ROSSI and CITY OF BAYSWATER - [2010] WASAT 33

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ROSSI and CITY OF BAYSWATER [2010] WASAT 33

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 4 MARCH 2010

FILE NO/S: DR 11 of 2010

BETWEEN: ERIC ROSSI
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning Development application Grouped dwellings Condition of development approval requiring setback of single storey boundary walls by 1.5 metres Previous determination of Tribunal on relevantly identical proposal deleted condition requiring setback of same boundary walls by 1.0 metre Orderly and proper planning Consistency in decisionmaking No substantive change in planning framework or circumstances Costs Costs of parties Whether respondent's conduct was unreasonable

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.2 P2
Residential Design Codes of Western Australia (2008), cl 6.3.2 P2
State Administrative Tribunal Act 2004 (WA), s 87(2), s 87(4), s 87(4)(b)

Result:

Application for review allowed
Condition 5 of development approval deleted
Respondent ordered to pay applicant's costs in terms of filing fee and printing, photocopying and postage expenses

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr Damien Martin (Representative)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Hughan and Town of Vincent [2006] WASAT 48
J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Rossi and City of Bayswater [2007] WASAT 136
Tran and Town of Vincent [2009] WASAT 123
Tran and Town of Vincent [2009] WASAT 123 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Eric Rossi sought the deletion of a condition of development approval for the construction of two grouped dwellings requiring the setting back of two single storey boundary walls by 1.5 metres. In a previous proceeding, the Tribunal had deleted a condition imposed on a relevantly identical proposal requiring the setting back of the same boundary walls by 1.0 metre. The planning framework had not changed and there was no substantial or material change in circumstances since the determination of the previous proceeding.
The Tribunal observed that orderly and proper planning requires that planning decisions in relation to the same land should be made in a consistent way where the planning framework is the same and the circumstances have not changed in any substantial or material way. The Tribunal found that the development satisfied the Performance Criteria for boundary walls in cl 6.3.2 P2 of the Residential Design Codes of Western Australia (2008) and, in particular, that the boundary walls would not have any significant adverse effect on the amenity of the adjoining property, for the reasons stated by the Tribunal in the previous proceeding.
The Tribunal found that the conduct of the City of Bayswater in maintaining a contention that the boundary walls will have a detrimental impact on the adjoining property was, in the circumstances of this case, unreasonable. The Tribunal also found that the City of Bayswater failed to genuinely attempt to make a decision on its merits in relation to whether the development satisfied the Performance Criteria. Exceptionally, the Tribunal therefore made an order that the City of Bayswater compensate Mr Rossi for his costs incurred in conducting the proceeding.

Background

On 4 April 2006, Mr Eric Rossi applied to the City of Bayswater (City or Council) for development approval to construct two grouped dwellings at No 67 Salisbury Street, Bedford (site) (Development 1). The site has a dual frontage to Salisbury Street to the northeast and to Nelson Street to the southwest. The grouped dwellings were mirror images of one another, with one addressing each of the streets. Both grouped dwellings included a garage with a 9.47 metre long by 3.4 metre high boundary wall abutting the northwestern boundary of the site. The property to the north-west of the site comprises eight multiple dwellings which are set well back from the common boundary. The part of the property to the north-west adjoining the proposed boundary walls is a grassed area open to the street and a car parking area.
In the report to the ordinary meeting of the Council held on 26 September 2006, the City's Manager, Planning Services recommended that the Council should grant conditional development approval for Development 1. The Council resolved to grant development approval for Development 1 subject to the conditions recommended by the Manager, Planning Services and, in addition, the following condition (condition 1):
1.The two boundary parapet walls (to the garages of the dwellings) be set back 1.0 m from the boundary.
On 20 October 2006, Mr Rossi commenced proceeding DR 355 of 2006 under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the Council's decision to grant conditional development approval (previous proceeding). In particular, in the previous proceeding, Mr Rossi sought the deletion by the Tribunal of condition 1. The previous proceeding was determined by the Tribunal constituted by Senior Sessional Member Ms R Moore on 30 May 2007: see Rossi and City of Bayswater [2007] WASAT 136 (previous reasons). At [30] of the previous reasons, the Tribunal identified the following issues for determination in that review:
1.Whether the two proposed boundary walls would have any significant adverse effect on the amenity of the adjoining property.
2.Whether the two proposed boundary walls satisfy the Performance Criteria for Buildings on Boundary under the [Residential Design Codes of Western Australia (2002) (2002 Codes)].
The Tribunal addressed the first issue at [32] [39] of the previous reasons. At [36] and [38] of the previous reasons, the Tribunal referred, with approval, to the views expressed by the City's Manager, Planning Services in the report to the Council that:
•the length and height of the wall is not expected to contribute excessively to the bulk of the building, nor have a detrimental visual impact to either the street or the adjacent property; and
•… the proposed dwellings are considered to contribute positively to the streetscapes of both Nelson and Salisbury Streets, with good passive surveillance of the streets from the dwellings and adequate areas of open space for landscaping and privacy.
The Tribunal's conclusion in relation to issue 1 was expressed at [39] of the previous reasons as follows:
There is no argument with regard to overshadowing or loss of views from the adjoining property. With regard to visual bulk, the Tribunal prefers the evidence of Mr Brooks and finds that the amenity of the adjoining property is not significantly adversely affected. The wall closest to Nelson Street abuts an unenclosed grassed area which is open to the street. The wall closest to Salisbury Street is adjacent to a car parking area. As noted earlier, the building on the adjoining property is well set back from the common boundary.
The Tribunal addressed the second issue at [40] [51] of the previous reasons. At [40], the Tribunal set out the Performance Criteria for Buildings on Boundary stated in cl 3.3.2 P2 of the 2002 Codes. The Tribunal then proceeded to address the elements of this provision. In particular, the Tribunal said:
41.It has been established that the proposed boundary walls will not have any significant adverse effect on the amenity of the adjoining property. (Issue 1)
42.There is no overshadowing on the adjoining property due to its location to the northwest of the subject site. The closest section of the two storey building is set back 8.0 metres from the common boundary with the subject site. It is a matter of fact that the proposed boundary walls do not restrict direct sun to major openings to habitable rooms or outdoor living areas of the adjoining property.
43.In order to satisfy the Performance Criteria, one of the first three criteria and both of the last two criteria need to be satisfied.
44.With regard to the issue of effective use of space, both the Council officer's report and Mr Brooks agree that the proposed development makes effective use of space. Mr Brooks argues that setting the garage walls 1.0 metre from the boundary will create an unusable area which is difficult to landscape due to lack of sunlight.
…
48.The Council officer's report also states that the walls provide the opportunity to enhance the privacy between the two sites. Mr Brooks is of the opinion that the boundary walls will enhance privacy and provide sound attenuation from traffic on the adjoining property.
…
50.The Tribunal agrees with Mr Brooks and the Council officer's report, and finds that the proposed boundary walls do make effective use of space.
51.The Tribunal finds that the two proposed boundary walls satisfy the Performance Criteria for "Buildings on Boundary" under the Codes (cl .3.2 2).
As the proposed boundary walls satisfied the Performance Criteria and, in particular, as the walls 'will not have any significant adverse effect on the amenity of the adjoining property, notwithstanding the concerns of the respondent and the objections of two of the adjoining landowners' (at [52]), the Tribunal allowed the application for review and deleted condition 1 from the development approval.
Condition 2 of the development approval for Development 1 stated that the approval would lapse if the development is not substantially commenced within two years of the date of the Council's approval on 26 September 2006. Development 1 was not substantially commenced by 26 September 2008 and the development approval, therefore, lapsed.
On 5 August 2009, Mr Rossi applied to the Council for development approval for the construction of two grouped dwellings on the site (Development 2). Development 2 is substantially identical to Development 1. The main difference between the two proposals is the addition of two major openings to the upper level of both proposed dwellings. However, these additional major openings are located centrally within the site and face the common boundary between the grouped dwellings. The new major openings are entirely unrelated to the boundary walls abutting the northwestern boundary and have no impact when viewed from the multiple dwelling development to the northwest.
In a report to the ordinary meeting of the Council held on 8 December 2009, the City's Director of Planning and Development Services recommended that the Council should grant conditional development approval for Development 2. The Director of Planning and Development Services assessed the 'parapet/boundary walls' at para 8 to para 11 of the report. At para 9 of the report, the Director of Planning and Development Services set out the Performance Criteria for Buildings on Boundary which are now contained in cl 6.3.2 P2 of the Residential Design Codes of Western Australia (2008) (Codes) in terms that are essentially identical to cl 3.3.2 P2 of the 2002 Codes. Clause 6.3.2 P2 of the Codes states as follows:
Buildings built up to boundaries other than the street boundary where it is desirable to do so in order to:
•make effective use of space; or
•enhance privacy; or
•otherwise enhance the amenity of the development;
•not have any significant adverse effect on the amenity of the adjoining property; and
•ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
The Director of Planning and Development Services said the following, at para 10 of the report:
In assessing the walls against the Performance criteria of the [Codes], it is considered that the proposal will not unduly affect the amenity of the adjoining property in regards to solar access as the multiple dwelling complex on the adjoining site is set back from the boundary approximately 8 m from the [common] boundary [with] the subject site. The length and height of the wall is not expected to contribute excessively to the bulk of the building, nor have an undue visual impact on either the street or the adjacent property. Given this, the proposed parapet/boundary walls are considered to comply with the intent of the Performance Criteria of the [Codes].
At para 11 of the report, the City's Director of Planning and Development Services noted that 'the proposed walls are the same height and length and are in the same location as those previously approved by the SAT'. The report then set out extracts from the Tribunal's previous reasons.
The Council resolved to grant conditional development approval for Development 2 subject to the conditions proposed by the Director of Planning and Development Services and, in addition, the following condition (condition 5):
5.The two boundary parapet walls (to the garages of the dwellings) be set back 1.5 metres from the boundary.
On 14 January 2010, Mr Rossi commenced this proceeding under s 252(1) of the PD Act for review of the Council's decision to grant conditional development approval for Development 2. In particular, Mr Rossi seeks the deletion by the Tribunal of condition 5.

A second bite at the same cherry

In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71, the Tribunal, comprising myself and Member Mr J Jordan, said, at [54], that:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
Similarly, in Tran and Town of Vincent [2009] WASAT 123 (S) (Tran), Member Mr P McNab said, at [36], that:
… it is important for the process of orderly public sector decision-making that original decision-makers pay careful attention to consistency in that decisionmaking process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given. (original emphasis)
As noted earlier, the boundary walls in Development 2 have precisely the same dimensions and are in precisely the same locations as the boundary walls in Development 1. It is common ground that, despite the replacement of the 2002 Codes by the Codes, the planning framework in relation to the development of the site is the same as it was at the time when the Tribunal made its determination in the previous proceeding. The Tribunal summarised the planning framework at [13] [19] of the previous determination. It is unnecessary to repeat it.
The only changes in circumstances to which the City is able to point are the addition of two major openings to the upper level of the proposed dwellings and the fact that five of the eight owners of the adjoining multiple dwellings submitted objections to Development 2, whereas only two of the owners submitted objections in relation to Development 1. However, as noted earlier, the new major openings are entirely unrelated to the proposed boundary walls and have no impact on the adjoining property to the northwest. While five of the owners of multiple dwellings in the adjoining property submitted objections to Development 2 (in identical form) and one of these owners submitted two further individual objections, whereas only two of these five owners submitted objections to Development 1, it is clear from the previous reasons that the Tribunal carefully considered the objective amenity impacts of the boundary walls on the adjoining property. There has, therefore, been no substantial or material change to the circumstances since the determination of the previous proceeding.
Nevertheless, the City's contention in this proceeding was essentially the same as its unsuccessful contention in the previous proceeding, namely, that 'the parapet wall will have a detrimental impact upon the amenity of the adjoining landowners and as such should be set back in accordance with the requirements of the [Codes] given the height and length of the wall'.
Orderly and proper planning requires that planning decisions be made in a consistent way in relation to a site where the planning framework is the same and the circumstances have not changed in any substantial or material way. The Tribunal finds that Development 2 satisfies the Performance Criteria in cl 6.3.2 P2 of the Codes because the proposed boundary walls make effective use of space (for the reasons at [44] and [50] of the previous reasons), enhance privacy (for the reasons at [48] and [50] of the previous reasons), do not have any significant adverse effect on the amenity of the adjoining property (for the reasons at [39] of the previous reasons) and ensure that direct sun to major openings to habitable rooms and outdoor living areas of the adjoining property is not restricted (for the reasons at [42] of the previous reasons). There is nothing in the objections made by the adjoining owners to Development 2 that would warrant a different conclusion in relation to amenity impact and satisfaction of the Performance Criteria in cl 6.3.2 P2 of the Codes to that reached by the Tribunal in its previous reasons.
The application for review should be allowed and condition 5 should be deleted from the approval. The boundary walls do not require a setback of 1.0 metre, much less a setback of 1.5 metres, under the Codes.

Costs

Mr Rossi has applied for an order under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the City to pay his costs of this proceeding. In Tran, Member Mr P McNab observed, at [29], that '[s]uccessful costs applications in the Tribunal are a 'rare bird' indeed'. At [30] [34], the Tribunal then summarised the authorities and principles in relation to costs in planning review proceedings. I respectfully adopt that summary for the purposes of these reasons.
The circumstances considered in Tran were similar to the present case. On 24 February 2006, the Tribunal allowed an application for review and granted conditional development approval in relation to the development of land at No 36 Paddington Street, North Perth: see Hughan and Town of Vincent [2006] WASAT 48. The development approval lapsed and the subsequent owner of the land applied to the Town of Vincent for approval of an identical proposal. The Town of Vincent refused the second development application for essentially the same reasons as it had refused the first. The applicant for approval sought review by the Tribunal of the Town of Vincent's decision and, to quote Member Mr P McNab in Tran at [14], '[u]nsurprisingly, in June 2009 Senior Sessional Member J Adderley allowed the second review noting that the issues were "substantially the same" as those from 2006': see Tran and Town of Vincent [2009] WASAT 123.
Having reviewed the authorities and principles in relation to costs in planning review proceedings, the Tribunal determined in Tran, at [35], [38] and [39], as follows:
35.In this matter, there is in my view conduct on the part of the Town which can be objectively considered relevantly 'unreasonable' (as that expression emerges from the authorities referred to above) warranting a costs order in the applicants' favour.
…
38.In my respectful opinion, a genuine attempt to assess the matter on its merits would have avoided a second review.
39.Costs should therefore be awarded to the applicants.

Similarly, in this case, the conduct of the City in maintaining its contention that the boundary walls will have a detrimental impact on the amenity of the adjoining property to the northwest and that, accordingly, the Performance Criteria in cl 6.3.2 P2 of the Codes are not satisfied, despite the fact that the planning framework has not changed and the circumstances have not changed in any substantial or material way, was unreasonable, warranting the exercise of discretion in favour of an award of costs under s 87(2) of the SAT Act to Mr Rossi. While the Tribunal would have assessed the City's conduct as relevantly unreasonable in any case, the unreasonableness was compounded by the fact that the costs decision in a similar case in Tran was published two and a half months prior to the commencement of this proceeding.
Furthermore, as in Tran, I do not consider that the City made 'a genuine attempt to assess the matter on its merits': Tran at [38]. Without limiting anything else that may be considered in making an order for the payment of costs under s 87(2) of the SAT Act, s 87(4) of the SAT Act requires the Tribunal to relevantly have regard to whether the decisionmaker 'genuinely attempted to make a decision on its merits': s 87(4)(b) of the SAT Act. In imposing condition 5, the Council not only rejected the reasoned, professional advice of the City's Director of Planning and Development Services (for the second time), but also sought to 'reject' the determination of the Tribunal in the previous proceeding and, indeed, to add an extra 0.5 metre setback to the requirement previously deleted by the Tribunal. In my opinion, the City failed to genuinely attempt to make a decision on its merits in relation to whether the development satisfies the Performance Criteria in cl 6.3.2 P2 of the Codes. This is a further consideration warranting a costs order.

Amount of costs

Quite properly (see J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)), Mr Rossi conducted this proceeding so as to minimise costs. He represented himself at the directions hearing before Member Mr J Jordan on 27 January 2010, prepared the documents submitted to the Tribunal himself and, unlike the previous proceeding, did not retain a town planner to give evidence on his behalf. In my opinion, Mr Rossi should be compensated by the City for the application fee for commencing this proceeding, for any printing or photocopying (at 20 cents per page) and for postage in the conduct of this proceeding.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 8 December 2009 to grant conditional development approval for the construction of two two storey grouped dwellings at No 67 (Lot 205) Salisbury Street, Bedford is varied by:
(a)amending condition 1 to delete 'the date of this letter' and substituting '4 March 2010'; and
(b)deleting condition 5.
3.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), within 21 days of being provided with an account by the applicant of the filing fee for the commencement of this proceeding and any printing or photocopying undertaken for this proceeding (at 20 cents per page) and postage incurred in the conduct of this proceeding, the respondent must pay the amount specified in the account to the applicant.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER