr McLeod put it, the height of the parapet wall as finally constructed (6.8 metres) was approximately the height which had originally been proposed, but which the Council was not prepared to approve, the approval being only for a wall to a height of 5.3 metres. Furthermore, instead of the parapet wall peaking at 6.8 metres, it in fact ran for its whole length along the appellants' property at that height.
26 The northern boundary of the property runs along a right of way to Bedford Avenue.
27 The appellants' property is on the southern boundary.
28 The relevant courtyard is fully enclosed, being bounded on the South, East and West by the walls of the house and on the fourth side by the northern boundary wall.
29 At the Council meeting on 22 February 2000 the staff report noted:
"The courtyard currently has an area of 26.4m². The required site open space for a single dwelling in R20 is 50% ie 176m². The open space provided is 178.7m², however this area includes that contained in the confined courtyard space. To deduct the courtyard would (sic) area would leave the site open space in deficit which is unacceptable, however in accordance with the R-Codes the area of the courtyard must be no less than 40m² to allow for its inclusion.
Council does not have reasonable discretion to vary this clause and as such it is recommended that the courtyard be increase (sic) in size to meet the R-Code requirements. The plans as submitted would indicate that the application of this condition is viable."
(Page 10)
30 In relation to this, Mr McLeod pointed out that if half the site area was 176 sqm, then the total site area would be 352 sqm - whereas in actual fact, the area of Lot 10 is 358 sqm. He submitted that difference explained some discrepancies between the evidence of Mr Adam and that of Mr Koltasz in relation to the open space calculations.
31 In fact, on the evidence, the area of Lot 10 is 358m². That is clearly shown by the certificate of title volume 2123 folio 581 and Diagram of Survey number 93808 (AB 362). I note that was the figure upon which Mr Koltasz based his calculations (AB 180).
32 The Council's reason for refusing the retrospective application was that the proposed modifications did not adequately meet the requirements of the R Codes in terms of:
• the effect on the amenity of the adjoining lot;
• the area of the courtyard;
• overshadowing, and
• the amenity of the residential area in relation to building size, streetscape, space about the building and development in keeping with the standards of the locality.
Grounds of appeal
33 The grounds of appeal as amended at the hearing are that:
"1. Open space: power of Tribunal to approve development
The Tribunal erred …
1.1 In law in holding that an internal courtyard can be included in the calculation of open space for the subject site under clause 2.1.2 of the Residential Planning Codes ('R Codes') where the courtyard is of an area of less than 40 m².
1.1A in fact in failing to find that the correct open space calculation was 48.64% if the courtyard were included or 41% if the courtyard were not included.
(Page 11)
- 1.2 in law in holding that clause 2.4.1 of the R Codes applied to allow the Tribunal to waive or vary provisions of the R Codes. The Tribunal held that the clause applied where:
what is proposed is consistent with standards of development in the locality, such standards being derived from what has been approved in the past
WHEREAS IT IS CONTENDED that the Tribunal ought to have held that the clause only applies where
The application of the provisions of the R Codes would prevent the building of a single house in keeping with the standards of its locality.
- 2. Southern parapet wall: power of Tribunal to approve development
The Tribunal erred in law in:
2.1 Holding that clause 1.5.8(f) of the R Codes did not place an absolute limit upon the permissible dimensions of the southern parapet wall.
2.2 Failing to hold that clause 1.5.10 of the R Codes had the effect (having regard to the southern parapet wall), that the development was required to be notified to affected owners and occupiers and approved prospectively, and therefore could not be approved retrospectively.
2.3 Holding that it had discretion, pursuant to clause 2.5.2 of the R Codes, to approve the subject house with the southern parapet wall built to the side boundary.
2.4 The Appellant repeats ground of appeal 1.2.
3. Legal errors in approach to exercise of discretion
3.1 If, contrary to the Appellants' contentions in grounds 1.1 and 2.1, clauses 1.5.8(f) and open space provisions of the R Codes did not impose
(Page 12)
- binding limits upon setbacks, wall dimensions and open space, then the Tribunal erred in law in failing to treat those provisions as providing guiding principles for the exercise of the Tribunal's discretion.
- 3.2 The Tribunal erred in law in examining whether the southern parapet wall was within the reasonable realms of discretion of the City of Subiaco or the Tribunal, and thereby failed to examine the matter afresh purely on the merits by way of a consideration de novo.
3.3 The Tribunal erred in law in holding that the circumstances in which the subject house came to be erected without development approval are irrelevant upon an application for retrospective approval; WHEREAS IT IS CONTENDED that such circumstances may be relevant and were relevant in the instant case as going to orderly and proper planning."
34 To understand the grounds it is necessary first to consider the legislative framework and then to examine in more detail the relevant aspects of the Tribunal's decision.
Legislative framework
35 The Residential Planning Codes ("the R Codes") were promulgated on 30 January 1985 under s 5AA of the Act. They were amended and re-promulgated in 1991.
36 The Scheme was adopted by the Council on 15 February 1999. The general objects of the Scheme set out in cl 1.6 include to secure the amenity, health and convenience of the Scheme area and its inhabitants and to make provision as to the nature and location of buildings and the size of the lots when used for certain purposes.
37 By cl 3.27 it is provided that:
"3.27 APPROVAL OF EXISTING DEVELOPMENTS
3.27.1 The Council may grant approval to a development already commenced or carried out regardless of when it
(Page 13)
- commenced or was carried out. Such approval shall have the same effect for all purposes as if it has been given prior to the commencement or carrying out of the development, but provided that the development complies with the provisions of the Scheme, with or without the exercise of discretion provided in the Scheme, as to all matters other than the provisions requiring Council's approval prior to the commencement of development.
- 3.27.2 …
3.27.3 A development which was not permissible under this Scheme at the time it was commenced or carried out may be approved by a Special Majority of Council if at the time of approval under this clause it is permissible."
38 Part 4 deals with residential planning codes.
39 Clause 4.1 stipulates that Pt 4 applies to all residential development, provided that in all zones other than the residential zone, the Council may vary any provision of the R Codes it deems appropriate.
40 Clause 4.2.4 stipulates that:
"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the residential planning codes shall conform to the provisions of those codes and the schedules to the codes."
41 The current R Codes are contained in the Statement of Planning Policy No 1 (as amended in 1991) promulgated in the "Government Gazette" of 13 December 1991.
42 Paragraph 2 of the Statement provides that all town planning schemes prepared and adopted by local authorities under the Act shall require residential development in zones where residential development is permitted, to be subject to the controls contained in the R Codes.
43 Paragraph 6 stipulates that the Codes shall be read in conjunction with the Manual published together with them as "Residential Planning Codes of Western Australia Manual and Codes".
(Page 14)
44 I accept the submissions of the first and second respondents that whilst the Manual is not part of the R Codes, it may be used to ascertain the intention behind them and to explain and interpret particular provisions of them. That was the approach taken by the Tribunal itself in Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, 173.
45 It was common ground that the property is situated in the residential zone of the Scheme and is classified R 20.
46 The starting point of the appellants' submissions is that the Scheme does not confer a discretion to vary any provision of the R Codes in relation to development on the property. It is submitted that the application for retrospective approval being made under cl 3.27 of the Scheme could not be approved unless it complied with the requirements of the Scheme, including conformity to the R Codes.
Ground 1 - open space - courtyard
47 This ground asserts that the Tribunal did not have discretion to vary the R Code requirement of 50 per cent open space, as the Tribunal purported to do and that as there was no discretion, the Tribunal did not have jurisdiction to determine the appeal.
48 Reading the Statement of Planning Policy, the R Codes and the Manual together, it is clear that the Codes are not to be regarded as inflexible, but rather as a set of performance-based rules. The R Codes' clauses which give discretionary power to vary standards specified therein recognise that not all land or development is exactly the same and that because of the special circumstances of a particular development, the exercise of a discretion to vary specific requirements of the Codes may be appropriate. The principal aim of a Council exercising its development control functions, should not be to simply ensure that a development complies with the detailed provisions of the Codes, but rather to ensure that the development meets the objectives set out in cl 1.2.1 of the R Codes, the objectives of its local housing strategy, and any design guidelines it may have adopted.
49 In its application before the Tribunal, SCH claimed to meet the 50 per cent open space requirement in Table 1 of the R Codes by including the area of the courtyard. The appellants' argument before the Tribunal and on this appeal was that the courtyard cannot be included in
(Page 15)
- the calculation because of the wording of cl 2.1.2 of the R Codes. That clause provides that:
"A single house may be constructed with one or more walls built up to one or more side or rear boundaries and with part of the open space requirement included in a confined unroofed area, and in such cases such open space shall have a minimum of 40m², minimum side dimension of 5m and a maximum eaves overhang of 750mm."
51 Having adopted that construction, the Tribunal accepted the evidence of Mr Adam (that the total area of open space, including the internal courtyard was 51 per cent) and rejected that of Mr Koltasz (who said it was 49 per cent - rounded up from 48.64 per cent - with the courtyard included and 41 per cent without it).
52 The appellants contend that cl 2.1.2 clearly stipulates that where a single house is constructed with one or more walls built up to one or more side or rear boundaries, a confined courtyard cannot be included in the open space requirement unless it has a minimum area of 40 sqm. It is said that the courtyard area cannot be included here, because the SCH house was constructed with two walls built up to two side boundaries and the courtyard is a confined unroofed area of 25.92 sqm.
53 The Tribunal correctly recognised that the general discretion to vary any provision of the R Codes does not apply to residential zones and hence not to the property here.
54 The first basis upon which the Tribunal concluded the open space requirement could be (and was) met by inclusion of the courtyard, was its acceptance of the evidence Mr Adam. The starting point was his argument which relied upon the statement in the Manual that cl 2.1.2 should not be interpreted to mean that lesser areas of confined space are not permissible.
(Page 16)
55 The Tribunal concluded the gist of the Manual is that the confined open space can be less when there is also a rear garden area. It accepted that the Manual is clearly a guide to interpreting the R Codes but said that the two are not meant to be read "tightly" together; the intention of the Codes, derived from the Manual and the interaction of its provisions, is what must be used to ascertain the meaning of a clause.
56 I would rather express it by saying the meaning of a clause is to be ascertained from the terms of the clause itself, as explained by the Manual. If there is still uncertainty or ambiguity, then the construction to be adopted is that which would best give effect to the planning intention, as gleaned from the context in which the clause appears.
57 Applying that approach here, one starts with cl 2.1.2 itself. It states that part of the open space requirement may be met by the inclusion of a confined, unroofed area. The words "and in such cases" which then follow, can only be a reference to cases in which part of the open space requirement is sought to be met by inclusion of a confined, unroofed area. Thus, in those cases, "such open space" must meet the stated minimum requirements. The words "such open space" must mean the space in the confined, unroofed area. In its terms, cl 2.1.2 is mandatory: in the cases to which it applies, the confined, unroofed area must have a minimum area of 40 sqm, a minimum side dimension of 5 metres and a maximum eaves overhang of 750mm.
58 The relevant passages in the Manual state that:
"The linkage to open space arises from the possibility of the usual rear garden being eliminated or substantially reduced. In that event it is considered reasonable to replace or supplement it with an enclosed courtyard. Such a courtyard should be of reasonable dimensions for outdoor living purposes, hence the minimum dimensions of 5m for its sides and 40 sq m area.
Clause 2.1.2 should not be interpreted to mean that lesser areas of confined open space are not permissible. However, no such area may be considered as a substitute for any area of open space lost at the rear as a result of building to the side or rear boundaries. Where the rear garden area remains unaffected confined areas of open space may be counted as part of the general 50% open space requirement."
59 The uncertainty or ambiguity arises not because of the terms of cl 2.1.2 itself, but because of the explanation of it in the Manual.
(Page 17)
60 The substance of the planning purpose is to maintain sufficient rear garden or confined open space for outdoor living purposes. A specific reference to rear garden, confined, unroofed area and outdoor living, suggests an outdoor or open space area with a degree of privacy which would therefore be suitable for outdoor living. That is no doubt why a front garden area is not included.
61 The statement at 2.1.2 should not be interpreted as meaning that areas of confined open space less than 40 sqm (I shall use that shorthand description to include all three minimum requirements) are not permissible, refers to a situation in which there has been no loss of open space at the rear as a result of building to the side or rear boundaries. In those circumstances - that is, where the rear garden area remains unaffected by building to the side or rear boundaries - lesser confined areas may be included as part of the 50 per cent open space requirement. That is because the Manual says so - the clause itself says nothing about that situation. It deals only with the situation in which there is a loss of rear open space as a result of building to a side or rear boundary. This is the context in which the Manual states "no such area" may be considered as a substitute for any area of open space lost at the rear as a result of building to the side or rear boundaries. The words "no such area" refer to "lesser areas of confined open space".
62 It follows from this analysis that where a rear garden area is not affected by walls built to the side or rear boundaries, the 50 per cent open space requirement can be met by including confined open space even though that is less than 40 sqm. However, where a rear garden area is affected by walls built to a side or rear boundary, confined open space may be included to meet the 50 per cent requirement, but only if it is of reasonable dimensions for outdoor living purposes, that is, not less than 40 sqm.
63 The courtyard in the present case is a confined unroofed area of 25.92 sqm and so can be included only if the rear garden area is not affected by walls built to the side or rear boundaries. The Tribunal so found (reasons, [34], [36] and [37]). Specifically, it accepted the evidence of Mr Adam "as to the manner of calculation of open space, "which necessarily implies acceptance of his evidence that the rear garden is unaffected except for a small porch and nothing has been lost. Mr Adam was not cross-examined on that. It was open to the Tribunal to accept his evidence.
(Page 18)
64 The appellants' submission that the Tribunal erred in holding that cl 2.1.2 permitted the inclusion of the courtyard in the calculation to meet the 50 per cent open space requirement cannot be accepted. Ground 1.1 is not made out.
65 Ground 1.1A was added with leave at the hearing. I turns on a conflict between the evidence of Messrs Adam and Koltasz.
66 Mr Adam's evidence-in-chief was that the open space on the property, including the courtyard, comprised 51 per cent of the total area and that the rear 6 metre deep garden area was unaffected except for a small porch. He was not cross-examined on this evidence.
67 Mr Koltasz initially gave evidence that the area of the open space on the property, including the courtyard, comprised approximately 47 per cent of the total area (AB 174). Ultimately however, his evidence was to the effect that the open space including the courtyard comprised approximately 49 per cent of the total area and excluding the courtyard it comprised approximately 41 per cent. He said (at AB 180D) that in determining the amount of open space he took into account the area of the front yard, the area of the rear yard less the truncation, that is the area of the rear yard less a 750mm strip along the back portion which is fenced off and unusable in that it is there for future widening of the right of way at the rear.
68 He said nothing further about the 750mm strip and was not cross-examined about it; nor was there any other evidence in relation to it. Consequently his was the only evidence before the Tribunal as to the existence of the 750mm strip and its purpose.
69 The appellants submit that the Tribunal was obliged to accept this evidence with the consequence that the 50 per cent open space requirement had not been met.
70 It can be seen very ground involves two propositions: the first is that the Tribunal was obliged to accept the evidence of Mr Koltasz on this; and secondly, if it accepted his evidence on the factual issue, it should also have accepted his conclusion.
71 The relevant findings of the Tribunal were that the property had a rear garden and the courtyard could therefore be included in the calculation of the area of open space and that it accepted the interpretation of Mr Adam as to the manner of calculation of the open space. It concluded that it had "no way of deciding if the exclusion by Mr Koltasz
(Page 19)
- of a 750mm strip along the back portion for future widening of the right of way at the rear is correct" (AB 23 [36]).
72 The evidence about the 750mm strip was limited and unclear. It must be assumed, I think, that Mr Koltasz was referring to a strip of land forming part of the 358 sqm of the property and running along the 12.64 metre straight boundary at the rear or western end of it. If that be so, the total area of the strip is 9.48 metres.
73 The calculations put forward by counsel for the appellants indicate that in arriving at his conclusion that the open space comprised approximately 49 per cent of the total area of the property, Mr Koltasz has taken the 750 mm into account for the purpose of determining what the total area of the property is, but has excluded it when calculating the area of open space.
74 The first respondent submits that on the material before the Court and in light of the conclusion of the Tribunal, that it had no way of deciding if the exclusion of the strip for future widening of the right of way at the rear was correct, it is not possible to find that there is in fact a 750mm strip along the back portion of the property for future widening of the right of way. It would follow from that submission, were it accepted, that it would be impossible to conclude that the 750mm strip should not be taken into account when calculating the amount of open space on the property. That submission must be accepted. Mr Koltasz's evidence that the strip had been reserved for a future right of way was the only evidence on the point - but he made no reference to the source of that information and nor did he elaborate upon it otherwise. Given that it had never been put to Mr Adam in cross-examination and it was not something to which he made any reference, and there was no other evidence about it, it is understandable that the Tribunal concluded it had no way of deciding if a 750mm strip had in fact been so reserved.
75 But the Tribunal was correct in its approach to this for another reason.
76 "Open space" for the purpose of the 50 per cent requirement, stipulated in Table 1 of Pt 6 of the R Codes, is defined to mean the area of a lot which is not occupied by any building (see cl 1.3.1 and the commentary in the Manual at 52). Thus, if the 750mm strip was included as part of the 358 sqm area of the property, as appears to have been accepted, then it was area of the property which was not occupied by any
(Page 20)
- building and therefore should properly have been taken into account when calculating the amount of open space on the property.
77 If the 750mm strip is included, then on what are said to have been the figures Mr Koltasz used, the total area of open space including the courtyard is 183.64 metres (or 51.3 per cent of the total area) and excluding the courtyard is 157.72 metres (which would represent 44.1 per cent of the total area).
78 Accordingly, ground 1.1A must fail.
79 That brings me to the next issue, which concerns the power to vary the requirements of cl 2.1.2.
80 The relevant provision is that contained in cl 2.4.1:
"Where the provision (sic) of these Codes prevent the building of a single house in keeping with the standards of its locality, the Council may waive or vary provisions."
81 The Tribunal accepted there was an onus on SHC to show that cl 2.4.1 should be exercised in its favour and a requirement that the departure must be approved. I consider that to be correct.
82 The explanatory text in the Manual (at 78) so far as is relevant, states:
"Clause 2.4.1 gives the Council the power to waive or vary any provision of the Codes to allow the building of a single house which would otherwise have been prevented by the provisions of the Code.
This is designed primarily to ensure that a residential lot which has been lawfully created may be developed by the construction of a single house …" (Emphasis in original)
83 The appellant argues that the power cannot be used unless it is impossible to build without a departure from the provisions of the R Codes. It was put that on its proper interpretation, the purpose of cl 2.4.1 is to ensure that a residential lot which has been lawfully created should not be prevented from being developed by the construction of a single house in keeping with the standards of the locality.
84 The appellants then submit there was no evidence as to the relevance of a confined courtyard, nor of an open space area less than 50 per cent of
(Page 21)
- the site, to the standards of single houses in the locality. Thus it was contended that no basis had been established for the application of cl 2.4.1 at all and certainly none for the application of the clause to vary the standard requiring 50 per cent open space, and more specifically, the provisions of cl 2.1.2 requiring a minimum area of 40 sqm for a confined area of open space.
85 The Tribunal observed that in each locality there is a certain standard of development, derived from what has been approved in the past. In the Tribunal's view, if what is proposed is consistent with that standard, the provisions of the R Codes can be waived or varied to support that consistency - it is the overall development of the locality and the streetscape that is more important than adherence to precise calculations. The Tribunal preferred a "liberal interpretation" of the power and held that if it needed to be exercised in the appeal, it would be exercised in a manner which conformed to the objectives of the Codes.
86 Counsel for SCH submits that the Tribunal did not err in its interpretation of the ambit of the waiver power in cl 2.4.1. He submitted the clause requires the Tribunal first to determine what the "standards" of the locality are in terms of the construction of single houses; secondly, to regard the proposed single house development in order to assess whether it was "in keeping" with that standard; and thirdly, to determine whether, and if so what, provisions of the R Codes could be seen to prevent the construction of the proposed single house that is in keeping with the standards of its locality. The question was said to be whether particular Code requirements "prevent" the building of a single house which would otherwise be "in keeping with the standards of the locality". It was contended that is consistent with the test stated by the Tribunal.
87 In my view, cl 2.4.1 is to be understood as being concerned with a single house which is in keeping with the standards of its locality. If the building of such a house would be prevented by provisions of the R Codes, then the power to waive or vary arises.
88 The test propounded on behalf of the appellant was whether it would have been impossible to build a single house on Lot 10 which would be in keeping with the standards of its locality, unless it were permitted to depart from a particular provision of the R Codes. That puts it much too high and with its emphasis on building a single house in keeping with the standards of its locality, puts the emphasis and purport of the provision in the wrong place. I do not accept that is what the clause requires.
(Page 22)
89 I accept the respondent's submission as to the three-step logical process to be followed in applying cl 2.4.1. Taking that approach, it is sufficient here to accept that cl 2.1.2 would prevent the building of the house because it prevents the courtyard area being included in the calculation to meet the 50 per cent open space requirement. That being so, if the house is in keeping with the standards of the locality, that provision may be waived. The Tribunal was correct so to hold.
Ground 2 - Southern parapet wall
90 Clause 1.5.1 of the R Codes provides that setback shall be from lot boundaries according to Fig 3 and Tables 1 and 2 of the R Codes.
91 Clause 1.5.7 provides that notwithstanding the minimum set-back specified elsewhere in the Codes, a Council may, in a particular case, allow a lesser setback, provided it has regard to a number of factors set out in that clause.
92 Particular variations of set-backs may be permitted under cl 1.5.8, which is expressed to have effect "without restricting the generality of Clause 1.5.7".
93 That which pertains here is cl 1.5.8(f) which relevantly states that:
"(f) subject to the procedure set out in Clause 1.5.10 the required setback from a side boundary for any wall may be reduced to nil provided generally that the length of any such wall in relation to its height shall be not more than the following:
…
• walls exceeding 4m in height - 1/4 of the length of any common boundary."
95 The Tribunal relied upon the power in cl 1.5.7 to vary setback requirements and that in cl 2.5.2 which allows a nil setback in certain circumstances.
(Page 23)
96 In respect of cl 1.5.7 the Tribunal held that the power conferred by that clause is not restricted to variations of setback specified in cl 1.5.8. It would be more accurate in my view to express that as a finding that cl 1.5.8 does not exclude the general variation power in cl 1.5.7 from also applying to circumstances expressly covered by the former.
97 Ground 2.1 asserts in effect, that in respect of the circumstances to which it applies, cl 1.5.8 is exclusive and there is no scope for the exercise of the general power in cl 1.5.7.
98 The appellant submits that the Manual (at 80) speaks of the restrictions contained in cl 1.5.8(f) in a way which indicates that it was intended to constrain the application of the general discretion to vary setbacks in the circumstances dealt with in that clause. I take the reference to the Manual to be to the following statement:
"Side setbacks may be reduced to nil in the case of a subdivision involving the development of two or more single houses (Clause 2.5.2). This is not constrained by the restrictions contained in Clause 1.5.8(f) which is a general Clause having application to development on a single lot."
99 However, that statement is made in the context of, and in relation to cl 2.5.2, which provides that:
"In the case of a subdivision involving the development of two or more single houses a side setback between adjoining houses in the subdivision may be reduced to nil."
100 Clause 2.5 is headed "Subdivision concurrent with Development".
101 In my view the statement is not to be interpreted as contended for by the appellants. To say cl 1.5.8(f) is a general clause having application to development on a single lot, says nothing about whether it provides an exclusive power, nor about the application of cl 1.5.7.
102 The express wording of cl 1.5.7 and the introductory words of cl 1.5.8, make it clear that the general discretion in the former continues to exist notwithstanding the minimum setback specifications contained in cl 1.5.8. Clause 1.5.8 does not limit the discretionary power conferred by cl 1.5.7. The purpose of the former is to set out some of the more common variations which might be desirable in the interests of uniformity; it clearly was not intended to limit other possible variations. This view is supported by the Manual which relevantly states (at 66):
(Page 24)
- "Because of the impossibility of devising a set of rules to cover all circumstances it is essential to allow flexibility in the application of setback requirements, provided their intent is maintained.
Clause 1.5.7 provides this ability to allow a lesser setback in a particular case. However, in doing so the Council is obliged to have regard to a number of constraints. …
In order to provide for as much uniformity as possible in the application of setback variations Clause 1.5.8 sets out some of the more common variations which might be desirable. These should be used as a guide to other, similar cases which may arise."
103 Furthermore, in its commentary on cl 1.5.8 the Manual expressly recognises that the power to vary under cl 1.5.7 may be exercised by a more permissive allowance than the conditions prescribed in cl 1.5.8(e) and (f). The following passages appear at 70:
"Clause 1.5.8(e) and (f) set out the extent to which, and conditions under which, walls may be built right up to the side boundaries.
Although the provision is subject to consultation with neighbours, it is not generally expected that a more restrictive approach would be taken by a Council except where amenity was clearly at stake. In some cases a more permissive allowance may be appropriate, using Clause 1.5.7.
Some discretion - particularly with regard to the length of wall involved - is appropriate where the actual setback is somewhere between the required setback and nil."
104 I conclude that the Tribunal was correct in finding that the cl 1.5.7 discretion was available to it, provided that the circumstances appropriate to its exercise were met.
105 The appellant's next ground of appeal is that the Tribunal erred in failing to hold cl 1.5.10 had the effect in respect of the parapet wall that the development was required to be notified to affected owners and occupiers and approved prospectively and therefore could not be approved retrospectively. The ground was not developed in argument beyond that assertion.
(Page 25)
106 The submission of the second respondent on this was that the notification required under cl 1.5.10 can be effected in the case of an application for retrospective development approval. There is nothing in cl 1.5.10 that has the effect that the Council cannot allow a lesser setback under cl 1.5.7 in the case of an application for retrospective development.
107 The first respondent's submission is that the power to vary setback requirements created by cl 1.5.7 is not subject to the procedure set out in cl 1.5.10, which applies only when the power to vary setback requirements is exercised pursuant to cl 1.5.8(f). It was submitted that it was not possible for "the development of the land" to conform with cl 1.5.10 because that clause does not prescribe standards which the development must meet. Rather, it provides for a procedure that a Council is required to follow in certain circumstances. Accordingly, it was submitted that even if cl 1.5.7 is to be read as subject to cl 1.5.10, the Tribunal made no error in failing to hold that the failure to follow the procedure set out in cl 1.5.10 in respect of the southern parapet wall, did not permit retrospective approval being given pursuant to cl 3.27.1 of the scheme.
108 Mr Derrick pointed out that the reason this ground is framed to assert the Tribunal erred in "failing to hold" is presumably because the point was never taken before it and the Tribunal therefore did not deal with it.
109 In response to the appellants' submission that because the clause refers to "the proposed development", the only way it can be complied with is if the development has not been commenced, Mr Derrick pointed out that only cl 1.5.8 is expressed to be subject to cl 1.5.10 - there is no such stipulation in cl 1.5.7, that being the general power of variation and which was relied upon by the Tribunal.
110 As a matter of language, there is no reason why cl 1.5.10 cannot be effectively complied with in an application for retrospective development, with the procedural steps specified being taken once the application is received.
111 This, indeed, appears to be precisely what happened in the present case. The application was made to the Council on 3 December 1999 and the City advised nearby owners of it by letters dated 21 December 1999. There was evidence before the Tribunal of the responses received, including the responses of the appellants.
112 It seems to me cl 1.5.7 is not subject to, nor limited by, cl 1.5.8.
(Page 26)
113 Notwithstanding this, given the fact that the R Codes do contemplate retrospective approval in certain circumstances and that a proposed development for which such approval is sought could well involve variation of setback requirements (as indeed this one does), cl 1.5.10 must be construed as applying to applications for retrospective approval. No violence is done to the terms of the clause by holding them to apply to such an application. There is no particular difficulty involved in giving the required notice, nor in the Council having regard to any submission received when determining the application.
114 For these reasons ground 2.2 fails.
115 In relation to the southern parapet wall, the Tribunal found further that, pursuant to cl 2.5.2 of the R Codes, there was a further discretion to permit a nil setback.
116 Clause 2.5 of the R Codes is headed "Subdivision Concurrent with Development".
117 The appellants contend that the Tribunal erred in holding that it had a discretion pursuant to cl 2.5.2 to approve the house on Lot 10 with the southern parapet wall built to the side boundary. The appellants' contention is that cl 2.5 applies only where there is a subdivision concurrent with development and furthermore only in relation to a development which requires the creation of a lot smaller in area than 350 sqm. It is said the clause cannot apply here because the subdivision which created Lots 10 and 11 created lots of 358 sqm and 417 sqm.
118 I accept the first respondent's submission that cl 2.5.2 is not confined to applications which involve the creation of lots smaller than 350 sqm. The clause is concerned with cases in which a subdivision and development are concurrent. The subclauses deal with specific situations, of which one is where the proposed subdivision would require the creation of lots smaller than 350 sqm. In its commentary on setbacks in respect of cl 2.5, the Manual makes no reference to cl 2.5.2 applying only to lots smaller in area than 350 sqm. All that is required for cl 2.5.2 to apply is that the subdivision must be concurrent with development and be for two or more adjoining single houses.
119 It is clear from both the terms of cl 2.5 and the commentary in the Manual, that there is a policy reason for requiring a development application to accompany an application for subdivision where a lot smaller in area than 350 sqm is to be created. The Manual specifically refers to the design constraints posed by small lots and hence the question
(Page 27)
- whether or not approval will be given to the subdivision will depend in part on the nature of the development which is proposed to be put on it. That is why both applications need to be presented at the same time.
120 Subclause 2.5.2 deals with a completely different situation; that concerns a subdivision involving the development of two or more single houses. There is no logical reason why it should be confined to lots smaller than 350 sqm.
121 In the present case the approval of the first respondent's application for subdivision to create the two lots was subject to two conditions. The first was that all buildings have necessary clearance from the new boundaries as required by the Scheme; the second was that the first respondent obtain approval for the development of a house on the property in accordance with cl 2.5 of the R Codes.
122 The first condition was imposed because the property already had a house on it, that being the appellants' house on Lot 11. The first respondent submitted that the second condition was imposed because it was clear that the subdivision was going to involve the development of two or more houses.
123 In fact the Tribunal proceeded on the basis (AB 20) that the second condition was imposed because the Council mistakenly believed that one of the lot sizes was going to be less than 350 sqm. Be that as it may, the condition was in fact imposed and it was one which was supportable on the basis the subdivision being proposed was going to involve the development of two adjoining single houses.
124 The effect of the conditions was that the approval of the subdivision did not take effect until the conditions were met. On that basis, the subdivision "involved" (and for that matter still involves) the development of two or more single adjoining houses. Accordingly, cl 2.5.2 of the Codes applies and the Tribunal did not err in holding that clause allowed the parapet wall to be built with a nil setback. This ground is not made out.
125 Ground 2.4 attacks the conclusion of the Tribunal that if the setback requirements could not be varied under cl 1.5.7 nor cl 2.5.2, they could be under the general power in cl 2.4.1. I have already made a finding on the availability of the general waiver power.
(Page 28)
Ground 3 - Legal errors in exercise of discretion
126 Ground 3.1 of the appeal is that if, contrary to the appellant's contentions in relation to grounds 1 and 2, cl 1.5.8(f) and the requirement of the R Codes as to total open space for a single dwelling, did not impose binding limits upon setbacks, wall dimensions and open space, then the Tribunal erred in law in failing to treat those provisions as providing guiding principles for the exercise of its discretion.
127 The appellants point out that nowhere did the Tribunal deal with the circumstances, for example, that the southern parapet wall would occupy two-thirds of the length of the common boundary as opposed to the one-quarter allowed in cl 1.5.8(f).
128 The appellants further submit that even if the stipulations in cl 1.5.8(f) were not binding limits, they were at the very least starting points from which clear justification for variation would have to be made; and the greater the extent of the variation, the heavier the onus upon the proponent.
129 As developed, the argument was that there was no indication in the Tribunal's reasons that it looked to the standards in the R Codes for any guidance as to what principles should guide the exercise of the discretion of the decision-maker.
130 It is necessary to return to the introductory provisions of the R Codes and the Manual.
131 The objectives of the R Codes are set out in cl 1.2:
"1.2.1 The objectives of these Codes are to:-
• encourage the development of a wide range of dwelling type;
• ensure adequate standards of privacy, daylight sunshine and safety for all dwellings;
• provide appropriate levels of car parking, access, incidental open space and storage and drying facilities for each type of dwelling;
• protect the amenity of adjacent buildings by minimising overshadowing, overlooking and visual intrusion;
(Page 29)
- • enhance the amenity of residential areas in relation to building size, streetscape, space about buildings, density and landscaping.
- 1.2.2 Compliance with the express provisions of these Codes shall be deemed to achieve these objectives."
132 It is significant to note that a proposal which complies with the express provisions of the R Codes is deemed to achieve the objectives. But a non-complying development may equally be approved in accordance with the Codes provided the Council is satisfied it meets the objectives in cl 1.2. Where a proposal does not meet one of the standards or requirements specified in the R Codes, it may nonetheless be approved if there is a proper exercise of the waiver or variation powers. They are to be exercised with the ultimate aim of meeting the objectives of the Codes.
133 It is a recurring theme of the R Codes and the Manual that they have a very wide application to infinitely variable circumstances and for that reason attempt to allow maximum flexibility, provided the objectives are met. I accept the submission of the second respondent that the Statement of Planning Policy, the R Codes and the Manual aim for maximum flexibility to meet the objectives of the Codes rather than prescribing sets of rules.
134 At 40 the Manual notes that the Codes provide considerable latitude to a Council in the planning of its municipality, first because there is a wide choice of housing density, secondly because the Council has considerable flexibility in how the Codes are applied without the need to vary specific provisions of them and thirdly the Codes give both the Council and the developer certain discretionary powers which can be used to accommodate specific circumstances that may arise from time to time.
135 Perhaps more pertinently to the present ground of appeal, the note at 44 of the Manual under the heading "Exercise of Discretion" points out that the power of discretion to vary certain provisions of the Codes is intended primarily to allow relaxation of prescribed requirements where the objectives of the Codes can be met in some other, equally acceptable, way. The Manual further notes that to a lesser extent the Codes also meet a corresponding need for the Council, on occasion, to impose additional or more restrictive requirements. In exercising any discretion the principal consideration is said to be to ensure that the objectives of the Codes are not compromised. According to the Manual what that means is that the proponent or the Council must be satisfied that the modified requirement
(Page 30)
- will satisfy the objectives of the Codes at least as well as the requirement it modifies.
136 All of this points to a liberal rather than a narrow interpretation of the provisions of the R Codes - which was the approach taken by the Tribunal.
137 A reading of the Tribunal's reasons indicates that it was concerned to ensure the objectives of the R Codes were met. For example, when referring to the power to vary under cl 2.4.1 the Tribunal said (at [41]) that if it needed to be exercised in the appeal before the Tribunal, it would be exercised in a manner which conformed to the objectives of the R Codes.
138 The error of law asserted by ground 3.2 is said to be that the Tribunal examined whether the southern parapet wall was within the reasonable realms of a proper exercise of the discretion of the Council, thereby failing to examine the matter afresh purely on its merits by way of a consideration de novo.
139 In Dawe v Town Planning Board, unreported; TPAT; Appeal No 5 of 1979; 17 December 1979, the Tribunal (comprising Mr D K Malcolm (as he then was) and members Arney and Dickson) referred to the relevant provisions under the Act and noted that the legislation contemplates a rehearing of the application de novo without limiting the parties to the material placed before the relevant authority at first instance. At 6 the Tribunal concluded that it was in the same position regarding appeals as was the Town Planning Court described by Burt J (as he then was) in Humphreys v Town Planning Board, unreported; Town Planning Court; 10 June 1975 as follows:
"This leads me to conclude that the appeal so-called is not to be regarded as a Court of law would regard an appeal from a decision of a judicial body exercising a judicial discretion, but as a rehearing, as if the application were before the Court, it exercising the discretion which in the first instance is vested in the Board. From this, certain consequences follow, the most important being that this Court must decide for itself whether upon the evidence led before it the application should be granted. Its function is not limited to the question whether the Bord as a body of reasonable men might have formed the opinion which it did. Nor is it bound by the reasons given by the Board for rejecting the application, as there may exist other
(Page 31)
- reasons which lead to the same conclusion. This is not to say that in coming to its own decision if it be the case - and it may well not be the case - that the evidence before it is in substance the same as the evidence before the Board, that the Court will not give proper weight to the decision already reached. It must however in the end decide the application for itself."
140 The distinction between an appeal stricto sensu, a rehearing and a hearing de novo has been discussed by the High Court in two recent cases, both of which make it clear that the nature of the appeal in each case will depend upon the terms of the applicable legislation.
141 In Fox v Percy (2003) 197 ALR 201, Gleeson CJ, Gummow and Kirby JJ said (at [20]):
"Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on the evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word 'rehearing'. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term 'appeal', or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case." (Citations omitted).
142 In Fox v Percy the appeal lay from the District Court of New South Wales to the Supreme Court by s 127(1) of the District Court Act 1973 (NSW). The character and features of the appeal were governed by s 75A of the Supreme Court Act 1970 (NSW), which expressly provided that the appeal was by way of rehearing, declared that the Supreme Court had all the powers and duties of the court from which the appeal was brought, (including the drawing of inferences, making findings of fact and assessment of damages) and empowered it to receive further evidence. That last power was qualified, in that where the appeal was from a
(Page 32)
- judgment after a trial or hearing on the merits, the Court was not to receive further evidence except on special grounds.
143 In the context of those provisions the majority pointed out (at [22]) that the "rehearing" there did not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. As to this, their Honours observed (at [23]):
"The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'gives the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record." (Citations omitted).
144 Notwithstanding the "natural limitations" to which their Honours then referred (at [23] - [27]) they emphasised the obligation of appellate courts (and semble, tribunals) to perform their appellate function as established by Parliament. Thus, where the appeal is by way of rehearing, then if, making proper allowance for the advantages of the primary Judge or tribunal, the appellate body concludes that an error has been shown, it is authorised and obliged, to discharge its appellate duties in accordance with the statute.
145 The distinction referred to in Fox v Percy as having been explained in Allesch v Maunz (2000) 203 CLR 172, appears in the judgment of the majority in that case at [23]:
"For the present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that,
(Page 33)
- unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand."
146 The approach in Dawe and Humphreys is consistent with the principles articulated in Fox v Percy and Allesch v Maunz.
147 The relevant provisions of the Act authorise the Tribunal to summon and examine persons and documents without restriction (s 50), expressly permit the parties to raise grounds not contained in a notice of appeal or contention (s 51) and require only that the Tribunal act according to equity and the substantial merits of the case (s 52).
148 The nature of the appeal to the Tribunal is clearly that of a hearing de novo, and the Tribunal is required to hear and determine the matter the subject of the appeal for itself.
149 The position of this Court on an appeal from the Tribunal is different. Such appeal lies under s 54B of the Act but only where it involves a question of law. A determination of the Tribunal is otherwise final (s 54D). The appeal is to be in the manner, and time, prescribed by the Rules of the Supreme Court (WA) ("RSC"). The relevant rule is O 65.
150 Order 65 r 10 provides:
"10 (1) Subject to paragraph (2), the appeal shall be in the nature of a rehearing, and the Judge hearing the appeal may confirm, quash or vary the decision of the tribunal against which the appeal is made or remit the matter to the tribunal for rehearing, with or without directions.
(2) The Judge may determine the appeal on the material that was before the tribunal when it gave its decision or, by special order given before or at the hearing, on such additional or fresh evidence, either oral or by affidavit, as may be allowed, or partly in the one way and partly in the other, and the Judge may rehear the testimony of any witness, whether by way of examination or cross-examination, and any party to the appeal may be represented by counsel."
(Page 34)
151 The Court has the power to make any order which could have been made by the Tribunal (State Planning Commission v Wallasley Pty Ltd, unreported; SCt of WA; Library No 950254; 26 May 1995 per Murray J).
152 However, an appeal to this Court is not a hearing de novo and accordingly its powers are exercisable only where the appellants can demonstrate error by the Tribunal (Allesch v Maunz, supra, at [23]).
153 The appellants contend that at least in relation to the parapet wall the Tribunal did not make its own assessment of the application on the planning merits of it. The respondents contend to the contrary, submitting that the Tribunal did make its own findings about the effect of the wall as constructed, on the amenity of the appellants and about the alleviating effects of the amendments proposed by the first respondent and that in that way, the Tribunal did examine the matter afresh on the merits by way of a consideration de novo.
154 To determine this ground of appeal it is accordingly necessary to examine what the Tribunal actually did.
155 The Tribunal received extensive evidence by way of witness statements, documentary exhibits and oral evidence of witnesses.
156 At [13] the Tribunal noted it had had an extensive view of the site and was able to fully understand the differences between what was approved and what was constructed and the effect of the parapet wall on the appellants. The Tribunal noted (at [66]) that there had been some controversy as to the size of the parapet wall which had been approved, although so far as it was concerned, the exact height was not the "grundnorm" of the appeal. The Tribunal recognised the important question as being the amenity impact of the parapet wall as built. That was the correct consideration. The Tribunal referred to the evidence of Mr Adam and found that the wall as constructed interferes with the amenity of the adjoining neighbour ([74]). The Tribunal went on to observe:
"74. … There is a parapet wall constructed at No.46 and the outline of that wall is still evident. It forms a sloping line as it moves from east to west and one would assume that its dimensions and shape best accords with the type of wall for which it was intended. However, that parapet or boundary wall is lost in scale in comparison to what was constructed.
(Page 35)
- 75. There are various and distinct effects that result from the constructed parapet wall. The Second respondents maintain a small garden and a pleasant sundeck. The garden and sundeck are in keeping with the historical character of their home. A view by the Tribunal of this area showed how dominating the wall is to the enjoyment of these amenities. The evidence of Mr Adam, that the wall at mid-winter would cast a 'fairly long shadow' over this area, was plain on observation. More importantly, the wall as constructed presented a disturbing bulk that was out of character with the home at No.45.
76. Mr Wyrzynski, in his Statement of Evidence, stated:
"Having said all this, I am not at all happy with the height of the parapet wall even if it was approved at 4.5m or 5.3m. The amenity impact has gone from very bad to absolutely intolerable. Even the lower of the two heights - 4.5m - well over two and a half times the height of an average person, and I believe it would be rare for a wall on the boundary to be that high."
77. The parapet wall as approved, at the centre point, dipped below the profile of the wall of No.45. At the eastern length, it would not have had a significant effect upon the wall or the use and enjoyment of the outdoor area. The western length formed an unfortunate bulk from the distance it extended out from the parapet wall of No.45 to the western boundary. However, as approved, it was sloped, which, to some extent, modified its impact. Although Mr Wyrzynski had legitimate concerns as to the impact of the approved wall on his amenity, the decision to approve a wall of this type was marginally open to the Council, in the view of the Tribunal.
78. The constructed wall has a more profound impact as it extends high over the falling off of the parapet of No.45. It then extends westerly in a straight line with an extension in length both at the eastern and western section, an extra section referred to as a nib. It is clear, in the view of the Tribunal that this parapet wall is unacceptable and falls below the relevant standard of amenity in relation to No.45." (Emphasis added).
(Page 36)
157 The Tribunal then noted that SCH had proposed four amendments in respect of the parapet wall to alleviate the effect. They were to reduce the projection of the nibs at the eastern and western ends and to reduce the height of the upper and lower parapet walls on the southern boundary. The effect of what was proposed would be to lower the wall to close to what had been approved originally - specifically, to reduce the height by 343mm, which would bring it to within 220mm of the approved wall. The Tribunal concluded:
"82. In the view of the Tribunal, this reduction in the concessions of the appellant take the wall to a height which is marginally acceptable and takes away from the impact upon the second respondents." (Emphasis added).
158 This seems to me to be a finding based on the Tribunal's own examination and assessment of the evidence and the effect of the proposed amendments, having regard to the objectives of the R Codes. Whether I agree with it or not is not to the point.
159 The earlier observation of the Tribunal (at [77]) that the decision to approve a wall of the type was "marginally open" to the Council, was not a finding going to the determination of the appeal, which rather turned upon the approval of the wall as constructed - as the Tribunal recognised (see eg AB 28, [50]).
160 There is force in the appellants' submission that in approving the parapet wall as built, the Tribunal was purportedly approving something even more marginal in terms of the ambit of reasonable discretion than that which had been approved by the second respondent. But that submission goes to the merit of the Tribunal's decision rather than whether it reflects relevant error.
161 Ground 3.2 has not been made out.
162 Ground 3.3 asserts the Tribunal erred in law in holding that the circumstances in which the house came to be erected without development approval is irrelevant upon an application for retrospective approval. The appellants' contention is that the circumstances may be, and were here, relevant, as they go to the issue of orderly and proper planning, which is always a relevant consideration in relation to a development applications of this kind.
163 It had been argued before the Tribunal on behalf of the appellants that the effect of retrospective approval would be to excuse SCH from a
(Page 37)
- prosecution for breach of the Scheme and that to consider relieving SCH from criminal liability required a consideration of evidence as to its motives and knowledge.
164 The Tribunal noted that the express purpose of retrospective approval is to make lawful what was unlawful when it was done, namely a development constructed without approval. It then continued (at [46])"
"46. The existence of retrospective approval is not to allow a device for a developer to build first and apply later. An Appellant taking this course runs the grave risk that the refusal of the application will require a prosecution and demolition of the work. The purpose of retrospective approval is to consider an already constructed development in accordance with the planning goals of preservation of amenity and orderly and proper planning, so that what was built can be approved, if it is [sic] complies with these goals. Retrospective approval is to overcome the conundrum in Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38 that the only recourse for development commenced without prior approval is demolition and a new application. Thus, a provision for retrospective approval was built into the Model Scheme Text contained in the Town Planning Regulations 1999."
165 The Tribunal went on to hold that the relevant considerations in relation to an application under cl 3.27 are those set out in the Scheme at cl 3.16, namely planning considerations that relate to whether the proposed development is appropriate in the locality. These are the only considerations which are relevant; the proponent's motives for building first and applying later were held to be not relevant.
166 Mr McLeod argued that the Tribunal's approach allowed no opportunity to distinguish the case of an innocent failure to obtain approval, from that (which the present was said to be) in which a proponent, having ascertained what the Council will not approve, applies for something which would get approval but then builds something deliberately going beyond that which was approved. Mr McLeod submitted that the provision for retrospective approval was intended to accommodate a situation in which a building had been erected inadvertently or mistakenly not in compliance with provisions of the Scheme and to avoid a situation where thereafter the building would be in
(Page 38)
- breach and any subsequent purchaser be confronted with the possibility or indeed the consequences of a non-complying building. Retrospective approval would enable the Council to deal with that situation and regularise it so that requiring the offending structure to be removed would not be the only option open.
167 It was submitted on behalf of the appellants that the former attitude of the courts was to take full note of the circumstances and motives which led to the irregularity, although more recent authorities recognise that such a discretion is to be exercised without regard to the motives of the developer. Mr McLeod's submission there however, was that the latter are authorities which deal with Scheme provisions where there is not a retrospective exculpation of the developer.
168 The gravamen of the submission was that it is undesirable to create a situation where a developer can manipulate the system by erecting a non-conforming building and then seeking retrospective approval of it; such a situation is one which would reflect very significantly on the issue of orderly and proper planning.
169 The appellants developed a further aspect of this ground. They submitted that a further reason for the conclusion that the circumstances of the construction of the building in which retrospective approval is sought are relevant to orderly and proper planning is because under cl 3.27 the grant of retrospective approval actually retrospectively removes the criminality of the original construction done without, or contrary to, approval. The Tribunal recognised this when it noted that retrospective approval is as good "for all purposes" as an approval obtained prospectively (reasons [44]). The submission is that it follows that the second respondent, in deciding whether to grant retrospective approval, was required to consider not only the planning merits of the building, but also the discretionary issue of whether the first respondent should be relieved from all criminal liability and that a key issue for the second respondent would then be whether the unapproved development was carried out in circumstances of misunderstanding of the true approval status, or cynically, fraudulently or manipulatively.
170 The respondents maintain that the motives or conduct of the proponent are irrelevant: the decision whether or not to give retrospective approval must be made entirely on planning considerations.
171 Clause 3.27.1 clearly does have the effect stated by the Tribunal. It expressly states that retrospective approval "… shall have the same effect
(Page 39)
- for all purposes as if it has been given prior to the commencement or carrying out of the development …" (my emphasis).
172 In Kouflidis v City of Salisbury (1982) 29 SASR 321 the appellants had applied to the City of Salisbury in 1973 for consent to use a building attached to their residence for the purpose of selling greengroceries. Consent was refused. In 1975 they applied for consent to a proposed use as extensions and renovations to existing residential premises. Consent was given. There was no mention of any commercial use and the appearance was for a garage or carport. The appellants immediately put the building to the very use for which consent had been refused two years earlier. That was unlawful. The Council instituted a prosecution for use of the land in breach of the planning regulations. That prosecution had been adjourned pending the outcome of the planning appeal.
173 King CJ pointed out an application for consent under the Planning and Development Act 1966 (SA) was necessarily an application for consent to the future use of the land. There could be no ex post facto consent to use which had already occurred. Consequently, an application for consent to use land could have no bearing upon the liability of the applicant in the pending prosecution in respect of the prior unlawful use.
174 On the question whether that past unlawful use was a relevant factor on the consent application before the Planning Appeal Board, his Honour said (at 323 - 324):
"In my opinion, moreover, the past unlawful use is not a relevant factor in determining whether consent should be granted. That decision should be made upon the planning considerations envisaged by the Act and Regulations irrespective of the past or continuing conduct of the applicant. I do not think that there is any warrant in the Act or Regulations for refusing or deferring an application or appeal by reason of the unlawful conduct of the appellant.
The learned Judge in the Land and Valuation Court was rightly concerned with the activities of a person 'who, cynically and fraudulently, changes the use of his or her land, and who hopes by doing so, to present planning authorities with a fait accompli, and thus to extract a planning consent to the changed use'. His Honour posed the question: 'How should such a person fare when his or her application comes to be considered at the administrative and judicial level?' the answer, it seems to me is
(Page 40)
- that the unlawful use should be ignored. It does not enter into the planning considerations upon which the planning decision must be made. The punishment of the unlawful conduct should be left to criminal proceedings. The supposed fait accompli should not be recognized as such. The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use.
Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularized leaving the past unlawful conduct to be punished by penal sanctions. Refusal to entertain an application which an unlawful use continues might result in a pointless impasse. A landowner who maintained, contrary to the planning authority's view, that his use of the land did not require consent, but who was willing to seek consent to avoid conflict, would be unable to obtain consent unless he first desisted from the disputed use, perhaps closed his business. If refusal to consider the application were confined to cases of cynical, fraudulent or manipulative conduct, the planning authority and the Planning Appeal Board would be required to inquire into and decide whether the conduct in a particular case answered that description. I do not think that a planning authority such as a Council or an administrative appeals tribunal such as the Board is equipped by its constitution or procedures to deal with allegations of improper motives. I think that the most expedient course, and that indicated by the Act and Regulations, is for the administrative authorities and the courts to deal with the planning application on its planning merits, ignoring any arguments based directly or indirectly upon
(Page 41)
- unlawful use and leaving the punishment of the unlawful conduct to penal proceedings."
175 Kouflidis was followed by Bignold J in Ireland v Cessnock City Council (1999) 110 LGERA 311. In that case the applicants had constructed a large farm shed either without necessary development consent and building approval having been obtained or, more probably, contrary to the terms of the necessary consent and building approval. Enforcement proceedings had been brought by the Council against the applicants. The mandatory order for demolition of the building was stayed to provide an opportunity for the planning law position to be regularised. Bignold J allowed the appeal and directed the Council to issue a building certificate. In reaching that conclusion his Honour was influenced by a number of considerations, including the opinion that had the applicants sought the relevant consent for construction of the building, the necessary approvals would probably have been granted. Furthermore, since that time, the Local Government Act 1993 (NSW) had been amended so that approval was no longer required for the erection of the building.
176 The Council's case against the issue of the building certificate was essentially concerned with the fact that the building had been erected unlawfully and that in so proceeding, especially after having been warned to stop building work, the applicants acted deliberately "flouting both the law and the legitimate requirements of the consent authority". As to that, his Honour considered the proper approach to be taken to the available discretion will generally be that outlined by King CJ in Kouflidis, namely to leave to the criminal law, the punishment of the unlawful conduct involved in the erection of the building and to determine the instant application on the merits, but taking care not to allow the wrongdoer to benefit from his wrongdoing.
177 His Honour was also mindful that the provisions of the Environmental Planning and Assessment Act 1979 (NSW) ("the NSW Act") expressly allowed a building certificate to be issued in a case such as that before him so as to regularise a breach of the planning law and that in any event the applicants had in fact already been punished for their wrongdoing, there having been a conviction and fine imposed in the Local Court and an order that the applicants pay the costs of the proceedings for a demolition order.
178 In Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor (2000) 111 LGERA 422, Bignold J was dealing with
(Page 42)
- applications by a Council for declaratory and injunctive relief against the builder and a developer of a dwelling site for breach of the NSW Act. His Honour found the respondents guilty of relevant misconduct by what he described as "… blatant and cavalier disregard of the Council's authority and of the planning laws and in their aggressive and antisocial conduct directed towards the neighbouring residents who were legitimately protesting that the respondents were consistently and wilfully deviating from the approved plans."
179 His Honour considered such conduct to be relevant to the exercise of the Court's discretion. He held that (at [77] - [78]) that:
"77. … the reasoning in Kouflidis (which has been consistently applied by this Court in the exercise of its comprehensive appellate jurisdiction embracing planning appeals, building appeals, demolition order appeals and building certificate appeals) does not in my judgment, apply to misconduct of a party who seeks the favourable exercise of the court's judicial discretion under the EP & A Act, section 124.
78. In the context of the exercise of the statutory discretion conferred by section 124 which is analogous to the equitable remedy of injunction in aid of the enforcement of public law (cf Enfield City v Development of Assessment Commission (2000) 199 CLR 135; 106 LGERA 419) the conduct of the parties will generally be a relevant consideration in the exercise of the judicial discretion".
180 Willoughby does not afford any support for the proposition that he conduct of a proponent is a relevant consideration on an application for retrospective development approval under the present Scheme. Indeed, in its reference to the "consistent practice" of the Land and Environmental Court of New South Wales on planning appeals, it goes entirely the other way.
181 Ultimately, I think the position must be as King CJ explained it in Kouflidis, notwithstanding the different provisions of the Scheme which apply here. It may well be (although for present purposes I do not need to decide, and do not do so) that a retrospective approval under cl 3.27.1 would operate to preclude any prosecution or other action in respect of a construction originally without, or contrary to, planning approval. But be
(Page 43)
- that as it may, the fundamental position remains that a development application under the Scheme is an application for planning approval and the only considerations relevant to that are planning considerations, which relate to whether the proposed development is appropriate to the locality and in accordance with the objects of the Scheme and the objectives of the R Codes. The conduct or motivation of the proponent are not such considerations - and neither the Council nor the Tribunal is equipped to deal with allegations of that nature.
182 This conclusion is reinforced by the fact that a development approval is not a personal right, but runs with the land. It is a right in rem, which binds the world (Ocean View Plaza Pty Ltd v WA Planning Commission [1999] WATPAT 5). A parcel of land in respect of which a development application has been approved may be sold before any construction takes place. In such a case the approval goes with the land. It would be anomalous for an approval which attaches to the land itself, to be refused because of suggested unlawful conduct or improper motive on the part of the owner, if the proposed development otherwise complied with all relevant planning requirements or could do so with appropriate waiver or variation.
183 The attempt by the appellant to characterise the circumstances in which the house came to be erected without development approval as relevant because they bear on orderly and proper planning, must be rejected as overstating the concept of planning.
184 This ground accordingly also fails.
Conclusion
185 As none of the appellants' grounds have been made out the appeal must be dismissed.
(Page 44)
16
7
1