Ratcliffe and City Of Mandurah - [2012] WASAT 30

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RATCLIFFE and CITY OF MANDURAH [2012] WASAT 30

MEMBER: MS M CONNOR (MEMBER)

HEARD: 13 DECEMBER 2011
16 DECEMBER 2011

DELIVERED : 15 FEBRUARY 2012

FILE NO/S: DR 106 of 2011
DR 107 of 2011

BETWEEN: IAN MARK RATCLIFFE
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Direction Alleged unauthorised development involving earthworks and dry stone retaining walls Directed to restore the land as nearly as practicable to its condition immediately before development Subdivision plan showing site levels approved Whether subdivision approval is taken to be approval by responsible authority under local planning scheme for eathworks and retaining walls Whether directions are authorised by s 214 of Planning and Development Act 2005 (WA)

Legislation:

City of Mandurah - Consolidated Local Laws
City of Mandurah Town Planning Scheme No 3, cl 5.1, cl 5.1.3, cl 7.1.1, cl 7.1.3, cl 7.10, cl 9.3
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Local Government Act 1995 (WA)
Planning & Development Act 2005 (WA), s 157, s 157(1)(a), s 211, s 214, s 255(1)
Residential Design Codes of Western Australia (2010), cl 2.1.3, Pt 6, Pt 7

Result:

DR 106 of 2011
Application for review is allowed
The Direction is set aside

DR 107 of 2011
Application for review is allowed
The Direction is set aside

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr G Worth

Solicitors:

Applicant: N/A
Respondent: City of Mandurah

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

Alessi and City of Wanneroo [2010] WASAT 188

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Ratcliffe had undertaken earthworks involving excavation and filling and had constructed a number of dry stone retaining walls on Lot 501 and Lot 502 Ewing Crescent, Dawesville. The City of Mandurah issued two Directions, made pursuant to s 214 of the Planning and Development Act 2005 (WA), to Mr Ratcliffe requiring him to restore Lot 501 and Lot 502 as nearly as practicable to its condition immediately before the works.
Mr Ratcliffe sought review of the Directions as he contended that the subdivision approval issued by the Western Australian Planning Commission had regularised any contravention, as the spot levels denoted on the plan of subdivision accurately reflected the levels of the allegedly unauthorised site works that had been undertaken prior to the subdivision application.
The Tribunal determined that as a consequence of s 157(1)(a) of the Planning and Development Act 2005 (WA) any of the works necessary to enable the subdivision of land, in this case the levels as shown on the subdivision plan, were deemed to be approved under the City of Mandurah Town Planning Scheme No 3 by the approval of the subdivision plan. The Tribunal found that the Directions given by the City of Mandurah were based on a false premise and were therefore not authorised by s 214 of the Planning and Development Act 2005 (WA) and must, accordingly, be set aside.

Introduction

There are two applications for determination in these proceedings, both of which seek to set aside a Direction issued by the City of Mandurah (respondent, Council or City) made pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act).
The City, on 2 March 2011, issued two Directions to the applicant, Mr Ratcliffe, as owner of Lot 501 (No 22) Ewing Crescent, Dawesville and Lot 502 (No 20) Ewing Crescent, Dawesville (collectively referred to as the Land). Both Directions require the applicant to 'restore the Land as nearly as practicable to its condition immediately before the development'.
The 'development' is described in the Direction relating to Lot 501 (DR 106 of 2011) as:
1.Earthworks over most of the property have involved altering the natural ground level through both excavation and filling of land. The excavation works extend along the southern, eastern and portion of the northern side boundaries at various depths up to a maximum depth at the so[u]th eastern corner of approximately 2.2 metres.
2.A limestone rubble wall has been constructed along the eastern and southern side boundaries up to a height of approximately 2.2 [metres]. The limestone rubble is not mortared together and the City has no evidence that the walls are structurally sound.
The particulars of the contravention are described in Item 3 of the Schedule attached to the Direction as '[e]arthworks involving excavation in excess of 600mm have been carried out without obtaining a planning approval from the City of Mandurah as required by clause 7.1.1 of TPS 3'.
The 'development' is described in the Direction relating to Lot 502 (DR 107 of 2011) as:
1.Earthworks have been carried out over the northern side and at the rear of the existing dwelling on the property that have involved altering the natural ground level through both excavation and filling of land. The excavation works extend along the rear eastern boundary up to a depth of approximately 1.2 metres and fill has been placed along the northern boundary up to a height of approximately 900mm.
2.A limestone rubble wall has been constructed along a portion of the rear north eastern and southern boundaries. The walls along these boundaries are up to a height of approximately 600mm. The limestone rubble is not mortared together and the City has no evidence that the walls are structurally sound.
The particulars of the contravention are described in Item 3 of the Schedule attached to the Direction as '[e]arthworks involving excavation in excess of 600mm or fill in excess of 500mm ([a]s specified by Part[s] 6.6 and 6.8 of the Residential Design Codes) have been carried out without obtaining a planning approval from the City of Mandurah as required by clause 7.1.1 of TPS 3'.
Mr Ratcliffe, on 30 March 2011, made application under s 255(1) of the PD Act to have the decisions reviewed.

Planning framework

Clause 7.1.1 of the City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme) provides as follows:
In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this Part.
'Development' is defined in Appendix 1 of TPS 3 and generally has the same meaning as that given to it in the PD Act. In addition, cl 7.1.3 of the Scheme sets out specific circumstances where development approval is required in writing and includes the following:
(c)… where the excavation, filling of land or other earthworks would change the natural contours of the land by more than 600mm;
Clause 9.3 of the Scheme states that:
A person must not:
(a)contravene or fail to comply with the provisions of the Scheme;
(b)use any land or commence or continue to carry out any development within the Scheme area -
(i)otherwise than in accordance with the Scheme;
(ii)unless all approvals required by the Scheme have been granted and issued;
(iii)otherwise than in accordance with any conditions imposed upon the grant and the issue of any approval required by the Scheme; and
(iv)otherwise than in accordance with any standards laid down and any requirements prescribed by the Scheme or determined by the Council under the Scheme with respect to that building or that use.
Mr Ratcliffe admitted that the excavation and filling works undertaken on the Land were in excess of 600 millimetres and that he had not obtained a separate development approval issued by the respondent to carry out those works.
In addition, cl 5.1.3 of the Scheme provides that:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential [Design] Codes shall conform to the provision of those Codes.
The Residential Design Codes of Western Australia (2010) (Codes) provide that a Codes approval is required if the proposed residential development does not conform with the acceptable/or development provision of Pt 6 and Pt 7 as appropriate or requires the exercise of discretion by Council in respect of any matter under the Codes (cl 2.1.3). Element 6.6 - Site Work Requirements of the Codes directly relates to the earthworks in question, whereas Element 6.8 - Privacy Requirements of the Codes may have indirect relevance when considering the impact of built form on adjoining properties.

Background

It was agreed that earthworks involving excavation and filling of the Land have been undertaken over an extended period of time which has resulted in a change to the natural contours of the Land. According to the respondent, the annual aerial photograph data indicates that significant earthworks were carried out over the Land commencing sometime between December 2006 and January 2008. At the time of the issuing of the Directions, the natural contours would have been altered by more than 600 millimetres for which an approval under TPS 3 had not been issued by the respondent.
The evidence also confirms that a number of dry stone retaining walls have been constructed on the Land, some of which have been removed or modified; others still remain. This activity has also occurred without any approvals being issued by the respondent.
It was acknowledged by the respondent that since the issuing of the Directions, Mr Ratcliffe had undertaken works in an effort to remedy the alleged noncompliance issues but maintained that further works were required to satisfy both the planning and building legislation. Mr Ratcliffe told the Tribunal that he has been trying to reinstate the ground levels and reduce the height of the retaining walls in consultation with council officers but has encountered differing views as to how this can be achieved and what works would be acceptable. Mr Ratcliffe contended that the rectification works that have been undertaken result in the levels of the Land being less than 600 millimetres above natural ground level (NGL) and the height of the retaining wall being no higher than 500 millimetres above NGL, and therefore planning or building approval were not required now. He submitted that, as a consequence, both Directions should be set aside.

Should the s 214 Directions be set aside?

During the hearing, Mr Nells, Senior Development Compliance Officer at the City of Mandurah, called on behalf of the respondent, was asked by the Tribunal to indicate on a plan the areas on the Land where the unauthorised works relating to the Directions occurred: see Exhibit 10. Mr Nells identified the following areas:
1)South eastern corner of No 20 - excavation of land over 1.2 metres in depth.
2)Area of No 20 adjacent to No 15B Estuary View Road (No 15B) - fill above 500 millimetres to 600 millimetres above NGL and the construction of a dry stone retaining wall using inconsistent sized rock of different shapes with 'quite big gaps' between rocks.
3)Area of No 20 adjacent to No 13 Estuary View Road (No 13) - logs and sand to about 2 metres in height above NGL along the boundary with No 13.
4)Area of No 20 adjacent to No 18 Ewing Crescent (No 18) - fill, including logs, sand and building rubble, to about 2.2 metres above NGL along the boundary with No 18.
5)Boundary between No 20 and No 22 - excavation and fill with tiered retaining walls at increments of 500 millimetres to 600 millimetres.
6)No 22 - a number of excavations up to 900 millimetres and in particular, the south eastern corner that abuts No 24 Ewing Crescent (No 24) and No 28 Dawesville Road (No 28), excavation was up to 2.2 metres in depth with no adequate retaining.
7)Southern boundary of No 22 - fill and a dry stone retaining wall, constructed with inconsistent sized rocks with 'quite big gaps' between the rocks without any mortar filling, within 500 millimetres of No 24.
Mr Ratcliffe confirmed that Mr Nells' notations on the plans reflected his own understanding of the works referred to in the Directions, with the exception of the works identified along the boundary with No 13.
The Tribunal heard evidence from Mrs Margaret Wegg of No 15B Estuary View Road, Dawesville and Mr Ralph Prestage of No 24 Ewing Crescent, Dawesville. Both are owners of lots adjoining the Land. Both witnesses raised concerns about the alleged unauthorised earthworks and the impacts that these works had had on their property, particularly in regards to the structural integrity of the dry stone retaining walls, the excavations and the composition and compact of the fill on the Land. Other issues that were canvassed included: the adequacy of a dividing fence; stormwater discharging onto No 15B from the Land; and dust emanating from the loose infill sand on site.
The Tribunal undertook a view of the Land and No 15B with the parties. It is the Tribunal's understanding, based on the evidence and from observations made at the site view, that there has been some remedial works undertaken by Mr Ratcliffe on the Land to rectify the alleged unauthorised works. However, it would seem that some of these remedial works may have given rise to further concerns, such as questions relating to the composition and compaction of fill.
Mr Ratcliffe admitted that excavation works were undertaken without approval. However, he argued that the subdivision approval issued by the Western Australian Planning Commission (Commission) on 28 April 2008 for the realignment of the boundary between Lot 50 and Lot 51 (now known as Lot 501 and Lot 502), regularised any contravention as the spot levels denoted on the plan of subdivision, which was approved without a condition relating to ground levels/fill, accurately reflected the levels of the allegedly unauthorised site works that had been undertaken prior to the subdivision application.
Mr Aaron Lucas, Senior Town Planner at the City of Mandurah, also gave evidence on behalf of the respondent. He told the Tribunal that at the time the subdivision application was being considered, the City acted under the assumption that the earthworks had been carried out lawfully and, as such, the assessment of the subdivision focused on the lot sizes and access arrangements.
The 2008 subdivision plan clearly indicated site levels and, as such, formed part of the matters to be considered in determining whether the application should be approved. The Commission referred the subdivision application to the City for its response. In its letter to the Commission on 10 April 2008, the City supported the application recommending the imposition of two conditions relating to a notification on title identifying that the lot is in close proximity to a mosquito breeding area and a requirement for the construction of a dividing fence between 'the proposed dwellings'. No comment was made in relation to the site levels shown on the plan of subdivision.
Approval of the subdivision was issued by the Commission on 28 April 2008 subject to three conditions and one advice note. The conditions required a notification to be included on the deposited plan regarding mosquitoes, the provision of underground power, and arrangements relating to the removal, relocation and/or replacement of electricity supply infrastructure. The advice note related to the provision of underground power.
Section 157 of the PD Act provides as follows:
(1)Subject to subsection (2), when the Commission has approved a plan of subdivision of any land to which a planning scheme relates, that approval is to be taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land that are -
(a)shown on the plan of subdivision; or
(b)required by the Commission to be carried out as a condition of approval of the plan of subdivision.
(2)When approving a plan of subdivision the Commission may determine that the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works specified in the determination, and the determination has effect accordingly.
The Commission's determination did not include any wording to the effect that 'the approval is not to be taken under subsection (1) to be approval by the responsible authority under the planning scheme of the carrying out of works' necessary to enable the subdivision of the Land. Therefore, as a consequence of s 157(1)(a) of the PD Act, the works necessary to enable the subdivision of land, in this case, the levels as shown on the plan of subdivision, are taken to be approval by the City under the planning scheme, and, as such, a separate development approval under TPS 3 by the local government is not required for the carrying out of those works. The fact that the works had already been carried out prior to the subdivision application and the levels on the plan reflected existing levels at the time of the application does not invalidate the approval. To the extent that any element of the Commission's determination has apparent retrospective effect, such an approval is permitted under TPS 3: see cl 7.10.
It would seem that the City has not recognised the significance of the approval issued by the Commission, an approval which clearly indicates site levels to be attained on the Land. As stated in the respondent's statement of facts:
… [The subdivision plan] clearly indicate[s] that there is a difference in ground level along the southern and eastern boundaries of Lot 501 up to a maximum depth of 2 metres. This also indicates that the ground level on the southern boundary of Lot 502 has been excavated by up to 1 metre.
The respondent contended that earthworks involving excavation or fill have caused a change to the natural contours of No 20 and No 22 by more than 600 millimetres for which a planning approval has not been obtained from the respondent. The City has attempted to require the restoration of the Land as nearly as practicable to its condition immediately before the earthworks had been carried out. The Tribunal considers that any earthworks or works associated with attaining the site levels shown on the subdivision plan were deemed to be approved under TPS 3 by the approval of the subdivision plan and, as such, any works undertaken by Mr Ratcliffe that were in conformity with that approval were carried out in accordance with the Scheme.
As to the respondent's argument that earthworks involving fill in excess of 500 millimetres above the NGL had been carried out on No 20 without obtaining a Codes variation, the Tribunal reiterates that any earthworks or works associated with attaining the site levels shown on the subdivision plan were deemed approved under TPS 3 by the approval of the subdivision plan, and as the Codes are incorporated into the Scheme by way of cl 5.1, a separate Codes variation is not required.
These findings are consistent with Alessi and City of Wanneroo [2010] WASAT 188 (Alessi) and although Alessi concerns proceedings relating to s 211 of the PD Act, its considerations of s 157 of the Act are relevant to this application.
It follows that the Directions given by the City to Mr Ratcliffe are not authorised by s 214 of the PD Act. This finding, however, does not negate the requirement imposed upon Mr Ratcliffe to have obtained other obligatory approvals required under the City of Mandurah - Consolidated Local Laws, made pursuant to the Local Government Act 1995 (WA) (LG Act), the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) or regulations made under each of these Acts for the earthworks and retaining walls associated with the subdivisional works. The issues of concern raised by both the respondent and owners of the adjoining properties relating to the composition and compact of fill on the Land, the structural integrity of the retaining walls and discharge of stormwater onto adjoining properties are all issues that go directly to matters contained in the LG Act and the LGMP Act. Powers exist under both of these Acts to remedy noncompliance and, as such, it was open to the respondent to pursue such a course.

However, the issuing of Directions pursuant to s 214 of the PD Act, in these circumstances, is not the appropriate regulatory mechanism available to the respondent.

Conclusion

The Directions given by the City are based on a false premise and are therefore not authorised by s 214 of the PD Act, because Mr Ratcliffe did not undertake works on the Land without obtaining a planning approval under TPS 3. Accordingly, the Directions must be set aside.

Order

For the above reasons, the Tribunal makes the following orders:

DR 106 of 2011

1.The application for review is allowed.
2.The Direction given by the respondent to the applicant on or about 2 March 2011, purportedly pursuant to s 214 of the Planning and Development Act 2005 (WA), is set aside.

DR 107 of 2011

1.The application for review is allowed.
2.The Direction given by the respondent to the applicant on or about 2 March 2011, purportedly pursuant to s 214 of the Planning and Development Act 2005 (WA), is set aside.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER