Murphy and Town Of Vincent
[2006] WASAT 85
•28 MARCH 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MURPHY and TOWN OF VINCENT [2006] WASAT 85
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 MARCH 2006
FILE NO/S: DR 573 of 2005
BETWEEN: PETER AND CAROL MURPHY
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning Development application Two grouped dwellings Setback condition to southern boundary Local authority requires compliance with Residential Design Codes Design considered by council proposed minimal reduction from standard Applicant seeks on review approval of design not considered by primary decisionmaker Role of Tribunal in considering on review a matter before decisionmaker
Legislation:
Residential Design Codes of Western Australia (2002), cl 3.3.1, cl 3.3.1 A1, cl 3.3.1 A1(ii), cl 3.3.1 P1
Town of Vincent Town Planning Scheme No 1
Result:
The application for review is allowed such that condition (vii)(c) is deleted from the approval dated 23 August 2005 and the development set out in the plans of 6 July 2005 can proceed as otherwise applied for and approved
Category: B
Representation:
Counsel:
Applicants: Mr Ken Adam
Respondent: Mr Simon Bain
Solicitors:
Applicants: As Agent
Respondent: As Agent
Case(s) referred to in decision(s):
Bakker and City of Nedlands [2005] WASAT 106
Love v Western Australian Planning Commission [1999] WATPAT 4
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1ALD 167
Re Hare and Commissioner for Superannuation (1979) ALN N662
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In October 2004, the Town of Vincent refused an application by Mr Peter and Mrs Carol Murphy to demolish the existing house at 153 Coogee Street, Mount Hawthorn and to build two grouped dwellings. The dwelling would have had a common wall and setbacks of 1.0 metre from each side boundary of the lot.
Reasons for refusal included non-compliance with the setback requirements of the Residential Design Codes of Western Australia (2002) and the impact of the resultant bulk and scale on the property adjoining to the south.
In May 2005, Mr and Mrs Murphy lodged a fresh application with setbacks similar to those previously refused. Following consultation with officers of the Town of Vincent, the plans were amended in July 2005 to show a 1.5 metre minimum southern boundary setback. This amended application was then considered by the Council and approved, but subject to the southern side setback being increased to 1.9 metres.
Mr and Mrs Murphy lodged an application for review of the Council's decision. They asked for approval, not of the 1.5 metre setback shown in the plan considered by Council, but of the 1.0 metre setback that was in the plans submitted in 2004 and May 2005.
The Tribunal's role is to consider the reasonableness of the conditions imposed by the Council when deciding the application it had before it. It is not the Tribunal's role on review to consider the matter as a development proposal at large. The Tribunal has found that the 1.5 metre south side setback that was in the proposal that went to the Council can be supported.
Introduction
In June 2004, Mr Peter and Mrs Carol Murphy (applicants) applied to the Town of Vincent (respondent) for planning approval to demolish the existing single house and to construct two twostorey grouped dwellings at No 153 Coogee Street, Mount Hawthorn (subject land). The application sketch showed the two dwellings, Unit 1 and Unit 2, to have equal frontage to the street, a common wall between them and setbacks of a minimum 1.0 metre from the south and north boundaries for Unit 1 and Unit 2 respectively (2004 application).
In October 2004, the respondent resolved to refuse the 2004 application. The reasons for refusal referred to the impact of the bulk and scale of the proposed development on the property to the south and non-compliance with the setback requirements of the Residential Design Codes of Western Australia (2002) (Codes).
In May 2005, the applicants lodged with the respondent a fresh application for planning approval for the development of two grouped dwellings on the subject land. This application sketch also showed sections of wall set back 1.0 metre from each of the southern and northern boundaries of the site (May 2005 sketch). The applicants discussed the May 2005 sketch with officers of the respondent and subsequently amended it because, in the words of the applicants' town planning consultant, Mr Ken Adam:
" … in response to objections raised by the adjoining owner on the southern side, the applicants agreed to amend the proposals to increase the side setback on that side to 1.5m."
The amended drawings showed side boundary setbacks to the three relevant sections of the southern wall as 1.795 metres, 1.5 metres and 1.795 metres respectively. The amended sketches were datestamped 6 July 2005 by the respondent (July 2005 sketches).
The respondent's decision
The Council of the respondent had before it a development application with the July 2005 sketches. The staff of the respondent recommended approval. The Council of the respondent resolved to approve the July 2005 sketches subject to conditions. Included as a condition was:
"(vii)Prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the following:
…
(c)the upper floor of Unit 1 being setback [sic] a minimum of 1.9 metres from the southern side boundary."
The applicants then applied to the Tribunal for review of condition (vii)(c).
Discussion
Intent of the application for review
The application for review asked the Tribunal to:
"replace condition of approval no (vii)(c) with a new condition to read
'(c)the upper floor of unit 1 being set back a minimum of 1.0m from the southern boundary'."
Mr Adam subsequently clarified that it was not intended that the upper floor of Unit 1 be set back 1.0 metre with the ground floor remaining at the 1.5 metre setback shown on the July 2005 sketches. To put the matter beyond doubt, it was requested that the Tribunal amend the wording of condition (vii)(c) to read:
"(c)The section of southfacing wall adjoining the stair and activity room at the upper floor level, and the corresponding section of wall below, to be set back a minimum of 1.0m from the southern boundary."
Mr Adam said that the applicants had produced and submitted the July 2005 sketches showing a side setback from the southern boundary of 1.5 metres:
" … solely in the interest of more easily obtaining approval, to save time and money. They did not then, nor do they now, believe that there were any planning or amenity reasons why the setback should be increased.
…
The applicant [sic] submits that no good purpose would be served by compliance with the condition, and instead requests [sic] that the relevant setbacks be reduced to 1.0m, as originally proposed, and as has been accepted by the Council for the northern side of the development."
Mr Adam, on behalf of the applicants, provided submissions setting out arguments in support of a setback to the southern wall of 1.0 metre. These included interpretations of the relevant provisions of the Codes and illustration of the relationship there would be between the proposed development and the existing development on the lot adjoining to the south.
The respondent had Mr Simon Bain, a planning consultant, prepare its submission in response. Mr Bain disagreed with Mr Adam on the appropriate interpretation to be made of the provisions of the Codes and referred to the application of policies that the respondent has in place for this locality, particularly Policy No 3.3.5 "Ellesmere Locality Plan 5".
The respondent also provided two further statements, one from Mr Brian and Mrs Maria Hickey, the owners of the property to the south, objecting to the proposal and another from Cr Sally Lake. Cr Lake set out how she considered the setback requirements of the Codes and the Ellesmere locality policy should be applied to the development proposal.
The development proposal before the Tribunal
Both parties have proceeded on the basis that this matter has come before the Tribunal as a development proposal at large for two grouped dwellings, and it is open to the Tribunal to approve the development in any particular form that either of the parties now considers should occur. The Tribunal does not accept that this is the case.
It is not clear from the papers what action the applicants would have taken had the respondent approved the amended sketch with the 1.5 metre setback to the southern boundary. From the comments made in the submissions, it is clear the amended application of July 2005 was considered by the applicants as a mechanism to obtain a decision from the respondent and thereby trigger an opportunity to come before the Tribunal to seek approval for the form of development refused by the respondent in October 2004 and as previously set out in the May 2005 sketch.
The role of the Tribunal in review proceedings is to first identify the decision under review: Bakker and City of Nedlands [2005] WASAT 106 [47, 48]. In this instance, the decision under review is that issued by the respondent in August 2005 and which includes condition (vii)(c), the subject of this application for review. In Bakker at [52], the position of the Australian Administration Tribunal is cited to be as follows:
"Despite the broad power of the AAT to stand in the shoes of the decisionmaker, it must be borne in mind that the power is exercisable only in relation to the decision under review. … The AAT does not substitute for the decisionmaker generally. Just as the AAT has no general review power … it has no general decisionmaking power. 'The AAT is not a primary administrator. It is not the original repository of powers and discretions under an enactment': per Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1ALD 167 at 175. Accordingly, if, for some reason, an issue before the AAT has not been the subject of a decision by the primary decisionmaker, the Tribunal itself cannot assume to make a decision on the matter on the basis that the decisionmaker could have made such a decision: Re Hare and Commissioner for Superannuation (1979) ALN N662.": Pearce, Australian Administrative Law at [266A] 'AAT limited to review functions only'."
The issue of a 1.0 metre setback from the southern boundary was not before the respondent, the primary decisionmaker. The issue before the respondent was whether or not to grant planning approval for the proposed 1.5 metre setback from the southern boundary.
It is not for the Tribunal, when exercising its power of review, to approve a development that the applicant might otherwise want approved but did not press before the primary decisionmaker. The development now preferred by the applicants was the subject of the application refused in October 2004 and of the May 2005 sketches. The applicants are, in effect, asking the Tribunal to rewrite the application that was before the primary decisionmaker. The Tribunal is being asked to determine, not that the respondent has imposed an unreasonable condition upon the application, but that the development the applicants had before the respondent in July 2005 was so illconceived that the form of development set out in the earlier sketches should be approved. From the authorities cited, that is not the Tribunal's role.
In Love v Western Australian Planning Commission [1999] WATPAT 4 at 30, the former Town Planning Appeal Tribunal stated:
"The Tribunal has a dual role on an Appeal from a condition of approval of subdivision. It must consider if the specific condition that is the subject of the Appeal can be validly imposed. Secondly, it must determine de novo if that condition is one that should be imposed, in the circumstances."
There was no dispute that a condition on setback from a boundary is a condition properly imposed on a development approval under the town planning scheme. The issue before the Tribunal, therefore, was whether the condition imposed by the respondent, that is, condition (vii)(c), was reasonable having regard to the specific merits of the particular application set out in the July 2005 sketches. It is a matter for the Tribunal to determine whether the development applied for can stand, should be amended to comply with the condition imposed by the respondent, or amended to comply with a setback standard the Tribunal considers appropriate for the form of development in the July 2005 sketches.
The southern side boundary setback
At the southern side of Unit 1, the July 2005 sketches before the respondent had at the upper level, starting from the front, 2.0 metres of wall set back 1.795 metres, then an intermediate wall of 8.7 metres set back 1.5 metres, then a further 4.0 metres of wall set back 1.795 metres. The wall height is 5.7 metres and there are no major openings to habitable rooms in these lengths of wall.
In approving the proposed development, the respondent can be considered to have accepted that, subject to condition (vii)(c), the proposed development would be consistent with the objectives of Policy No 3.3.5 "Ellesmere Locality Plan 5". This policy provides for infill development being in the proposed form of splitting wide frontages down the middle.
The policy refers to maintaining existing front, side and rear setbacks. In this instance, the new dwellings are to be two stories and so the respondent's approach has been to impose condition (vii)(c) to address the impact of the scale and bulk of the proposed development on the neighbour to the south.
The respondent's Town Planning Scheme No 1 includes the Codes by reference. Boundary setback requirements are dealt with at cl 3.3.1 of the Codes. The Performance Criteria to be met, listed at cl 3.3.1 P 1, include requirements that buildings be set back so as to ensure adequate direct sun and ventilation to adjoining properties and to assist in ameliorating the impacts of building bulk on adjoining properties. At cl 3.3.1 A1 are listed acceptable development provisions that, if complied with, the building is deemed to meet the performance criteria. Clause 3.3.1A1(ii) refers to buildings being set back in accordance with, relevant to this two storey development, Table 2 and Figure 2. The setback requirement in the Codes for a side wall is a function of the height and length of the wall. The setback requirements for a wall with no major openings to a habitable room, as in this case, are found in Table 2a. The two parties disagreed on how to calculate the minimum setback requirement for the 8.7 metre length of intermediate upper level wall.
For intermediate values, Table 2a instructs that the nearest higher value be taken. For a 14.7 metre long wall 5.7 metre high, as in this proposal, Table 2a requires a setback of 1.9 metres. The length of the wall can, however, be considered in sections, as illustrated in Figure 2D of the Codes.
For two sections of wall to be considered independently, there is required to be an intervening section of wall more than 4.0 metres in length. In the proposed development, there is a 2.0 metre section of wall and a 4.0 metre section of wall separated by an 8.7 metre long section of wall. The two shorter sections of wall can therefore be considered independently. From Table 2a, the required setback for these two lengths of wall would be a minimum of 1.2 metres. The design applied for has these two sections of upper level wall set back at 1.795 metres and so there is clearly no conflict with the requirements of the Codes.
Mr Bain interpreted Table 2a as requiring a 1.9 metre setback for the 8.7 metre section of wall. This was determined by the 14.7 metres overall length of the southern wall, as instructed in Figure 2D. Mr Adam said that the 8.7 metre section of wall could be considered independently and has a required setback from Table 2a of 1.2 metres. The Tribunal considers the respondent's approach is correct, having regard to the instructions included with Figure 2D of the Codes.
The instructions for Figure 2D state that calculating the setback of the intermediate section of wall "shall be determined on the basis of total length", which in this case is 14.7 metres. If, in this instance, each length of wall were to be measured separately, each would have an identical minimum setback of 1.2 metres, which, if applied, would result in a flat wall. This would defeat the purpose of having a length of wall broken up by sections being at different setbacks to reduce the impact of the bulk and size of the building on the neighbouring property. For the proposed development, the Tribunal considers that the setback to the 4.0 metre length of wall of bedroom 3 can be determined independently and the setback to the 2.0 metre length of wall to the room marked "WIR" can be determined independently. The 8.7 metre length of wall separating those two, which is the wall to the activity area and the stair void, is to have its setback determined by having reference to the 14.7 metre overall length of wall, as required by Figure 2D. By reference then to Table 2a, the setback to this 8.7 metre long central section of wall is 1.9 metres.
The applicants' July 2005 sketches before the respondent showed Unit 1 with a setback of 1.5 metres from the southern boundary to the upper level of the intermediate wall. Condition (vii)(c) requires that this be increased to 1.9 metres as required by the Codes. If the prescribed standard is to be relaxed, the Performance Criteria of cl 3.3.1 P1 have to be addressed. The applicants provided a sketch which shows the setback of the neighbouring development to the south from the common boundary. A crosssection was provided showing shadow cast for setbacks of 1.0 metre and 1.9 metres. From these sketches it can be interpolated that a setback of 1.5 metres as applied for would result in shadow and bulk impacts on the southern neighbour that are consistent with requirements of the Performance Criteria of cl 3.3.1 P1 of the Codes.
The Tribunal has therefore formed the view that the development could be allowed to proceed as set out in the plans of July 2005 before the primary decisionmaker, that is, with a setback of 1.5 metres from the southern boundary to the central section of wall of the southern wall of Unit 1.
Order
The Tribunal makes the following order:
The application for review is allowed such that condition (vii)(c) is deleted from the approval dated 23 August 2005 and the development set out in the plans of 6 July 2005 can proceed as otherwise approved.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER