Reis and Environment and Sustainable Development Directorate (Administrative Review)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

REIS & ENVIRONMENT AND SUSTAINABLE DEVELOPMENT DIRECTORATE (Administrative Review) [2012] ACAT 33

AT 128 of 2011
Catchwords: ADMINISTRATIVE REVIEW-Territory plan- front fences-sight lines for vehicles and pedestrians- impact on streetscape - whether fence is a courtyard wall

List of Regulations:   Territory Plan 2008
  Parking and Vehicular Access General Code
  Residential Boundary Fences General Code, Items 2.1
  & 2.3

Residential Zones – Single Dwelling Housing
Development Code, R 36, C36 & R37

Tribunal: Mr B. Hatch, Senior Member

Date of Orders: 22 May 2012
Date of Reasons for Decision: 22 May 2012

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )

AT 128 of 2011

BETWEEN:

GEOFF REIS
Applicant

AND: ENVIRONMENT AND SUSTAINABLE
DEVELOPMENT DIRECTORATE
Respondent

TRIBUNAL: Mr B. Hatch, Senior Member

DATE: 22 May 2012

ORDER

The decision under review is confirmed.

………………………………..
Mr B. Hatch

Senior Member

REASONS FOR DECISION

This is an application for a review of a decision made on 30 September 2011, which was confirmed on reconsideration on 7 December 2011.
The decision refused the proposal for:
·erection of a solid metal fence along the secondary frontage of the subject block (fronting McLaren Crescent, Pearce); and
·erection of a solid metal fence forward of the building line between Blocks 18 and 19, within Section 18 at Pearce;
The Applicant lives at and owns the crown lease being Block 18, Section 18 in Pearce (the land). The land is on the corner of Parkhill Street and McLaren Crescent. The house addresses Parkhill Street, and therefore the McLaren Crescent side to the land is a secondary frontage.
When the Applicant bought the land, a fence was already present along the secondary frontage. That fence was built along the boundary of the land. The Applicant removed that fence and built a new colorbond fence in its place. The fence begins at about the point of the building line to the front of the Applicant’s house, where it faces Parkhill Street, and continues the length of the land along McLaren crescent. The fence follows the boundary of the land until it reaches the adjoining block which is Block 19 Section 18 Pearce. The fence then makes a right angle turn and follows the boundary with that neighbouring block being Block 19, Section 18, Pearce. Following a complaint from that neighbour on McLaren to the Respondent, the Respondent wrote to the Applicant requiring him to lodge a Development Application with respect to the fence and also a gazebo that the Applicant had constructed in his yard. The gazebo has since been approved and is not the subject of these proceedings. The fence was not approved.
The Respondent refused approval based on its interpretation of the Territory Plan. The starting point is the Residential Zones – Single Dwelling Housing Development Code. Element 3 – Built Form which provides as follows:
R36
Free standing walls or fencing are not permitted forward of the building line except where one or more of the following apply:
a) previously approved in an estate development plan
b) consistent with a relevant precinct code
c) it is a gate to a maximum height of 1.8m in an established,
vigorous hedge
d) it is a courtyard wall that meets the requirements of R37/C37.
C36
Fences may be permitted where the proposal meets the requirements contained in the Residential Boundaries Fences General Code.
The evidence of the Respondent is that there is no estate development plan or relevant precinct code; that it is not a gate in a hedge; and that leaves the question as to whether it is a courtyard wall in the terms of R37 and C37. The next question is whether the fence satisfies the requirements in the Residential Boundary Fences General Code. That Code states:
2.1 Front Fences – All Blocks
R1
Front boundary walls or fencing are not permitted forward of the building line except as provided for in:
a) Accordance with the Residential Zone Development Code in the
case of a courtyard wall;
b) A previous approval as part of an Estate Development Plan (EDP);
c) An approved fencing plan;
d) Development conditions released prior to the issue of the lease
e) Items 2.2 – 2.7 of this Code.
AND
f) fences are constructed so that the front fence faces Territory land
This is a mandatory requirement. There are no merit criteria.
I agree that there is no estate development plan or precinct code. The fence is clearly not a gate in a hedge.
The Rule in relation to front fences is mandatory. There can be no front fences except in certain circumstances. Paragraphs a) to d) do not apply to the land, so the test becomes whether items 2.2 – 2.7 of this Code can be relied upon by the Applicant in order to have the fence approved. The relevant Item for the land is 2.3 which states as follows:
2.3 Corner Blocks – where the Residence is Setback from a secondary street frontage
There is no rule applicable.
C4
Where a residence has a secondary frontage to a street and the residence is setback, a fence forward of the building line can be considered subject to the fence being:
a) Transparent type
b) A maximum height of 1.5m above natural ground level
c) Visually mitigated with planting grown as a hedge that is located wholly within the property boundary when grown
C5
The location of the fence does not adversely affect the streetscape qualities.
The Territory Plan (TP) has Rules and Criteria. A Rule is meant to be complied with or a development cannot be approved. The exception to that is where there are Criteria as Item 2.3 has. Item 2.3 does not have a Rule so there is nothing to be complied with. The Criteria are then looked at. The Criteria do not always have to be strictly complied with, and the extent to which Criteria can be flexible in their application depends on the Criteria itself and the individual facts of a proposed development.
The Applicant gave evidence which the Respondent did not challenge that the fence is slightly less than 1.5 metres in height above natural ground level. I find that to be the case. I did not attend at the land for a view, but having heard the evidence and seen the photographs in the T documents, I do not consider that a view would have added anything to my deliberation of the case.
The fence is not transparent. It is a metal fence. The fence cannot comply with this part of the Criteria.
The fence cannot comply with the Criteria in relation to a hedge. The hedge is to be located within the property boundary. The fence is on the boundary of the land and, therefore, the hedge would need to be planted on the land, behind the fence as seen from McLaren Crescent. As the fence is solid and not transparent, the opportunity for the hedge to visually mitigate the fence is not possible. There may be an argument that the hedge growing over the top of the fence may visually mitigate the fence but I do not accept that to be the case.
The final Criteria, C5, is more difficult to determine. The Respondent found that the streetscape is adversely affected. The Applicant gave evidence as to other blocks of land in Pearce that have a variety of fences. The Respondent undertook an analysis of 16 properties. Six of the fences may not comply with the TP. Others are courtyard fences that are approved. One may not need approval. Fences are not unusual in Pearce. The issue is whether the fence can be regarded as adversely affecting the streetscape when the streetscape is already affected by fences in Pearce. I am also aware that the general rule in the TP is that there be no front fences.
Having seen the analysis by the Respondent and looked at the photographs tendered by the Applicant, I do not consider it to be clear cut that the landscape is adversely affected. On balance, taking into account that the fence is a solid fence and in no part transparent, and that planting a hedge on the land would not ameliorate that issue, I have formed the view that the streetscape is adversely affected.
The other issue is whether the fence could be approved as a courtyard wall. The relevant Rule and Criteria are in the Residential Zones- Single Dwelling Housing Development Code. The Rule is:
R37
Courtyard walls forward of the building line have:
a) a total length not exceeding 50% of the width of the block, or 70% in the case of blocks less than 12m wide, at the line of the wall
b) a minimum setback from the front boundary of not less than 50% of the minimum front street setback
c) a maximum height not exceeding 1.8m
d) brick, block or stonework construction, any of which may be combined with feature panels
e) the area between the wall and the front boundary planted with shrubs
f) courtyard walls do not obstruct site lines for vehicles and pedestrians on public paths on driveways in accordance with A2890.1-The
Australian Standard for Off-Street Parking.
This fence does not comply with R37 as
(a)   it exceeds 50% of the width of the block;
(b)   the fence is not set back;
(c)   the fence does comply to the extent that it is 1.8 metres high;
(d)   it is not brick, block or stonework;
(e)   the fence is on the boundary and therefore plantings are not possible between the fence and the boundary; and
(f)    The fence obstructs sight lines (see following).
As the fence does not comply with any Rule, other than height, I can see no purpose in dealing with the relevant Criteria.
The final issue is in relation to sight lines for vehicles. This area is governed by the Parking and Vehicular Access General Code of the TP (item 2.3.1) which provides:
a) Parking layout
    i) The layout of the car park should meet the requirements of
       AS 2890.1:2004, the Australian Standard for Parking
       Facilities, Part 1: Off-street Car Parking. Table 2 and
     Figures 2.2 and 2.3, extracts from the Australian Standard,
     are included for information purposes. Full reference must
       be given to the Australian Standard.
The Standard has a diagram “Figure 3.3 Minimum Sight Lines For Pedestrian Safety” for minimum sight lines. The Standard is based on a fence or other structure being on the property line. The fence along McLaren Crescent is on the property line. When it reaches the end of the land it makes a 90 degree turn to follow the back of the land. At that point is the neighbouring land’s driveway. The Standard requires that in these circumstances the fence along McLaren Crescent end 2 metres from the end, and the fence along the back of the land end 2.5 metres from McLaren Crescent. This creates a triangle which opens up the sight lines. The current fence does not meet the Standard.
The Applicant argued that the footpath being along the edge of the carriageway meant pedestrians could be easily seen. I do not accept that argument. There is no reason a pedestrian could not walk along the boundary.
I confirm the decision under review.

………………………………..
Mr B. Hatch
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 11/128
PARTIES, APPLICANT:	Geoff Reis
PARTIES, RESPONDENT:	Environment and Sustainable Development Directorate
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	ACT Government Solicitor, Mr Stawski
TRIBUNAL MEMBERS:	Mr G. Lunney SC, Senior Member Ms J. Greagg, Member Mr R. Watch, Member
DATES OF HEARING:	13 December 2011
PLACE OF HEARING:	ACAT Canberra

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

[2012] ACAT 33

22 May 2012

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review