MATHER and SHIRE OF NORTHAMPTON - [2011] WASAT 100

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MATHER and SHIRE OF NORTHAMPTON [2011] WASAT 100

MEMBER: MR J JORDAN (MEMBER)

HEARD: 20 JUNE 2011

DELIVERED : 29 JUNE 2011

FILE NO/S: DR 124 of 2011

BETWEEN: JAMES MATHER
TRACY MATHER
Applicants
AND
SHIRE OF NORTHAMPTON
Respondent

Catchwords:

Town planning - Development - Refusal Application for retrospective planning approval - 1.8 metre high front fence - Streetscape requirements of Residential Design Codes of Western Australia - Local planning policy on front fences - Application of policy - Precedent - Streetscape

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008)
Shire of Northampton Town Planning Scheme No 9 - Kalbarri Townsite, cl 5.5, cl 6.2, cl 6.2.5, cl 6.2.5 A5, cl 6.2.5 P5, cl 6.5, Element 6.2
State Administrative Tribunal Act 2004 (WA), s 54(10)

Result:

Application for review dismissed
Decision of Shire of Northampton to refuse to grant retrospective planning approval for front fence affirmed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr G Keeffe (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: Shire of Northampton

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr James Mather and Mrs Tracey Mather sought retrospective planning approval for a 1.8 metre high corrugated iron fence erected across approximately half of the front of their residential lot in Crocos Circuit, Kalbarri.
The Shire of Northampton refused to grant planning approval because it considered the fence to be in conflict with the policy requirements for visually permeable front fencing in Kalbarri. The Council was also concerned that an approval would set an undesirable precedent for similar fences to the detriment of streetscapes and the amenity of the residential area.
The Tribunal delivered an oral decision following a viewing of the site and locality and a hearing. The Tribunal determined that the proposed fence did not satisfy the circumstances required for setting aside the established policy for front fences in Kalbarri. The Tribunal formed the view that concerns raised about exposure to wind and the character of the local streetscape were not sufficient to distinguish the matter and an undesirable precedent would be established.
The Tribunal dismissed the application and affirmed the refusal.
The following are the reasons for the decision given orally at the hearing and edited in minor respects to aid clarity.

Introduction

These proceedings involve an application for review brought by Mr James Mather and Mrs Tracey Mather (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal of the Shire of Northampton (Shire) of an application for retrospective planning approval for a front fence at No 30 (Lot 934) Crocos Circuit, Kalbarri (site).
On Monday, 20 June 2011, the Tribunal viewed both the site and Crocos Circuit accompanied by the applicants and representatives of the Shire. The parties were unable to resolve the matter between them. The parties both agreed the member continue to hear the matter as provided for at s 54(10) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Site and locality

The site is a residential lot of 752 square metres with a frontage of 21.5 metres to Crocos Circuit at the southern boundary. Crocos Circuit is a loop road which is effectively a circular culdesac.
A single storey house on the site is set back about 6.5 metres from the front boundary. At the eastern side of the house is a gravel driveway to the rear. Next to the gravel driveway is a double width concrete driveway to a double garage. Across the front of the house adjacent to the garage are two sets of windows to two front habitable rooms with the front door of the house between them.
Between the driveway and the western boundary of the site across the front of the house is an 11 metre long, 1.8 metre high corrugated iron front fence with a galvanised finish. The ripples in the iron are horizontal. The fence also extends as a return of 2.4 metres back towards the house alongside the driveway.
The houses on the lots adjoining in this section of Crocos Circuit are similar in design to the house on the site. The house to the west has no front fence. The two houses to the east have front fences solid to 1.2 metres with visually permeable panels between columns to about a height of 1.8 metres.
On the south side of Crocos Circuit opposite the site are the side fences of two houses which face east and west. The western facing house has a 1.8 metre high fibre cement fence facing the site along the boundary from the front of that lot to a brick single garage with a roller door at the rear. The eastern house lot has a pale green metal fence about 2 metres high extending to a metal shed with a roller door at the rear of the lot. The verge of this eastern lot is landscaped with shrubbery and lawn.

Planning framework

The site and surrounding lots are zoned Residential R17.5 under the Shire of Northampton Town Planning Scheme No 9 Kalbarri Townsite (TPS 9). Clause 5.5 of TPS 9 requires that development of land for residential purposes conform to the provisions of the Residential Design Codes of Western Australia (2008) (Codes). Clause 6.5 of TPS 9 sets out matters to be taken into account when considering an application for planning approval. These include:
(a)the nature of the proposed development in relation to the development either existing or proposed on adjoining land;
…
(f)the existing and likely future amenity of the locality within which the development is to take place in particular and the area generally;
…
(h)any approved statement of planning policy of the Commission;
(i)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
…
(n)any other matters relating to town planning, urban design and public interest.
Element 6.2 of the Codes is concerned with streetscape requirements and, in particular, at cl 6.2.5 with 'street walls and fences'. Clause 6.2.5 A5 of the Codes sets out acceptable development provisions for front fences. These are:
Front walls and fences within the primary street setback area that are visually permeable 1.2 m above natural ground level.
The performance criteria for street walls and fences at cl 6.2.5 P5 of the Codes state:
Front walls and fences to promote surveillance and enhance streetscape, taking account of:
•the need to provide protection from noise and headlight glare where roads are designated as primary or district distributors or integrator arterials; or
•the need to provide screening to the front setback; or
•the need to provide privacy to north[-]facing outdoor living areas.
The Shire has adopted a local planning policy 'Street walls and front fences in Kalbarri residential areas' (Front Fences Policy). The objective of the Front Fences Policy is:
To provide clear direction as to circumstances under which Council may approve street walls and fences in accordance with the Performance Criteria (No 5) of the Residential Design Codes …
At cl 4.1.3 of the Front Fences Policy, it states:
Council will allow a street wall or fence up to 1.8 m high provided the wall or fence:
(a)has contrasting forms of construction (eg brick piers with contrasting infill or landscaping recesses) or be finished with a colour acceptable to Council so that in the opinion of Council the wall or fence enhances (or at the very least does not detract) from the streetscape;
(b)has a length of no more than 50% of the total frontage of the lot and is located from one side only (ie no 'middle' fencing);
(c)is located so that at least one habitable room window of the dwelling has a clear view of the street; and
(d)has a truncation of 1.5 m where it adjoins a driveway.

Proposed development and the refusal

The applicants applied to the Shire for retrospective planning approval of the front fence erected at the site. The Shire's reasons for refusing the application are set out in its letter to the applicants dated 18 March 2011. The Shire refused the application because (in summary) it considered the front fence:
i)does not meet the performance criteria of cl 6.2.5 P5 of the Codes;
ii)does not meet the criteria for a 1.8 metre high front fence at cl 4.1.3 of the Front Fences Policy;
iii)would likely create an undesirable precedent to the detriment of the streetscape and amenity of the residential area.

Discussion

The applicants emphasised the streetscape in the section of Crocos Circuit where their house is situated. They said they 'do not have a normal streetscape' because the southern side of the street consisted entirely of 1.8 metre high fences and garages with roller doors. The view from their front windows and their front yard was directly at the fibro fence opposite. They considered the front fence they want approved would not detrimentally affect this streetscape.
The applicants said that the plants in their front yard could not cope with the very strong southerly wind that blows in this locality. With the fence in place, they have been able to develop a native garden. The fence also stopped dust blowing in from vacant lots when front rooms of the house were open to the breezes in summer. A further consideration was that the fence shielded their front windows from views of vehicles and the patio lights in the backyard of the house across the road. The applicants said they would rather look at their landscaped front yard and their own fence than look at the fences over the road.
The applicants said a brick front fence would be too expensive and the fence erected is strong enough to withstand the wind and achieve their objectives. Other buildings and fences in Kalbarri were constructed of corrugated iron on the horizontal and they considered their fence visually acceptable.
Ms Katheryn Jackson, a town planner employed by the Shire appeared as a witness for the Shire. Ms Jackson said the fence did not comply with the acceptable development criteria at cl 6.2.5 A5 of the Codes and was assessed against the performance criteria at cl 6.2.5 P5. Ms Jackson submitted that the fence did not comply with the performance criteria of cl 6.2.5 P5 of the Codes because Crocos Circuit was not a district distributor or arterial road. She said the house faced south and the fence was not required to provide privacy to a north-facing private outdoor living area.
Ms Jackson also assessed the front fence against the criteria for allowing a front fence up to 1.8 metres high at cl 4.1.3 of the Front Fences Policy.
Ms Jackson said the fence did not have contrasting forms of construction as required by cl 4.1.3(a) of the Front Fences Policy. Mr Keeffe, the Chief Executive Officer of the Shire who also appeared, said that a fence would conform to cl 4.1.3(a) if it was of a consistent colour and was of acceptable materials and design. He acknowledged that corrugated iron was acceptable material for front fences in Kalbarri.
Ms Jackson said that, in respect to the other criteria, the fence was only slightly more than 50% of the frontage of the site, as required by cl 4.1.3(b) of the Front Fences Policy, but the fence did restrict to about 25% the view of the street from the habitable rooms at the front of the house in conflict with cl 4.1.3(c). Ms Jackson also pointed out that the fence did not include a truncation where it met the driveway, as required by cl 4.1.3(d) of the Front Fences Policy, and she considered this necessary for the purposes of clear vision for vehicles reversing from the site and for pedestrians approaching the site. Finally, Ms Jackson expressed the opinion that those building in this section of Crocos Circuit would have been aware of the side fences on the lots on the south side of the street.
The Shire included as a reason for refusal concern that approval of the fence would set an undesirable precedent for similar fences to the detriment of the amenity on streetscapes in the residential area. Ms Jackson said the Shire was concerned to make a decision in this matter, to not allow the 1.8 metre high front fence, consistent with the Tribunal's orders in DR 142 of 2006 Bramwell and Shire of Northampton (Bramwell). In Bramwell, an application for a 1.8 metre high fence across the southern side of a residential lot in front of a house was not approved. Mr Keeffe said the Shire had been consistent in the application of its Front Fences Policy in Kalbarri.
The applicants referred to two 1.8 metre high front fences near a corner in Crocos Circuit about 120 metres to the southwest of the site. The applicants also said that they considered their front yard was affected by the southern wind more than other front yards in the street. They insisted their application should be treated on its merits and would not set a precedent.
The Tribunal notes that the Shire has adopted the Codes and its Front Fences Policy to manage streetscapes and achieve a particular character for the residential locality within which the site is located. It is an established planning principle that only when particular circumstances warrant should a policy be set aside and development inconsistent with the policy allowed.
The Tribunal also notes that, to determine whether precedent is a relevant planning consideration, it is necessary to assess whether or not a proposed development is objectionable and whether there is more than a mere chance or possibility that there may be later undistinguishable applications in the locality.
The Tribunal has noted the applicants' submissions on why they consider their fence warranted support. The Tribunal has formed the view, however, that, while a view of side fences is not general in suburban areas, it is not unusual. The Tribunal believes that a view from a house to a side fence opposite, of itself, is not a basis for allowing a 1.8 metre high front fence to completely screen out that view. The Tribunal is concerned that such a basis for a 1.8 metre high front fence could be claimed by at least five other owners in this length of Crocus Circuit. The two other 1.8 metre high front fences in the locality referred to by the applicants are not considered by the Tribunal to establish a different local streetscape character to be copied as a basis for similar applications to the detriment of the character of the streetscape.
Similarly, while it may be to differing degrees of impact, the southerly wind would affect the front yards of all houses in this length of the street.
The Tribunal has formed the view that the proposed fence would be unusual as a front fence in the street and in the locality.
In short, the Tribunal has concluded that an approval might set an undesirable precedent for others to follow to the detriment of local streetscapes and character.
The applicants said they would have welcomed a suggestion of compromise when the Council considered the application in March 2011. The Shire, however, did not have before it any plans showing how the design of the fence might be varied when deciding the matter. At the hearing, the applicants made suggestions on verge landscaping and painting that might make the fence more acceptable. It would appear to the Tribunal, however, to be difficult to achieve the suggested level of the verge landscaping required and simply painting the fence would not appear to resolve the issue of non-compliance with the other policy requirements. The applicants did say at the hearing they might consider visually permeable inserts, but this was not their preference.
At the hearing, the Tribunal did not have in front of it any plans that illustrated how the existing fence might be adapted by inserting visually permeable panels. Without sufficient detail on how the fence might be adapted in this way, the Tribunal considered it was not appropriate to refer what was not more than an idea back to the Shire for reconsideration.
The Tribunal was encouraged by the comments of Mr Keeffe and Ms Jackson that the Shire would entertain an amended proposal that included solid corrugated iron to 1.2 metres then with visually permeable infill panels, of a material such as lattice, separated by 'columns' faced also with corrugated iron, to about 1.8 metres. The Tribunal would comment that it agrees with the Shire that a truncation at the corner of the fence and the driveway would be appropriate.

Conclusion

The Tribunal has concluded that, on the evidence before it, the application for review is to be dismissed. The Tribunal would encourage the applicants to consider closely how they might be prepared to modify the fence and submit to the Shire for consideration a plan for the fence amended to be consistent with the requirements of the planning framework.

Orders

1.The application for review is dismissed.
2.The refusal of the Shire of Northampton to grant retrospective planning approval for the 1.8 metre high front fence at No 30 Crocos Circuit, Kalbarri is affirmed.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER