Lynn and City Of Joondalup
[2006] WASAT 286
•21 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: LYNN and CITY OF JOONDALUP [2006] WASAT 286
MEMBER: MR L GRAHAM (SESSIONAL MEMBER)
HEARD: 5 JULY 2006
DELIVERED : 21 SEPTEMBER 2006
FILE NO/S: DR 128 of 2006
BETWEEN: DAVID LYNN
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Retrospective planning approval - Natural ground level - 'New' retaining wall - 'Original' retaining wall - Residential Design Codes of Western Australia 2002 - Amenity - Visual amenity - Pre-existing development - Finished floor level - Performance criteria - Acceptable development provisions
Legislation:
City of Joondalup District Planning Scheme No 2
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374(1)
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002, cl 3.6.1, cl 3.6.2, cl 3.7, cl 3.8.1
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr C Brady (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: City of Joondalup
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review by David Lynn was lodged against a decision of the City of Joondalup to refuse an application for retrospective planning approval for the construction of a 'new' retaining wall at the rear of the property.
In examining this matter the Tribunal had regard to the relevant provisions of the Residential Design Codes of Western Australia 2002; particularly in regard to the interpretation of 'natural ground level' and such matters as site works and privacy. The effect of the already built retaining wall and associated fill on the amenity of adjoining residents, and the likely effect on their visual amenity if a patio was to be built on the elevated land, was also examined.
In the view of the Tribunal the weight of argument falls in favour of the respondent and remedial works will be required to bring the existing development into compliance with the relevant codes and standards.
The application for review is dismissed and the decision under review is affirmed.
Introduction
The application for review, dated 19 April 2006, was lodged with the Tribunal by David Lynn (applicant) against the decision of the City of Joondalup (respondent) on 31 March 2006, to refuse an application for retrospective planning approval, dated 8 November 2005, for the construction of a 'new' retaining wall at the rear of the property at 14 Mooring Crescent, Ocean Reef.
The reasons for refusal were:
" … The decision was made for the following reasons:
(a)retaining and fill to a height of 1.18 metres above natural ground level is considered not to meet the performance criteria of Clause 3.6.2 of the Residential Design Codes 2002.
(b)the cone of vision variation of 500 mm in lieu of 7.5 metres is considered not to meet the performance criteria of Clause 3.8.1 of the Residential Design Codes 2002."
On 6 June 2006, a further advice was issued by the respondent to correct an omission in the advice of 31 March 2006. The effect of this was to add to part (a) only (as underlined) of the earlier refusal to read:
"(a)retaining and fill to a height of 1.18 metres above natural ground level is considered not to meet the performance criteria of Clauses 3.6.1 and 3.6.2 of the Residential Design Codes 2002 … "
Subject land
The subject land can be described as Lot 217 on plan number 13363, volume 1637, folio 685. It is 694 square metres in area.
There is an existing two storey residence on the property with a swimming pool at the rear. The natural slope of the land is to the west with the highest point at the approximate north‑east corner and the lowest point at the approximate south‑west corner.
Legislative framework
The subject land is zoned 'urban' in the Metropolitan Region Scheme (MRS) and 'residential' in the City of Joondalup District Planning Scheme No 2 (the Scheme). It has a density coding of 'R 20'.
Of importance in the consideration of this matter are the Residential Design Codes of Western Australia 2002 (the Codes).
Respondent's position
The respondent's position is outlined in their Statement of Issues, Facts and Contentions dated 6 June 2006. They broadly argue:
(a)The retaining wall and fill do not maintain the natural impression of the site, and have created the potential for overlooking into the outdoor living area of an adjoining property.
(b)The retaining wall has not been adequately set back so as to ameliorate the impacts of building bulk and interference with privacy on the adjoining property.
(c)The provision of vertical screening above the retaining wall, to prevent overlooking into the adjacent property, would adversely impact the visual amenity of the adjoining neighbour's outdoor living area.
(d)The existing development does not meet the objectives of design Elements 6 and 8 of the Codes; specifically clauses 3.6.1, 3.6.2 and 3.8.1.
Applicant's position
The applicant's position is outlined in a letter from David and Helen Lynn dated 20 June 2006. They broadly argue:
(a)The 'new' retaining wall was built without the necessary approvals because it was believed that, due to it being an extension of an existing wall, that new approvals were not required.
(b)The objection lodged with the respondent by the rear neighbour contains false and misleading statements; namely:
(i)A patio has not been constructed without Council approval.
(ii)The unauthorised retaining wall has not significantly raised the rear garden area; it has only extended the existing retaining area by 2.84 metres.
(iii)The retained area and proposed patio has not created a direct view to the children's bedroom of our neighbour's property. The full second storey can be clearly seen from any level of our property.
(v)The enclosed and private gardens the neighbour refers to is questionable, as there is very little vegetation surrounding his property.
(c)Whatever is considered necessary to gain privacy for ourselves and neighbour by way of vegetation or latticed privacy screening will be provided.
(d)The respondent acknowledges that the natural contours fall considerably but does not acknowledge that there are two natural ground levels as a result of pre-existing developments on the property. The proposed retaining wall extends the 'natural ground level' of the pre‑existing development as defined in cl 3.7 of the Codes which states:
" 'natural ground level' may be taken as the levels resulting from development carried out as an approved part of a land subdivision or as the result of a pre‑existing development; … "
(e)The raised ground level does not significantly alter the natural contours of the site or alter the visual impression of the site.
(f)If the pre-existing developments were not taken into consideration and the 'fractured' ground level was to be 'smoothed out' to determine the 'deemed' natural level, the wall would calculate at 630 millimetres above the 'deemed' natural level of 98.75, which is only 130 millimetres above what is allowed under the Codes.
(g)The delegated authority report of the respondent argues that the retaining wall and fill has created the potential for significant overlooking onto the adjoining property's outdoor area. However, the wall and fill only extends an existing area that has a gradient and finished floor level of 99.38 which is well above the adjoining property, rather than creating a raised level that did not previously exist.
(h)If the 2.84 extended area is screened by vegetation to complement what currently exists along the existing 11 metre retained pool area there will be no detrimental impact on the adjoining property.
(i)Photographs taken from the subject land by the respondent show an unfair and misleading view of the adjoining property taken from a position hard against the fence line. As the proposed patio would be 1 metre back from the fence line the view into the adjoining property would be lessened.
(j)The performance criteria of cl 3.6.2 and cl 3.8.1 have been met. However, it is unacceptable that cl 3.6.1 was included in an amended notice of development refusal of 6 June 2006; well after lodging the application for review.
Planning issues
The principal planning issues are:
(a)Would retrospective approval to the 'new' retaining wall and fill to a height of 1.18 metres above 'natural ground level' meet the objectives of design elements 6 and 8 and the performance criteria of clauses 3.6.1, 3.6.2 and 3.8.1 of the Codes?
(b)If the answer(s) to (a) are in the negative could an approval, with appropriate conditions, still proceed without negatively impacting on the adjoining property at the rear at 4 Jury Close, Ocean Reef.
Assessment of proposal
Background
In the witness statement dated 21 June 2006 of Bradley James Pawlenko, a qualified town planner and senior planning officer with the City of Joondalup, he advised:
(a)The initial building licence approval for the house was granted in 1985. The approval indicated no changes to ground levels.
(b)A building licence for a new swimming pool was approved on 17 January 2000. There are no records of the original retaining walls surrounding the pool area receiving a building licence from the city.
(c)An application for retrospective planning approval to commence development dated 8 November 2005 for a 'retaining wall' was lodged with the City of Joondalup.
(d)The work for the 'new' retaining wall and associated fill had been undertaken without the necessary approvals.
(e)The unauthorised works came to the attention of the respondent when an application for a building licence dated 22 September 2005 for a patio at the rear of the subject's site was received, and a subsequent site inspection was undertaken by a building surveyor.
In a letter to David Lynn dated 4 October 2005 from the respondent it was advised:
(a)A site inspection was carried out by the City's Area Surveyor on 3 October 2005.
(b)The inspection revealed a retaining wall had been constructed without the issue of a building permit.
(c)Section 374(1) of the Local Government (Miscellaneous Provisions) Act1960 (WA) states:
"No person shall ‑
(a)commence or proceed with a building on, land in a district; … "
until Council has approved the works with the issue of a building licence.
(d)Remedial works may be required to bring the structures into compliance with the relevant codes and standards.
A letter to Pearcey Constructions dated 4 October 2005 from the respondent advised:
(a)The unauthorised retaining wall and proposed patio do not meet the acceptable development standards of the Codes.
(b)The application is to be brought into line with the acceptable development standards.
(c)Alternatively, the exercise of discretion can be sought from the respondent by having regard to the performance criteria. In this circumstance full justification must be given by addressing each performance criteria where the acceptable development standard has not been met.
On 19 October 2005, the applicant advised the respondent that:
(a)They were unaware that Council approval would be required to extend the existing retaining wall.
(b)A structural engineer has advised that the wall is structurally adequate.
(c)An application will be submitted for retrospective approval.
The current application
In the witness statement of Mr Pawlenko he explains:
(a)The plans the subject of the proposal illustrate a 'new' limestone retaining wall and associated fill with a finished floor level (FFL) of 99.38.
(b)The natural ground level contours of the development area fall from 99.75 FFL to approximately 98.20 FFL, resulting in a wall height of 1.18 metres (99.38 FFL minus 98.20 FFL).
(c)The originally submitted plans depicted the retaining wall as having a setback of 0.5 metres from the common boundary; however, amended plans dated 8 June 2006 depict the wall as having a 'nil' setback.
In the application for review the matter of contours is addressed in this way:
"However, even if the 'natural' contours of the site are smoothed out to arrive at a 'deemed natural level' we believe the retaining wall height would be within the acceptable 0.5m height above natural ground level."
However, in a letter to the Tribunal dated 20 June 2006, and as outlined in [13(f)] above, the applicant now argues that the height of the wall would calculate at 630 millimetres above the 'deemed' natural level of 98.75 FFL which is 130 millimetres above the 0.5 metres allowed under the Codes.
In the view of the Tribunal, and based on the applicant's amended plans of 8 June 2006 and photographic information entered into evidence by the parties, the following is relevant:
(a)The natural contours at the rear of the subject land appear to range from approximately 99.50 at the highest point and slope downwards towards the west to approximately 97.50 at the lowest point. This is a fall of some 2.0 metres.
(b)The pool and the top of the 'original' retaining wall were constructed at 99.38 FFL.
(c)The top of the 'new' retaining wall, which is positioned further to the west, maintains the same level as the 'original' wall at 99.38 FFL.
(d)The bottom of the 'new' retaining wall is shown as 98.25 FFL which indicates a wall height of some 1.13 metres (99.38 FFL minus 98.25 FFL).
(e)The overall effect of positioning the 'new' retaining wall further to the west at 99.38 FFL on a site that slopes towards the west is to create what appears as an elevated area of retaining wall and fill.
(f)As part of the 'new' retaining wall runs along the common boundary towards the west, it extends the opportunity for additional lines of sight into the neighbouring property.
(g)The additional area of fill between the 'original' retaining wall and the 'new' retaining wall appears to be in the order of some 21 square metres.
As the amount of fill behind the street setback line within 1 metre of a common boundary clearly exceeds 0.5 metres, that aspect of the development can be assessed against the provisions of the Codes.
The issue of natural ground level
The Codes define 'natural ground level' as:
"The levels on a site which precede the proposed development, excluding any site works unless approved by the Council or established as part of subdivision of the land preceding development."
However, under 3.7 Element 7 – Building Height, the Codes introduce the concept of pre‑existing development in this way:
" 'natural ground level' may be taken as the levels resulting from development carried out as an approved part of a land subdivision or as the result of a pre‑existing development; …"
In the witness statement of Mr Pawlenko he explains:
"No site works have been approved by Council on the development site, nor have new levels been established through the subdivision of Lot 217."
In the applicant's letter of 20 June 2006 it is argued that the existing swimming pool and the 'original' retaining wall represent pre‑existing development and
"… the proposed retaining wall extends the natural ground level of the pre‑existing development …"
During the cross‑examination of Mr Lynn, Mr Brady, a senior planning officer for the respondent, explained:
"The definition of natural ground level makes no reference to extending existing retained areas."
In the view of the Tribunal 'natural ground level' is that which existed before subdivision and development but, as shown on page 75 of the Codes document, where there is a situation of undulating land with a general upward or downward slope, such as exists with the subject land, a 'deemed' natural ground level is determined for the purposes of its calculation.
Again, as stated in the Codes:
"It has become common practice to provide level sites with boundary retaining walls at subdivision. In these cases, the levels so established at subdivision are deemed to be natural ground levels."
That situation does not apply in this case, but the applicant's argument that the pre‑existing development at 99.38 FFL has only been extended, and that the natural topography has been retained, needs to be examined.
In the view of the Tribunal it would be manifestly wrong, in the interests of orderly and proper planning, to allow extensive retaining walls near a property boundary with associated backfill to change the levels of a site, and then claim that the new levels were 'natural ground level'. If this was so then the 'new' retaining wall could be moved even further to the west at 99.38 FFL with all the associated consequential effects of overlooking onto the neighbouring property.
As explained on p 71 of the Codes:
"… filling above natural ground level, especially where, as is normal, it results in replacing a natural slope with level ground and retaining walls, is usually visually prominent.
…
In addition, any significant filling of land is likely to create overlooking and possibly exacerbate overshadowing. For these reasons, retaining walls should be treated as through they were building walls, and set back from property boundaries accordingly."
On the question of 'natural ground level' the Tribunal is unable to support the applicant's argument. The term 'pre‑existing development', in the context of 'natural ground level', is meant to relate to building development, and not to a below ground swimming pool with an associated retaining wall.
The Codes – site works and privacy
Under Design Element 3 (Site Works Requirements) of the Codes the objective is:
"To preserve the sense of the natural topography of the site and locality with a view to the protection of streetscape and the amenity of adjoining properties."
In the context of this review it is the preservation of the natural topography and the amenity of the adjoining residents that is of particular importance.
Under cl 3.6.1 (Excavation or Fill) the Acceptable Development Provision A1.4 states:
"Filling behind a street setback line and within one metre of a common boundary:
•not more than 0.5m above the natural level at the boundary; or
•retained in accordance with A2."
As pointed out in [23] above, the amount of fill behind the street setback line within 1 metre of the common boundary clearly exceeds 0.5 metres, and so attention must also be drawn to the Acceptable Development Provision A2 which relates to cl 3.6.2 (Setback of Retaining walls).
Under A2 the provision states:
"Retaining walls set back from common boundaries in accordance with the setback provisions of Table 1, Table 2 and Figure 3."
In this respect Mr Pawlenko, in his witness statement, argues that a retaining wall must be set back 1.8 metres from a common boundary, as opposed to the 0.0 metres setback currently constructed. He then argues that the Acceptable Development Provision A 2 has not been met.
What has happened on site is that the 'new' retaining wall has extended some 2.75 metres from the 'original' retaining wall along the common boundary, and then extends further towards the west in an arc formation to contain the new fill.
In the view of the Tribunal the 'new' retaining wall does not meet the relevant Acceptable Development Provisions under cl 3.6.1 and cl 3.6.2. The development must then be assessed against the relevant Performance Criteria.
Under cl 3.6.1 (Excavation or Fill) the Performance Criteria P 1 states:
"Development that retains the visual impression of the natural level of a site, as seen from the street or other public place, or from an adjoining property."
The difficulty the Tribunal has with P 1 is that it appears to be at odds with the overall objective of Element 6 – Site Works to " … preserve the sense of the natural topography of the site …" because it assesses the development from outside the subject site and not from within.
In this sense it must be said that the 'new' retaining wall cannot be seen from the street or from the adjoining property which, because of the fall in contours, is positioned well below the subject land. The development therefore appears to meet the Performance Criteria P 1.
Under cl 3.6.2 (Setback of Retaining Walls) the Performance Criteria P 2 states:
"Retaining walls designed or set back to minimise the impact on adjoining property."
As already explained the 'new' retaining wall has been positioned for part of its length along the common boundary and has certainly not been set back to minimise its impact on the adjoining property.
The effect of the 'new' retaining wall on a site that falls to the west is to extend the filled area westwards from which views into the adjoining property can take place. In other words, the privacy of the adjoining residents is compromised even further than that which existed from the 'original' retaining wall.
Under Element 8 (Privacy) of the Codes the overall objective is:
"To ensure a reasonable level of visual and acoustic privacy for both new development and adjoining residents."
Visual privacy is assessed by way of a line of sight setback distance within a so‑called 'cone of vision'.
Under the Acceptable Development Provisions 3.8.1 (Visual Privacy) A 1 it states:
"Major openings to active habitable spaces or their equivalent which have a floor level more than 0.5m above natural ground level and positioned so as to overlook any part of any other residential property behind its street setback line, to comply with at least one of the following:
(i)are set back, in direct line of sight within the cone of vision, from the boundary a minimum of
…
•7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandahs and the like); or
(ii)are provided with permanent vertical screening to restrict views within the cone of vision from any major opening of an active habitable space; or
(iii)are provided with permanent horizontal screening or equivalent, preventing direct line of sight within the cone of vision to ground level of the adjoining property if closer than 25m to the opening or equivalent."
As only one of the above options talks about 'outdoor' active habitable space, the development is unable to meet the 7.5 metre setback from the boundary of the adjoining property.
Under the Performance Criteria (Visual Privacy) P1 it states:
"Avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential properties taking account of:
…
•the provision of effective screening; and
•the lesser need to prevent overlooking of extensive back gardens, front gardens or areas visible from the street."
Although this last criterion appears to downplay the problem of overlooking into back gardens, it is only written relative to the greater problem of overlooking through windows or from balconies or decks of a residential building.
The criteria do, however, provide for the provision of effective screening to avoid direct overlooking of an outdoor living area of an adjoining residential property.
The question of amenity
In his opening remarks to the Tribunal, Mr Brady, for the respondent, advised:
"From the site meetings that have occurred on site, it's evident that the development does not provide an adequate level of visual privacy to the adjoining owner. The appellants argue that the provision of privacy screening from the proposed patio will address the loss of privacy for the neighbour. It's the city's position that the overall building bulk of the development will adversely impact on this neighbour and the visual amenity of their outdoor living area; …"
In his witness statement, Mr Pawlenko, for the respondent, concluded:
"The dividing fence when measured from inside the adjoining property is approximately 1.85m in height, and is situated above a retaining wall approximately 300mm in height.
…
It is my opinion that the provision of additional privacy screening above the dividing fence would be visually intrusive due to its size and positioning and will have an adverse impact on the amenity of the adjoining property."
In a series of questions and answers between Mr and Mrs Lynn at the hearing the following was stated:
"Mr Lynn: On the pool level the maximum height [of the dividing fence] is 1530 [millimetres] and the minimum at the end of the existing retaining wall was only 800 [millimetres] high.
Mrs Lynn: That seems that we don't have a standard 1.8 metre fence on our side?
Mr Lynn: Correct.
Mrs Lynn: Okay. So if we were to extend the height of our fence to a 1.8 metre high, would that provide privacy for ‑ ‑ from our property to our adjoining neighbour's property?
Mr Lynn: Yes, it would and if we continue the existing lattice work with the natural vegetation that is growing through it at the moment, which is quite evident from both sides of the fence, I think that would solve the problem significantly and be of better visual impact for both parties."
In another response Mr Lynn advised:
" … we firmly believe that either screening along the fence, with the vegetation to be trained to grow through it and take over that, or even if we come back off the metre that will match where the proposed patio is to be erected and we have vegetation there, that would solve the screening problem, the visual problem."
In the view of the Tribunal there is little doubt that if the dividing fence was to be raised to 1.8 metres along its full length, together with appropriate vegetation, and the proposed patio was to be screened together with additional vegetation in the 1 metre gap between the patio and the fence, that an effective visual screen would be created between the two properties. However, it is always possible to create such barriers between neighbours by appropriate screening and vegetation.
What is not always possible by such action is to protect the visual amenity of the neighbouring property, and in this case what would result from such action by the applicant would be an elevated fence coupled with a 3.1 metre high patio positioned on an elevated platform of fill within 1 metre of the rear fence.
From the photographic evidence available to the Tribunal, particularly those submitted by Mr Pawlenko and dated 20 June 2006, the Tribunal is satisfied that the visual amenity of the adjoining neighbour would be adversely affected by the proposed patio development to be built on the new retained area of fill.
Conclusion
The application for review was lodged against a decision of the respondent to refuse an application for retrospective approval for the construction of a 'new' retaining wall at the rear of the subject land.
In examining this matter, the Tribunal has had regard to the interpretation of 'natural ground level' and the provisions of the Codes as they relate to Element 6 (Site Works) and Element 8 (Privacy). The likely effect on the visual amenity from the adjoining property was also examined in the event that a patio was constructed on fill behind the new retaining wall.
On the question of 'natural ground level' the applicant argues that the existing swimming pool, and the 'original' retaining wall needed to support it, represents pre-existing development and that the 'new' retaining wall merely extends the 'natural ground level' of the pre-existing development.
The respondent on the other hand argues that the definition of 'natural ground level' is clear in the Codes, and no reference is made to extending existing retained areas.
In the view of the Tribunal the Codes are clear in that retaining walls should be treated as building walls and set back from property boundaries accordingly. In that sense it would be manifestly wrong to allow retaining walls with associated backfill close to a property boundary, and then argue that the new levels were 'natural ground level'. Such an argument, if accepted, would allow the 'new' retaining wall to be moved even further to the west with all the associated consequential effects of overlooking onto neighbouring property.
In examining the Acceptable Development Provisions of cl 3.6.1 and cl 3.6.2 of Element 6 (Site Works) of the Codes it is clear from the information before the Tribunal that the amount of fill within 1 metre of the common boundary behind the 'new' retaining wall exceeds the allowable 0.5 metres above 'natural ground level', and that the wall has not been set back the required 1.8 metres as explained by Mr Pawlenko in his evidence.
Under the relevant Performance Criteria for cl 3.6.1 (Excavation or Fill) the Tribunal would acknowledge that the requirements appear to have been met, but that is only because the development is to be assessed from outside the subject land and not from within it.
However, under cl 3.6.2 (Setback of Retaining Walls) it is clear that the 'new' retaining wall does not meet the Performance Criterion to minimise the impact on the adjoining property, and that the 'new' retaining wall does compromise their privacy and amenity.
On the question of privacy, as covered in Element 8 (Privacy) of the Codes, the concept of effective screening to avoid direct overlooking is introduced.
In taking that issue further the Tribunal examined the question of amenity and has concluded that the 'new' retaining wall and associated fill at 99.38 FFL does, by providing an extended area for overlooking, compromise the amenity of the adjoining property. Also, if the proposed patio was to be built at that level and in the location proposed, its sheer bulk would compromise the visual amenity of the neighbours on the adjoining property.
What has occurred in this case, and as acknowledged by the applicant, is that the 'new' retaining wall and associated fill have been built in order to allow extensive views to the west. This is an understandable aspiration providing others are not disadvantaged in the process, and it is for this very reason that the 'fill', 'setback' and 'privacy' provisions of the Codes have been adopted by both State and Local Government.
In the view of the Tribunal, the weight of argument falls in favour of the respondent, and their decisions of 31 March 2006, and 6 June 2006 were correct, and that remedial works will be required to bring the structures into compliance with the relevant codes and standards.
Such compliance would still allow some fill to the benefit of the applicant, but without compromising the amenity of the adjoining property to the current degree.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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