Randles and ANOR and City Of Fremantle
[2008] WASAT 103
•6 MAY 2008
RANDLES & ANOR and CITY OF FREMANTLE [2008] WASAT 103
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 103 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:64/2008 | 6 MAY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 6/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Development approval granted | ||
| B | |||
| PDF Version |
| Parties: | PETER RANDLES LEONIE RANDLES CITY OF FREMANTLE |
Catchwords: | Town planning Development application Retrospective approval Garage and pool house Substantially the same building approved by Minister for Planning and Infrastructure when granting development approval for alterations and additions Minister authorised Council to impose conditions Condition required commencement of development within two years and completion within three years Approved development commenced within two years, but not garage and pool house Substantially the same garage and pool house as approved built after three years with building licence Whether construction of garage and pool house was commenced within period specified in development approval Whether construction of garage and pool house was completed within period specified in development approval What approval is required Whether approval should be granted |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 8.4.1 City of Fremantle Town Planning Scheme No 3 Planning and Development Act 2005 (WA), s 238(4), s 252(1) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The deemed refusal by the respondent of the development application for retrospective approval of the pool house/garage constructed at No 56 Harvest Road, North Fremantle is set aside, and a decision is substituted that development approval is granted for construction of the pool house/garage in accordance with the plans date stamped 20 November 2007 by the respondent. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RANDLES & ANOR and CITY OF FREMANTLE [2008] WASAT 103 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 6 MAY 2008 DELIVERED : 6 MAY 2008 FILE NO/S : DR 64 of 2008 BETWEEN : PETER RANDLES
- LEONIE RANDLES
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Development application Retrospective approval Garage and pool house Substantially the same building approved by Minister for Planning and Infrastructure when granting development approval for alterations and additions Minister authorised Council to impose conditions Condition required commencement of development within two years and completion within three years Approved development commenced within two years, but not garage and pool house Substantially the same garage and pool house as approved built after three years with building licence Whether construction of garage and pool house was commenced within period specified in development approval Whether construction of garage and pool house was completed within period specified in development approval What approval is required Whether approval should be granted
(Page 2)
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 8.4.1
City of Fremantle Town Planning Scheme No 3
Planning and Development Act 2005 (WA), s 238(4), s 252(1)
Result:
Application for review allowed
Development approval granted
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr S Carter (Public Sector Employee)
Solicitors:
Applicants : Self-represented
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Nil
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 Mr and Mrs Randles applied for retrospective development approval in relation to a garage and pool house that they built at their property. They had previously obtained development approval for alterations and additions, including substantially the same garage and pool house, subject to a condition that construction be commenced within two years and completed within three years.
2 Mr and Mrs Randles commenced construction of the approved alterations and additions within two years of the approval, but did not commence construction of the garage and pool house within two years or, indeed, within three years of the approval. However, they obtained a building licence for the garage and pool house and constructed the building in accordance with the licence.
3 The only differences between the garage and pool house as built and as previously approved are a reduced setback of up to 0.2 metre from the road, an increased setback of 0.2 metre to 0.3 metre from a boundary and the location of a door at the side closer to the street.
4 Following the hearing, the Tribunal gave an oral decision in which it granted retrospective development approval for the garage and pool house as built for two reasons.
5 First, the building as constructed is substantially the same as the building as approved. The differences are minor and insignificant.
6 Second, there has been no substantial change in the circumstances or in the planning framework since the granting of development approval.
7 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
8 These proceedings involve an application brought by Mr and Mrs Randles under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal of a development application for retrospective approval of a detached garage and pool house building at No 56 Harvest Road, North Fremantle (site).
(Page 4)
9 The site has an area of approximately 2,200 square metres, and frontages to both Harvest Road and Ainslie Road. The garage and pool house is located at the Ainslie Road frontage.
10 Clause 8.4.1 of the City of Fremantle Local Planning Scheme No 4 (LPS 4) authorises the City of Fremantle (City or Council) and the Tribunal on review to grant development approval to a development that has been carried out, regardless of when the development was carried out.
11 The President of the Tribunal has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues, and has listed the determination of the application before me.
Background
12 On 18 August 2000, Mr and Mrs Randles applied to the City for development approval to carry out a development described in the application as "upstairs bedroom in main residence and pool house/garage".
13 On or about 3 November 2000, Mr and Mrs Randles appealed against the then deemed refusal of the development application to the Minister for Planning and Infrastructure (Minister).
14 On 6 November 2000, the City refused development approval for the following three reasons:
"(a) the proposed garage is of excessive bulk and scale, and inconsistent with the established streetscape character of the area;
(b) the proposal would set an undesirable precedent;
(c) the three-car crossover would be detrimental to the established residential character of the area."
15 On or about 29 January 2001, the Minister received a report from Ms Marie Connor, then a member of the Minister's Town Planning Appeal Committee, in relation to the appeal. Ms Connor's report includes the following:
"The streetscape of Ainslie Road consists of single residences located close to the street boundary. Screen walls are a predominant feature in the street, and two garages have been
(Page 5)
- constructed with nil setbacks to Ainslie Road (No 7 and No 9 Ainslie Road). Numbers 21 to 15 Ainslie Road contain character houses set back approximately three metres from the front boundary, establishing a fairly strong building alignment.
The proposed garage and pool house presents as a single-storey building to Ainslie Road. The structure has been well considered in design terms, with clear reference to the existing residence. The segregation of the door elements reduces the adverse impact of a structure with a frontage principally composed of garage doors. The scale of the building, in the context of the overall site, is considered acceptable, and given that the proportions of the building fronting Ainslie Road is similar to a single-storey residence, it is considered that the proposed development would not unduly impact on the streetscape of Ainslie Road.
The three-bay crossover is not considered to be a significant issue, given the 38.4-metre street frontage of the subject lot.
In terms of the setback requirements under the Residential Planning Codes, the proposed development complies. However the two-metre setback to Ainslie Road is not consistent with the established pattern within the street. Although the scale of the Ainslie Road elevation is consistent with the houses in the street, the façade consists principally of garage doors, and as such[,] would [dominate] the adjoining residential properties, and feature prominently in the streetscape."
16 Ms Connor recommended that the appeal should be upheld, subject to conditions including that:
"The minimum setback of the garage to Ainslie Road shall be three metres"
- and
"any such conditions the City might reasonably impose on a development of this type."
(Page 6)
18 On 23 April 2001, the Council imposed 12 express conditions, including the conditions referred to by the Minister. After the 12 conditions and before three advisory notes, the letter conveying conditions to Mr and Mrs Randles, dated 1 May 2001, states as follows:
"This consent allows you to commence the use and/or construction within two years, and to complete construction within three years of 1 May 2001. If the development is not completed within these periods, you must reapply for planning consent."
19 Although the Minister, in upholding the appeal, required that the development had to be commenced within two years, she was silent about a date for completion of the development.
20 I find that although the completion date specified by the Council was not expressed as a condition, it is in substance a condition of approval, and is authorised by the Minister's decision, because it is a condition that the City might reasonably impose on a development of this type.
21 Mr and Mrs Randles did not disagree with the Council's requirement that they complete construction within three years of 1 May 2001, that is, by 1 May 2004.
22 Mr and Mrs Randles commenced construction of the approved development within two years of 1 May 2001. However, they did not commence construction of the garage and pool house within that period. It is not entirely clear on the evidence whether construction of the garage and pool house commenced by 1 May 2004. However, Mr and Mrs Randles completed construction of a garage and pool house in substantially the same position as the approved building by 16 November 2007. They carried out the construction of the pool house/garage building in accordance with a building licence issued by the City.
23 On 19 November 2007, Mr and Mrs Randles applied for retrospective development approval for the garage and pool house.
24 It is common ground that there are only three differences between the garage and pool house as approved by the Minister and the garage and pool house as built on the site, namely:
(1) Whereas the Minister required a minimum setback of the garage to Ainslie Road of 3 metres, the piers between the
- sections of garage door have a minimum setback of approximately 2.8 metres, although the garage door itself is set back approximately 3.2 metres. Mr and Mrs Randles explained that the builder or bricklayer apparently made a small line error in relation to the setback of the piers to Ainslie Road.
- (2) The doorway of the garage on its western elevation has been moved from a central position closer to Ainslie Road. Mr and Mrs Randles explained that this was done because it would have been too difficult to arrange steps down from the original approved position of the door to the principal level of the site. The plan for which approval is now sought demonstrates this to be the case. Mr and Mrs Randles also say that whereas the originally approved position of the door was opposite their neighbour's front door, the constructed door position provides greater privacy to their neighbour's entry.
(3) The setback of the western wall to the neighbouring property has been increased from 1.5 metres to approximately 1.7 metres to 1.8 metres. Mr and Mrs Randles say that this increase in setback occurred because of the need to accommodate a stone outcrop during construction.
25 The development application was advertised, and Council received three letters of objection, including one from the neighbouring property to the west.
26 On 6 February 2008 the Council received a report from its assessing officer which recommended that Council grant retrospective development approval. The report includes the following:
"It must certainly be acknowledged that the structure, as well as the subsequent changes from what was originally approved, is unauthorised, and the Council should not make light of such works proceeding without the appropriate approvals. Nevertheless, taking guidance from Council's previous resolutions, and that the unauthorised changes, including the setback distance from Ainslie Road, are considered virtually imperceptible from the street and are not considered to significantly change the material intent of the development from what was previously approved, the retrospective application is supported at officer level."
(Page 8)
27 However, the Council resolved to defer the development application, pending verification of the street setback. On 19 March 2008 the Council passed the following resolution:
"That Council advise [the State Administrative Tribunal] that the following issues arise in relation to the application for review DR64 of 2008, 56 Harvest Road[,] North Fremantle:
1. The pool house and rear garage structure is considered to be unauthorised due to the construction commencing after the expiry of the term of the planning approval.
2. Construction has occurred in a manner that is inconsistent with the plans as approved by the Minister for Planning …
3. The Council is capable of determining an application for approval for the development under clause 8.4.1 of the City's Local Planning Scheme No. 4."
Issues for determination
28 The following four issues arise for determination in this review:
(1) Whether construction of the garage and pool house was commenced within the period specified in the development approval.
(2) Whether construction of the garage and pool house was completed within the period specified in the development approval.
(3) What retrospective development approval is required?
(4) Should retrospective development approval be granted?
29 I will address each of these four issues in turn.
Was construction of the garage and pool house commenced within time?
30 The Council originally contended that the construction of the garage and pool house was not commenced within the period specified in the development approval, because construction of that building commenced
(Page 9)
- after 1 May 2003. At the hearing, the Council has not pressed this argument.
31 The development approval required commencement of construction of the approved development by 1 May 2003, and that certainly occurred. The approved development includes both the upstairs bedroom in the house and the garage and pool house. Although construction of the garage and pool house commenced after 1 May 2003, construction of the approved development commenced within time, and subject to the condition requiring that construction be completed by 1 May 2004, the development approval authorised construction of the garage and pool house.
Was construction of the garage and pool house completed within time?
32 Construction of the garage and pool house was not completed within the period specified in the development approval. The development approval required that the construction of the garage and pool house be completed by 1 May 2004. Plainly that did not occur.
What retrospective development approval is required?
33 Mr and Mrs Randles contend that they only require development approval for the three differences between the development as approved and as built. In contrast, the City contends that Mr and Mrs Randles require development approval for the whole garage and pool house as constructed.
34 The City is correct. The original development approval stated that if the development is not completed by 1 May 2004, Mr and Mrs Randles must reapply for development approval.
35 It is not clear whether any of the garage and pool house was constructed by 1 May 2004. If part of that building had been constructed by that date, then that part would be authorised by the original approval, and retrospective approval would not be required for it. However, for the purposes of this decision, I assume that the whole of the garage and pool house was constructed after 1 May 2004. Consequently, retrospective development approval is required for the whole of the garage and pool house as constructed.
36 Although Mr and Mrs Randles contend otherwise, I find that their development application is, in substance, to regularise the constructed development, and therefore for approval for the whole building as constructed.
(Page 10)
Should retrospective development approval be granted?
37 I consider that retrospective development approval should be granted for the whole of the garage and pool house as constructed for the following two reasons.
38 First, the building as constructed is substantially the same as the building approved by the Minister. The reduced setback of the piers by a maximum of 0.2 metre is, as the Council's assessing officer correctly said, "virtually imperceptible from the street, and is not considered to significantly change the material intent of the development from what was previously approved". The additional setback of the western wall by 0.2 metre or 0.3 metre, and the movement of the door closer to the street, involves a marginal improvement in impact on the adjoining property to the west. Overall, the differences between the building as built and as approved can only reasonably be described as minor and insignificant.
39 Second, there has been no substantial change in the factual circumstances or in the planning framework, notwithstanding the replacement of the City of Fremantle Town Planning Scheme No 3 by LPS 4, since the grant of development approval.
Conclusion
40 The application for review to the Tribunal should be allowed, and retrospective development approval should be granted for the garage and pool house as built.
Orders
41 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The deemed refusal by the respondent of the development application for retrospective approval of the pool house/garage constructed at No 56 Harvest Road, North Fremantle is set aside, and a decision is substituted that development approval is granted for construction of the pool house/garage in accordance with the plans date stamped 20 November 2007 by the respondent.
(Page 11)
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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