MI CONSTRUCTION (WA) PTY LTD and CITY OF STIRLING
[2012] WASAT 232
•23 NOVEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MI CONSTRUCTION (WA) PTY LTD and CITY OF STIRLING [2012] WASAT 232
MEMBER: MR J JORDAN (MEMBER)
HEARD: 22 AUGUST 2012 AND 21 SEPTEMBER 2012
DELIVERED : 23 NOVEMBER 2012
FILE NO/S: DR 217 of 2012
BETWEEN: MI CONSTRUCTION (WA) PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development Refusal Application for retrospective planning approval High retaining wall on front boundary - Streetscape policy Relevance of other retaining walls in the street - Terraced retaining wall refused by respondent - No planning approval granted for wall when house originally approved Building licence issued for wall - Applicant proposing approval of development different from that before decisionmaker
Legislation:
City of Stirling Local Planning Scheme No 3, cl 8.1.1, cl 8.2.1(h), cl 10.2
Planning and Development Act 2004 (WA)
Residential Design Codes of Western Australia, cl 6.2, cl 6.2.1, cl 6.2.5, cl 6.4, cl 6.4.2, cl 6.6.1, Appendix 1, Table 1
Result:
Application for review allowed
Conditional planning approval granted for terraced retaining wall on front boundary and a 1.2 metre high visually permeable front fence
Summary of Tribunal's decision:
This matter involved a review of the refusal of an application for planning approval for a terraced retaining wall at the front boundary of a residential lot. A 1.8 metre high front fence was originally proposed to sit on top of the retaining wall.
The development was refused because it was considered not to comply with the standards for development and fill within the front setback of a residence or to comply with the local government's streetscape policy.
The applicant wanted approval for a straight retaining wall already built on the site, not the refused terraced retaining wall. The applicant said it believed that planning approval had previously been granted, a building licence had been issued and, in any event, the development was consistent with other front boundary retaining walls in the street.
The Tribunal determined that the straight front wall had not previously been approved, but there was a case for approval of the terraced retaining wall and a 1.2 metre high visually permeable front fence.
Category: B
Representation:
Counsel:
Applicant: Mr S Butler (Acting as Agent)
Respondent: Ms K Masuku (Acting as Agent)
Solicitors:
Applicant: MI Constructions (WA) Pty Ltd
Respondent: City of Stirling
Case(s) referred to in decision(s):
Bakker and City of Nedlands [2005] WASAT 106
Hawkins and City of Joondalup [2008] WASAT 64
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by MI Construction (WA) Pty Ltd (applicant) against the refusal by the City of Stirling (City or respondent) to grant planning approval for a terraced retaining wall on the front boundary and within the front setback of No 5 Panton Crescent, Karrinyup (site).
Site and locality
The site has an area of 736 square metres with a frontage of 22 metres to Panton Crescent at the northeastern boundary. The rear boundary is 14.08 metres. Across the front boundary, the site rises from RL (Reduced Level) 27.89 at the eastern end to RL 30.01 at the western end. The site also increases in elevation to RL 34.27 at the southwestern rear corner.
The site has been divided by fencing and retaining walls for the purpose of construction of two grouped dwellings. At the rear of the site is a vacant area of 385 square metres that includes a 4 metre wide access leg to Panton Crescent adjacent to the eastern boundary.
At the front of the site is a 350 square metre area on which has been built a two storey dwelling. The finished floor level of the dwelling is RL 31. Adjacent to the western boundary, a concrete driveway rises from the front boundary to a garage within the dwelling at RL 30.6. A retaining wall has been built across the front of the site from the driveway to the truncation at the access leg to the rear lot and then along the inside of the access leg. For ease of reference, the constructed retaining wall is referred to as a straight retaining wall in contrast to the 'terraced' retaining wall described below. Behind this retaining wall, the front yard of the house is filled to about RL 30.9.
The top of the retaining wall at the front boundary is shown as RL 30.828. The elevations show the retaining wall is 2.3 metres high at the truncation and 1.298 metres high at the driveway to the garage. By calculation, natural ground at the foot of the retaining wall at the truncation would be at about RL 28.528.
The front wall of the new house is set back about 5.8 metres from the front boundary, and the front porch with a balcony above is set back about 3.8 metres from the front boundary.
The retaining wall is built of blocks about 350 millimetres high which have the appearance of reconstituted limestone. On the retaining wall central to the truncation is a galvanised meter box with copper piping extruding from it.
About 70 metres west of the site is the junction of Panton Crescent with Gwelup Street. Panton Crescent extends over 500 metres from Gwelup Street south-east to Huntriss Road, which is at a lower elevation.
The street is mostly characterised by single dwellings interspersed with grouped dwellings arranged one behind the other. There are two curves in Panton Crescent, so it is not possible to get a vista of the whole street. The fall in elevation has resulted in some dwellings on the high side, or southwestern side, of the street having retaining walls across the site to provide a level building area, while other houses have front yards rising naturally from the verge, with the house built on a substantial build up at the front.
The Tribunal conducted a viewing of the site and properties in Panton Crescent prior to the hearing, accompanied by representatives of both parties, and by Ms A Davey, the owner of the site.
Planning framework
The site is zoned Residential R30 under the City of Stirling Local Planning Scheme No 3 (LPS 3). Clause 8.1.1 of LPS 3 provides that development must not be commenced or carried out without planning approval having first been applied for and obtained. Clause 10.2 of LPS 3 lists matters to which regard must be had when considering an application for planning approval. The list includes:
…
c) any approved statement of planning policy of the [Western Australian Planning] Commission; [and]
…
f) any Local Planning Policy adopted by Council under clause 2.4 … and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme[.]
The City has adopted Policy 2.7 Streetscapes (streetscape policy). The streetscape policy specifies that the acceptable development provisions of cl 6.2.5 (street walls and fences) of the Residential Design Codes of Western Australia (Codes) are substituted as follows:
The height of a fence (also referred to as a street wall or front wall) is measured from natural ground level at the lot boundary to the top of the fence and includes any decorative finishes, columns and the height of any retaining wall above 0.5m.
…
The fence within the primary street setback not exceeding 1.8m in height (2.0m to piers or columns) provided that, where the fence is above 1.2m in height, that portion above 0.75m in height being visually permeable …
…
Visually permeable fencing is required to ensure that the fence is 'open' or 'see through', thereby minimising its bulk whilst maintaining reasonable visibility between the dwelling and the street. Pickets (if used) should be no wider than 75mm, and the distance between pickets should be no less than half of the width of the picket.
The objectives of the streetscape policy are listed as:
•To contribute towards attractive streetscapes and security for occupants and passersby;
•Ensure adequate privacy and open space for occupants;
•Provide an attractive setting for buildings; and
•To ensure that fences visible from the street do not detract from the residential amenity of an area.
The Codes, at Appendix 1, include the following definitions:
Building
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.
…
Natural ground level
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.
Street setback
The horizontal distance between the street alignment and a building, measured at right angles (90 degrees) to the street alignment.
The objective of Design Element 6.2 (streetscape requirements) of the Codes is:
[t]o contribute towards attractive streetscapes and security for occupants and passersby, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings.
The minimum street setback for dwellings in the R30 coding at Table 1 of the Codes is 4 metres. The performance criteria at cl 6.2.1 of the Codes provide that new development should meet the following criteria:
P1Buildings setback [sic] from street boundaries an appropriate distance to ensure they:
•contribute to the desired streetscape[;]
•provide adequate privacy and open space for dwellings; and
•allow safety clearances for easements for essential service corridors.
The explanatory guidelines applicable to Design Element 6.2 (streetscape requirements) of the Codes states, in part:
Street setback areas are an integral part of the streetscape and are fundamental to the amenity and particular character of residential localities. They may perform a number of different, but complementary roles:
•continuity of the streetscape;
•a visual setting for the dwelling;
•a buffer against noise and general activity on the public street;
•privacy for the dwelling;
•space for car parking and access; and
•a transition zone between the public street and private dwelling, allowing for mutual surveillance and personal interaction without intrusion.
The objective of Design Element 6.6 (site works requirements) of the Codes 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.
The performance criteria of cl 6.4.2 (outdoor living areas) of the Codes are:
P2.1An outdoor living area capable of use in conjunction with a habitable room of the dwelling, and if possible, open to winter sun;
P2.2 An outdoor living area that takes the best advantage of the northern aspect of the site.
Clause 6.4.2 of the Codes also includes as an acceptable standard, at A2, minimum length and width dimension of 4 metres.
The performance criteria at cl 6.6.1 (excavation or fill) of the Codes are:
P1Development 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.
Background and the refused development proposal
On 29 July 2010, the respondent granted planning approval for the development of a single dwelling on the site, including a front fence. The City approved minor amendments to the approved plans for the single dwelling on 16 October 2010 and 3 May 2011 respectively.
The City's officers visited the site in July 2010 and found that the straight retaining wall had been constructed along part of the front boundary and in the front setback area. Following correspondence from the City to the applicant, the applicant filed with the City, on 19 July 2011, an application for approval of the straight retaining wall and a proposed front fence to be erected on top of the wall. On 21 July 2011, the City informed the applicant that the retaining wall was out of keeping with the streetscape, and amended plans were required. The City said that if amended plans were not received within 60 days, the application would be deemed refused.
On 20 September 2011, the applicant lodged plans depicting a 'terraced' retaining wall. Across the front boundary of the site, the lower section of the terraced retaining wall would be 1.7 metres high at the eastern, access leg end, and 698 millimetres high at the garage driveway end. Parallel to the front boundary, the top 600 millimetres would be set back to 1 metre from the remainder of the retaining wall on the original alignment. The fence, now 1.2 metres high and visually permeable, would sit at the top of the terraced wall at the new setback.
The City refused the application for approval for the terraced retaining wall on the front boundary on 28 November 2011. The applicant lodged with the Tribunal an application for review of the City's refusal on 8 March 2012. An application to extend the time for filing the application for review was refused by the Tribunal in April 2012.
The applicant made a fresh application to the City for retrospective approval on 17 May 2012. The plans for the retaining wall and fence considered by the City were the same as those refused on 28 November 2011. The City refused the application on 8 June 2012.
The refusal
The City refused the 2011 planning application and the 2012 planning application for retrospective approval for the retaining wall for the following reasons:
1.The retaining wall does not comply with the acceptable development standards or the performance criteria of the Residential Design Codes WA pertaining to clause 6.2.1 setback of buildings generally.
2.The retaining wall does not comply with the acceptable development standards or the performance criteria of the Residential Design Codes WA pertaining to clause 6.6.1 excavation or fill.
3.The cumulative height of the retaining wall and associated front fencing does not comply with the City's streetscape policy.
The issue
The parties agreed on an issue that can be stated as follows:
Whether the planning approval for the proposed modifications to the existing retaining wall should be granted planning approval having regard to:
a)cl 6.2.1 (setback of buildings generally) of the Codes;
b)cl 6.6.1 (excavation or fill) of the Codes; and
c)the respondent's streetscape policy.
Discussion
The applicant argued before the Tribunal for planning approval of the straight retaining wall, as constructed, and not for approval of the terraced retaining wall shown in the plans considered and refused by the respondent.
From the comments made by the representatives of the applicant, it is clear that the applicant had used the decisions of November 2011 and May 2012 as a mechanism to obtain a decision from the respondent and thereby trigger an opportunity to come to the Tribunal to argue for an approval of the straight retaining wall it had built and initially applied for.
In review proceedings, it is necessary for the Tribunal to first identify the decision under review: Bakker and City of Nedlands [2005] WASAT 106 (Bakker) at [47] - [53]. The decision in this matter was that issued by the respondent on 8 June 2012. Attached to that decision and stamped with 'Refused' by the City were plans that depicted the terraced retaining wall.
The issue before the Tribunal is whether or not to grant planning approval, with or without conditions, for the refused retaining wall at the front boundary of the site.
Mr Merenda, of MI Constructions who made submissions, referred to the history of this matter and plans for the straight retaining wall originally attached to the application forms for development approval lodged with the City. It was his submission that the applicant was 'entrapped' by the respondent into substituting application drawings with the terraced retaining wall design that was then the subject of the determination by the City. Mr Merenda said that, in letters and at meetings, the City's officers were clear that the City would not approve the straight retaining wall, but that it would consider a retaining wall with terracing. Mr Merenda said that that is the only reason the amended plans were filed, and it was always the applicant's intention that a straight retaining wall be approved.
The Tribunal considers that an experienced builder and developer must appreciate the need to ensure that the City, as decisionmaker, makes a decision on an application setting out what the applicant would prefer to have approved, even in the face of comment from the City that a refusal is likely. In the event, the Tribunal has before it the refused plan of the terraced retaining wall.
The Tribunal accepts that it might consider allowing the refused retaining wall, or allowing it subject to conditions which amend the design. If conditions were imposed, it is an established planning principle that the conditions would assist in making the development more consistent with a correct and preferable planning outcome. On the face of it, the approval being sought by the applicant is essentially for an approval subject to conditions that would allow the straight retaining wall that it has built and had shown on earlier plans to remain.
It is the Tribunal's position that it must determine whether a retaining wall in some form might be allowed on the front boundary of the site. It is then necessary to determine, if allowed, whether that wall might be consistent with the refused application, or be amended, as suggested by the parties, to make it more consistent with the planning objectives. In this matter, the applicant believes the straight retaining wall should be allowed and the respondent is of the view that the retaining wall as proposed should be refused, but that a retaining wall with more terracing, including stepping across the front of the site, might be acceptable.
2010 planning approval
It was the applicant's submission that the applicant was an experienced building company and it had erected the straight retaining wall in the belief that it had been approved by the respondent when the original planning approval was granted in July 2010. It said this belief arose from what it has experienced through many building projects and the issuing of associated approvals. That is, the plans attached to the planning application showed the proposed house with a finished floor level at RL 31.00. The elevation shows this to be 0 courses (c). This floor level is approximately 1.5 2.2 metres higher than the natural ground level of the front boundary.
The July 2010 approval included an elevation of the front fence, depicted as extending between 0c and 21c, with the annotation 'minus 2c top of footing'. The applicant asserted that the convention in reading such plans is that 0c in the fence elevation is the same as the 0c of the floor of the proposed house.
In support of its submission, the applicant included in its bundle of documents a copy of a building licence issued by the City on 17 May 2011. The building licence includes a set of plans prepared by Structerre Consulting Engineers. A ground slab and footing layout plan, sheet 1 of 8, has SW1 written at the front boundary and SW2 at the truncation. Sheet 6 of 8 includes crosssections of retaining walls. SW1 shows a retaining wall with a maximum height of 3 metres. SW2 has a maximum height also of 3 metres. These plans appear to be included as typical cross-sections for retaining walls of this height constructed of masonry blocks 350 millimetres high.
Mr Merenda made comments, without the support of a witness statement, on the need for the applicant's preferred retaining wall because of the building setback of 3.7 metres approved by the City, and the difference in levels between the floor level of the house and the natural ground level. He said that, without the retaining wall on the front boundary, the house would be undermined.
The City's planning approval of July 2010 includes condition 4, which reads:
Solid fences within any street setback area in excess of 1.2 metres in height are not permitted unless they comply with the City's policy 'streetscape (including fencing)'. Fences higher than 1.2 metres will only be considered where the fence is essentially 'see through' above 750 [millimetres] …
The respondent referred also to note 1 on the first page of the building licence which states:
This building licence approval has been checked for compliance with the [Local Government (Miscellaneous Provisions) Act 1960 (WA), Building Regulations 1989 (WA), Building Code of Australia and associated Australian Standards] only. It is the builder's responsibility to ensure that this approval is consistent with any development approval or compliant with any relevant town planning requirements.
If the applicant's submission were to be accepted, then the footing of the front boundary fence would not be a conventional footing, which is commonly at or below ground level, but would be a 'footing' which was, in fact, the constructed straight retaining wall. That is, the 'footing' for the front fence would be a retaining wall 1.298 2.3 metres high above natural ground level when viewed from the street. A 'footing' of this size, which is effectively a wall on the front boundary, when read with the streetscape policy referred to in condition 4 of the planning approval, does not make any sense in planning terms. Consistent with the streetscape policy, the height of the retaining wall and fence on the front boundary is measured from a natural ground level.
The Tribunal does not consider that erecting the fence on top of the straight retaining wall would be consistent with the July 2010 planning approval. The Tribunal accepts the City's submission that the planning approval was not granted for a structure comprising the fence and straight retaining wall with a total height of up to 4.1 metres at the truncation.
It then follows that the development shown on the building licence is also not consistent with the planning approval. The Tribunal agrees that it would have assisted the applicant if any discrepancies between the two approvals were pointed out to the applicant, but the process is that it is the responsibility of the applicant to ensure that the building proposal is consistent with the planning approval.
The Tribunal would point out that a subsequent building licence approval does not replace the previously issued planning approval. Planning approval and building approval are two separate processes. Under LPS 3, a planning approval is required before a building approval can be granted. A planning approval involves assessment of the proposed development against the provisions of the planning scheme and planning policies, and is concerned mainly with the impacts of the proposed use or development upon neighbours, the streetscape and the local environment. A building approval is concerned with assessing the proposed development against the relevant codes and regulations to ensure that it will be soundly constructed and safe for users.
Clause 8.2.1(h) of LPS 3 provides that planning approval is not required for a retaining wall that complies with the acceptable development requirements of the Codes; that is, a retaining wall up to 500 millimetres in height. Ms Masuku, a town planner who appeared for the City, said that this allowed for a retaining wall of 500 millimetres in height across the front of the site. Such a retaining wall would have to be stepped down the slope to maintain that height. She commented that a 1.8 metre high fence, which was consistent with the fencing policy, could then be erected on top of such a retaining wall.
Comment on the issue
In respect to the issue as agreed by the parties, it was the applicant's contention that if the retaining wall is considered a 'building', the proposed straight retaining wall meets the performance criteria on building setback from the street boundary at cl 6.2.1 of the Codes. The applicant used photographs and the viewing of the site to illustrate its argument that there is a large variation in buildings and setbacks in Panton Crescent. It said the straight retaining wall did not look out of place because of the slope of the street, and was consistent with other retaining walls, notably at Nos 11, 13, 15 and 19 Panton Crescent.
The applicant said the design provided adequate privacy for the residents, and the open space created in the level front yard would be a useful, northfacing area. Also, essential services would not be affected.
The applicant said that a terraced retaining wall would reduce the area and usefulness of open space in the front setback, and the open space at the rear of the house is southfacing and does not quite satisfy the minimum dimension of 4 metres. Services in the front yard would have to be relocated, which would be costly and inconvenient for the owner. The applicant considered the straight retaining wall provides an attractive setting for the building as required by the objectives of cl 6.2 of the Codes.
The applicant further submitted that the straight retaining wall would provide an outdoor living area that satisfied the performance criteria for outdoor living areas at cl 6.4 of the Codes. The resultant front yard would be northfacing, have a minimum length and width of 4 metres, and there would be access to the area from a habitable room. A terraced retaining wall would reduce the dimensions of this open space area.
The Tribunal granted Ms Davey, the owner of the site and the person who is to live in the house, leave to make a submission to the Tribunal. Ms Davey clearly set out her belief that the retaining wall, as built, had been approved because of the representations made to her by the builder. She said that the resultant level front yard was northfacing, and provided play space for her children and easy access to the house. It was her submission that, if she had known that the retaining wall had not been approved, she may have relocated the house on the site. Ms Davey asked that approval be granted for a level area, rather than one interrupted by terracing, to ensure that the space was usable.
The applicant also said in respect to the objectives for cl 6.2 of the Codes and the streetscape policy that no one would feel dwarfed by the wall, because it was 5.1 metres from the kerb and set back 4 metres from the side boundaries with neighbours. Passive surveillance would be possible from the upstairs balcony, which was adjacent to a family and meals area, and the 1.2 metre high fence now proposed for the top of the straight retaining wall would be visually permeable, unlike fences at some other houses in the street.
In support of the objectives of the streetscape policy, the applicant restated the comments made in respect of cl 6.2.1 and cl 6.4 of the Codes; that is, the straight retaining wall contributed to an attractive streetscape, privacy, open space for the occupants, and to providing an attractive setting for the house.
Ms Masuku said the development did not satisfy the performance criteria at cl 6.2.1 of the Codes and the related performance criteria and objectives of the streetscape policy. This was because the cumulative height of the retaining wall and fence would be between 2.55 metres and 3.5 metres, which is a significant departure from acceptable development of a 0.5 metre high retaining wall and a 1.8 metre fence with visually permeable insets. In her opinion, the structure would be bulky and imposing, and therefore incongruous, especially when viewed from the east in an otherwise generally open streetscape.
Ms Masuku pointed out that the rear courtyard was 47 square metres and, at the front, the first floor balcony was 26 square metres. She said these areas provided private open space. Ms Masuku considered the proposed development has been borne out of the personal preferences of the owners and not out of any reasonable consideration of the applicable planning framework, and this could not be supported: Hawkins and City of Joondalup [2008] WASAT 64 at [42].
Ms Masuku further argued that the proposed development would not meet the performance criteria for fill and excavation at cl 6.6.1 of the Codes. This was because the development would not retain 'the visual impression of the natural level of the site, as seen from the street or other public place, or from an adjoining property'. The fill was the highest level possible and was inconsistent with the streetscape, which generally consisted of front setbacks that maintained, as practically as possible, the natural ground levels.
Ms Masuku was of the opinion that including the terrace in the retaining wall was 'tokenistic' and not extensive enough to ameliorate the impact of the structure on the visual impression of natural levels of the site and the streetscape.
In respect of the examples of overheight retaining walls on the front boundaries of other lots in the street referred to by the applicant, Ms Masuku said the City's records showed that these either predated the requirement for planning approval or did not have approval. It was her submission that the City had applied the provisions of the Codes and the streetscape policy from when they were adopted. Ms Masuku considered that there was no reason why the applicant should not be required to modify its proposal to be more consistent with the planning controls and the general streetscape of Panton Crescent.
The Tribunal has formed the view that the straight retaining wall cannot be supported, but there is a case for allowing the terraced retaining wall design considered by the City. In reaching this conclusion, the Tribunal considered relevant that, at the front elevation and including the truncation, the retaining wall was about half of the 20.48 metre frontage of the site and was set back from both side boundaries. It was also relevant that a 0.5 metre high retaining wall is permitted on the front boundary.
In the view of the streetscape down the hill from the western end of Panton Crescent, the site is the only visible property with a retaining wall on the front boundary. From this direction, the view is initially of a wall about 1.3 metres high that would have a 1.2 metre open fence on top. The Tribunal has formed the view that the view of the wall in this direction would have limited impact on the streetscape, particularly in light of the 1.8 metre high, albeit side, fence diagonally opposite. The impact of the retaining wall would be less if the terrace were included.
Streetscape, however, changes as it is viewed from different positions within, and when moving along, the street in question. As stated by the City, the straight retaining wall appears particularly intrusive when viewed from directly in front and when this section of the street is viewed from the east. This is because of the 2.3 metre height, the stark appearance of the wall, and the feature of a meter box on the truncation. The fence would make the structure 3.5 metres high, which can only be described as intrusive.
The Tribunal does not accept that the site might be returned to the 'natural' topography. This is because of the approved floor level of the house and the reduced setback. It is necessary that the up to 2.3 metres in height between the front boundary and the footings of the house must be retained by some means in the 3 5 metres of the setback. On balance, the Tribunal has formed the view that, in this matter, in addition to the level difference, also relevant is the desirability of having readily accessible, from a habitable room, an area of northfacing open space with minimum dimensions of 4 metres, referred to at cl 6.4 of the Codes. This can be achieved with the terraced retaining wall.
At the curve in Panton Crescent near to the site when looking downhill to the east, the retaining walls at Nos 9, 11, 13, 15 and 19 Panton Crescent are visible in the streetscape. The presence of these retaining walls is a relevant consideration. However, it must be said that of the approximately 50 houses in Panton Crescent, about three have a 1.8 metre high front fence, and the five addresses identified above are the houses with retaining walls on the front boundary. The Tribunal has concluded that the retaining walls identified do not define the character of the streetscape for Panton Crescent and do not establish a precedent for simply setting aside the planning controls and allowing an overheight retaining wall for any property in Panton Crescent.
Ms Masuku's evidence was that these retaining walls, for various reasons, were not subject to scrutiny under the current planning framework for front fences and streetscape. The view and photographs revealed that, except for No 13, the retaining walls are one to two block courses lower than the straight retaining wall at the truncation on the site. The two examples of solid fences on top of these retaining walls, one of fibre cement and the other of wooden slats, provide an illustration of an undesirable planning outcome. That is, the presence of the retaining walls referred to do not provide a basis for identifying an established streetscape that supports the straight retaining wall on the site.
The applicant also mentioned the inconvenience and cost associated with having to alter the constructed retaining wall. In an application for retrospective planning approval for an existing structure, the consideration must be based on planning grounds. The fact that the development is already there and that altering the existing development to comply might be inconvenient and might cost money is not a consideration that can be determinative of the matter when the planning issues are otherwise straightforward.
Conclusion
The Tribunal has found that, in July 2010, the City granted planning approval for the house on the site and a front fence, but did not grant planning approval for the straight retaining wall of up to 2.3 metres high on the front boundary that would form the 'footing' for the front fence.
A building licence was granted for the straight retaining wall on the front boundary, but this is not able to overcome the absence of planning approval for the wall.
The Tribunal had before it the refusal of the plan for the terraced retaining wall. The applicant wanted the application for review allowed but the approval conditioned to allow the straight retaining wall to remain.
The Tribunal concluded that the straight retaining wall would not contribute to the desired streetscape, particularly when viewed from the east, in conflict with the relevant policies on streetscape and development in the front setback. The Tribunal further concluded that the examples of other retaining walls on front boundaries to the east in Panton Crescent did not establish a streetscape pattern that could be extended as a matter of course to other lots elsewhere in the street in conflict with the established planning controls.
The Tribunal did, however, have regard to the particular circumstances in this instance, which include the slope of the site, the setback of the house, the approved floor level of the house, the orientation of the house, the limited length of the frontage on which the retaining wall is built and the extent, although limited, that the proposed terrace in the wall would break up the lines of the retaining wall. The Tribunal concluded that, in this instance, there is a case for development approval for the terraced retaining wall set out in the plans that were before the City.
The Tribunal therefore determined to uphold the application for review to the extent of setting aside the City's refusal of 8 June 2012 and granting conditional planning approval for the terraced retaining wall on the front boundary of the site and the 1.2 metre high visually permeable front fence.
Conditions
The applicant filed a schedule of conditions it would want imposed if planning approval were granted. The applicant had no particular objection to the conditions. One condition was that any work be completed within three months. The Tribunal considers that, because of the timing of this matter, a period of four months might be more realistic and the conditions should be adjusted to be more particular to the development approved.
Orders
1.The application for review is allowed.
2.The refusal of the respondent of the terraced retaining wall dated 8 June 2012 is set aside and planning approval is granted for the terraced retaining wall shown on the plans stamped 'amended plans 30 May 2012 received' by the respondent, subject to the following conditions:
(i)The retaining walls must be treated with antiraffiti coating upon completion.
(ii)The proposed 1.2 metre high fencing infill must be visually permeable in accordance with the provisions of the City of Stirling's Policy 2.7 Streetscapes. Where pickets are used as a form of inset for the front fence, the pickets are to be no wider than 75 millimetres and spaced at not less than half the width of the pickets.
(iii)Stormwater from all paved areas to be collected and contained on site.
(iv)All land indicated as landscaped areas on the approved plan being developed on practical completion of the retaining walls to the satisfaction of the City of Stirling. All landscaped areas are to be maintained in good condition thereafter.
(v)The work the subject of this approval is to be completed within four months from the date of this decision.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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