Rossiter v City of Fremantle
[2005] WASC 19
ROSSITER & ORS -v- CITY OF FREMANTLE & ANOR [2005] WASC 19
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 19 | |
| Case No: | CIV:1021/2003 | 17 NOVEMBER, 12 DECEMBER 2003 & 25 MARCH 2004 | |
| Coram: | EM HEENAN J | 28/02/05 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari made absolute | ||
| B | |||
| PDF Version |
| Parties: | HELEN MARY ROSSITER RICHARD FRANCIS ROSSITER CITY OF FREMANTLE ANTHONY LEMMON KENNETH ATWELL ADAM |
Catchwords: | Town planning Local government Certiorari Fremantle Town Planning Scheme No 3 Development approval Building licence Authority of delegate of Council to approve departures from planning policy |
Legislation: | Nil |
Case References: | Adam v City of Fremantle [2004] WATPAT 131 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General (NSW) v Quin (1990) 170 CLR 1 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 Ingram v Western Australian Planning Commission [2003] WASCA 77 Lyons v Sutherland Shire Council [2001] NSWCA 430; (2001) 117 LGERA 334 Minister for Immigration and Ethnic Affairs v Polat (1995) 37 ALD 394 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93 Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215 Parramatta City Council v Pestell (1972) 128 CLR 305 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 Attorney General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 292 Day v Pinglen Pty Ltd (1981) 148 CLR 289 Lord v City of Perth [2002] WASC 119 McLean Bros & Rigg Pty Ltd v Grice (1906) 4 CLR 835 Minister for Immigration and Ethnic Affairs v Taveli & Ors (1990) 23 FCR 162 Minister for Natural Resources v New South Wales Aboriginal Lands Council (1987) 9 NSWLR 154 R v Northamptonshire Country Council; Ex parte W [1998] Crown Office Digest 110 Re City of Perth; Ex parte Lord & Ors [2002] WASCA 254 Re David Smith and The West Austrlaian Development Corporation; Ex parte Rundle (1992) 5 WAR 295 Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- RICHARD FRANCIS ROSSITER
ANTHONY LEMMON
Applicants
AND
CITY OF FREMANTLE
First Respondent
KENNETH ATWELL ADAM
Second Respondent
Catchwords:
Town planning - Local government - Certiorari - Fremantle Town Planning Scheme No 3 - Development approval - Building licence - Authority of delegate of Council to approve departures from planning policy
Legislation:
Nil
(Page 2)
Result:
Order nisi for certiorari made absolute
Category: B
Representation:
Counsel:
Applicants : Dr J T Schoombee
Second Respondent : Mr G H Murphy
First Respondent : Mr J C W Skinner
Solicitors:
Applicants : Ian Tait & Co
Second Respondent : Hardy Bowen
First Respondent : McLeods
Case(s) referred to in judgment(s):
Adam v City of Fremantle [2004] WATPAT 131
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney General (NSW) v Quin (1990) 170 CLR 1
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Ingram v Western Australian Planning Commission [2003] WASCA 77
Lyons v Sutherland Shire Council [2001] NSWCA 430; (2001) 117 LGERA 334
Minister for Immigration and Ethnic Affairs v Polat (1995) 37 ALD 394
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93
(Page 3)
Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215
Parramatta City Council v Pestell (1972) 128 CLR 305
R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Case(s) also cited:
Attorney General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 292
Day v Pinglen Pty Ltd (1981) 148 CLR 289
Lord v City of Perth [2002] WASC 119
McLean Bros & Rigg Pty Ltd v Grice (1906) 4 CLR 835
Minister for Immigration and Ethnic Affairs v Taveli & Ors (1990) 23 FCR 162
Minister for Natural Resources v New South Wales Aboriginal Lands Council (1987) 9 NSWLR 154
R v Northamptonshire Country Council; Ex parte W [1998] Crown Office Digest 110
Re City of Perth; Ex parte Lord & Ors [2002] WASCA 254
Re David Smith and The West Austrlaian Development Corporation; Ex parte Rundle (1992) 5 WAR 295
Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36
(Page 4)
1 EM HEENAN J: The applicants challenge the validity of two grants of planning approval and the grant of a building licence by the City of Fremantle for development on Survey Strata lot 2, 79 Thompson Road, North Fremantle (Lot 2). This is one of 10 lots on Survey Strata Plan 36206 which was created in about 1999 to amalgamate the former Lot 213 Thompson Road and Lots 217, 218 and 219 Eucla Court, North Fremantle. All the land in this area is slightly to the east of Stirling Highway on land rising as it goes further east. It lies on the narrowest part of the stretch of land between Port Beach and the Swan River. Much of the land, including Lots 2, 3, 4 and 5 directly affected by this application, has the potential for views to the west and northwest overlooking the ocean, Gage Roads and extending towards Rottnest. These aspects are prized features of Lots 1 - 5 Thompson Road and the designs for the apartment houses built, or to be built, in the area reflect this.
2 A proposed construction of a dwelling, alteration to the surface levels of the ground or the construction of a retaining wall on land in this area is a "development" which may not be commenced by any person unless all necessary approvals, consents or licences required by the City of Fremantle: Town Planning Scheme No 3 ("the Scheme"), have first been granted (cl 12 of the Scheme). Any necessary approval for development must be obtained by application to the Council (cl 78 of the Scheme). On such an application the procedure set out in Pt V of the Scheme, involving, where considered necessary, advertising, comment and determination by Council will follow. Under cl 91 of the Scheme the Council may delegate to a Standing Committee of the Council or to an officer of the Council, any of the powers which it is entitled to exercise by virtue of the Scheme, including the power of determination and approval of applications for the approval of development.
3 In this case, the applicants contend that the planning approval first granted by the Council for Lot 2 on or about 11 June 2001 was granted by a delegate in excess of, or without regard to conditions affecting, his delegated power and also without regard to relevant considerations. They also contend that the second approval granted on 8 October 2001 was granted without regard to relevant considerations and, in fact, as a result of irrelevant considerations and is thereby invalid. The same is said about the grant of a building licence on 6 May 2002.
4 An order nisi for a writ of certiorari to quash the grant of these approvals by the first respondent was granted by Barker J on 14 August 2003. It provided:
(Page 5)
- "1. The City of Fremantle do show cause before a single Judge of this Court why a writ of certiorari should not be issued against it setting aside and quashing:
1.1 the Planning Approval purportedly granted on or about 11 June 2001 by the City of Fremantle through its Director Urban Management ('the Director') acting under delegated power in respect of the application for Planning Approval of Mr Kenneth Atwell Adam, the second respondent, dated 10 April 2001 ('the Application');
1.2 the Planning Approval for a retaining wall purportedly granted to the second respondent by the City of Fremantle through its Development Application Committee on or about 8 October 2001 ('the DAC Retaining Wall Approval'); and
1.3 the Building Licence purportedly granted on or about 6 May 2002 by the City of Fremantle pursuant to the Planning Approval or the DAC Retaining Wall Approval, in respect of the application for Building Approval of Mr Adam
on the grounds that the Planning Approval and the Building Approval are null and void in that they were made in excess of jurisdiction or without justification on each of the grounds set out below."
6 Essentially, the applicants contend that it was beyond the scope of the power of the delegate, the Director of Urban Management, to grant the planning approval of 11 March 2001 because the approval necessarily involved authorising an increase in the average ground level of the building site of more than one metre in height without referral to the Council which, so it was submitted, was expressly required by the terms of the first respondent's "DBH 3 Development Levels (Extent of Cut and Fill)" policy. Alternatively, if the extent of the elevation of the ground level for the building was less than one metre, the applicants submit that the Director failed to have regard to any of the factors necessary for his
(Page 6)
- consideration when authorising such a step under the cut and fill policy. This issue involves an examination of the powers of the delegate and a consideration of the Council's cut and fill policy. Also, it is necessary for attention to be given to ascertaining the average ground level of Lot 2 at the time of the application. This involves a somewhat complicated examination of the evidence relating to the levels of various parts of the lands in the area. This controversy also extends to several of the subsequent grounds upon which the applicants challenge the development approval decisions.
7 The applicants also contend that on or about 8 October 2001 the first respondent, by its Development Assessment Committee ("DAC"), purported to approve the second respondent's application of January 2001 for planning approval for a retaining wall. The submission is that this approval is void and of no force or effect on the grounds that it was based on an irrelevant consideration and constituted a grossly unreasonable decision, in that it relied on the conclusion that the height of the retaining wall sought was consistent with the finished ground level approved for Lot 2, in circumstances where no such finished ground level had been validly approved by the Council or by any of its delegates. The applicants also contend that this approval was granted in breach of natural justice in that objections lodged to the application by the applicants were not considered by the DAC. The applicants also contend that, in reaching this decision, the first respondent failed to have regard to relevant considerations, namely the standing policies DBH 3 and DGN 5 for Eucla Court, North Fremantle.
8 The 11 June 2001 approval granted by the first respondent includes a relaxation of the minimum set back distance prescribed by the Scheme. The set-back in question is the distance between the northern boundary of Lot 2 and the north facing wall and the balcony at the first floor level. The applicants contend that the minimum permitted set back is 6 metres but that the approval which was granted is for a set back of 5.5 metres whereas, in fact, the set back sought and authorised was for 3.5 metres measured from the edge of the first floor balcony. The applicants also contend that, in any event, the Director of Urban Management, who authorised the set back, did so without regard to the conditions prescribed by cl 49 of the Scheme or of the policy requirements of DGN 5.
9 Finally, the applicants contend that the approval for development also included an approval of development for a much reduced area of open space for the lot, as distinguished from the area occupied by the building. This is only 26 per cent of the entire area instead of 50 per cent
(Page 7)
- as required by cl 49 and Table 2 of the Scheme. The contention is that this reduction in the open space requirement was approved without any consideration, or fulfilment of, the conditions prescribed by cl 49 of the Scheme or otherwise.
10 The applicants also contend that the Building Licence granted by the first respondent was granted without jurisdiction in that it was granted upon, and was dependent upon, the assumption that the earlier development approvals were valid and, if not, must itself be invalid.
City of Fremantle - procedures for the grant of development approval
11 The ability of the City of Fremantle to delegate, under cl 91 of the Scheme, to a standing committee of the Council or to an officer of the Council any of its powers which it is entitled to exercise has already been noted. There is a standing delegation granted by the first respondent entitled "Policy DA 6 Delegated Authority to Approve or Refuse Planning Applications (Policy DA 6)" which records the functions that have been delegated to the DAC and the Director Urban Management in relation to planning applications (AB 322 - 323). By this instrument those powers were delegated as follows:
"1.1 Powers of the Development Assessment Committee
The Development Assessment Committee is delegated all the powers of the Council, apart from the power to delegate functions, subject to Standing Orders (where the Committee resolves to forward an application to Council for consideration). This includes all powers delegated to the Director, Urban Management. In exercising its powers the Committee is required to fulfil all the functions and duties established by the Scheme, within the policies determined by the Council. Any specific resolution of Council overrides this Policy.
1.2 Powers of the Director, Urban Management
The Director, Urban Management is delegated all the powers specified in section 6 and 7 of 'D.A.7 Development Assessment Unit and delegated authority to Director, Urban Management'.
This does not include power to delegate functions.
(Page 8)
- The Manager Development Assessments and planning officers are delegated the ability to sign planning decision letters on behalf of the Director, Urban Management, which are in accordance with the Council, Development Assessment Committee and DAU Minutes."
- The reference to "DA 7 Development Assessment Unit and Delegated Authority to Director, Urban Management" in subpar 1.2, above, is a reference to the Council's Policy DA 7 which details the operation and functions of the Development Assessment Unit ("DAU") and the delegation of Planning Application decisions to the Director, Urban Management. That lengthy document (AB 324 - 327) describes the membership of the DAU and prescribes procedures for its meetings, agendas, minutes and other procedural matters. Under subcl 6 an extensive range of functions is listed as being within the delegated authority of the Director of Urban Management through the DAU process. These include:
"6(a) All of the powers that are required to fulfil the functions and duties of Town Planning Scheme No 3 other than delegation functions under clause 91."
Under subcl 6(c) the policy states that, where objections to applications are received following the advertising of the proposal, the Director of Urban Management is delegated the authority to determine the submissions by:
"(i) imposing conditions on development that give consideration to objections raised; or
(ii) mediating a solution to the satisfaction and specification of the Town Planning Scheme and Policies of the Council."
Accordingly, while it is apparent that the powers delegated to the DAC and to the Director of Urban Management under these policies are ample, both policies expressly provide, in effect, that in the exercise of delegated powers, the decision-maker must act within the scope of policies determined by the Council and, in the case of the DAC, that any specific resolution of Council overrides the policy. That express provision is not repeated in those terms in relation to the delegation granted to the Director of Urban Management but is, nevertheless, implicit because of the provisions of DA 6 1.2 and DA 7 6(c), meaning that either delegate is
(Page 9)
- bound to act within and to comply with other standing policies of the City or specific resolutions of its Council.
City of Fremantle Policy DBH 3 "Development Levels (Extent of Cut and Fill)"
12 One of the standing policies of the first respondent is policy DBH 3 - Development Levels (Extent of Cut and Fill). The appellants submit, and the respondents accept, that this both restricts and conditions the power or powers of the delegates - whether the DAC or the Director of Urban Management. It is a detailed policy (AB 352 - 354) but its objective is said to be to provide guidelines for the consideration and assessment of cut and fill applications to any land within the City of Fremantle, taking into account Council's encouragement for the retention of natural topography wherever possible. Its terms include the following:
"Policy
1. Where an existing ground level is proposed to be altered either as part of a building proposal or simply to alter the gradient of the land a development approval must be obtained, this may form part of a development application for the land. Such applications for cut and/or fill must include detailed site plans of existing levels, proposed finished levels, nominated finished floor level and heights of proposed retaining walls.
2. In assessing applications for cut and/or fill (ground level changes) development of a lot, the Council shall have due regard to the impact of the proposed altered ground levels on adjoining properties and on the amenity of the area.
3. The following general consideration shall be taken into account when assessing an application to alter the natural ground level:
(i) Council encourages the retention of the natural ground level and does not support the raising of ground level for the purposes of raising the overall development height (whilst maintaining the building height) or obtaining views. Where possible sites should be a combination of cut and fill, which both avoids the import of additional fill and maintains more natural ground levels.
(Page 10)
- (ii) Raised floor levels are discouraged where they contribute to other issues such as increasing building bulk and overlooking problems.
(iii) Where sites have large slopes, consideration should be given to stepping the building down/up the slope rather than maintaining a single floor level.
- 4 Building envelopes
A building envelope is defined as the area of land that is or will be contained by a building and associated structures, including the building pad.
4.1 In determining the altered level of a building envelope (a level to the underside of the floor) on a development application, the average natural ground level within the area covered by the building envelope shall be considered as a guide for an acceptable fill level (refer to diagram 1) [diagram omitted here].
4.2 The Director, Urban Management may approve fill to a maximum height of 1 metre above the average ground level for a building without referral to Council where it can be shown that the increased height in association with a building will not affect the amenity of the adjoining properties.
4.3 Increased levels that exceed 1 metre (average) are to be referred to the Development Assessment Committee for consideration.
5. Land adjacent to a boundary
5.1 Where the application shows extension of any fill up to a boundary or boundaries where the height of any fill or retaining wall exceeds 1.0 metre, the application shall be referred to the Development Assessment Committee for consideration.
(Page 11)
- 5.2 In determining an application where filling or retaining walls are built up to a boundary, due consideration shall be given to the affects of any surcharge on adjoining buildings or property in addition to amenity issues."
13 All the parties to these proceedings accepted that, if DBH 3 "Development Levels (Extent of Cut and Fill)" policy applies to the development applications for which approval was sought by the second respondent then, if the existing ground level was to be filled to an average extent of more than 1 metre, the application could not have been determined by the Director but must have been referred for consideration and determination by the DAC (see cl 4.3 of the policy). Similarly, all the parties accept that if any of the applications of the second respondent for approval involved the extension of any fill up to a boundary to a height exceeding 1 metre then the application could not be dealt with by the Director and must have been referred to the DAC.
14 It is also obvious that if the policy DBH 3 applies but the fill sought is to a height less than 1 metre, it could be approved by the Director if it could be shown that the increased height in association with the building would not affect the amenity of the adjoining properties and, in cases of fill of less than 1 metre at a retaining wall by a boundary, where due consideration was given to the effects of any surcharge on the adjoining buildings or property in addition to amenity issues.
15 There is no doubt that, the principal decision for the approval of the construction of the dwelling on Lot 2, which was granted on or about 11 June 2001, was the decision of the Director of Urban Management and not a decision of the DAC. It is also beyond doubt that, in reaching that decision, the Director did not consider or apply the standing policy DBH 3 (Development Levels (Extent of Cut and Fill)) because, as the Director himself said:
"When considering the Application including the Report, and granting the Planning Approval, I was of the opinion that the application did not involve any fill so it was not necessary to consider Policy DBH 3."
(Affidavit of Mr G H Broad, sworn 28 April 2003 - par 23).
(Page 12)
16 Consequently, the question of whether or not the delegate acted within power, depends on whether or not Policy DBH 3 applies to the circumstances of this application for development approval. If it does, there can be no question of whether or not the Director made his decision with regard to relevant considerations, namely that the requirements of cl 4.2 and cl 5.2 of that policy were addressed and evaluated by the Director, because, quite plainly they were not.
17 The application of Policy DBH 3 (where it applies) must obviously take into regard the average ground level of the land in question. Where the land remains in its natural state this should not usually present any difficulty, being a matter for survey and averaging even where the land is sloping or has an irregular surface. However, in the present case the ascertainment of the average ground level was complicated by the original configuration of the land before the 1999 subdivision which absorbed it within Strata Plan 36206. That strata plan combined a number of pre-existing lots which had long before been subdivided and which had established levels. Two of those lots were adjacent and were Lots 213 and 219. The average surface level for the old Lot 213 was either 10.48 or 10.66 metres on the Australian Datum Level (ADL). While the average surface level of the old Lot 219 immediately to the east, and higher up the hill, was 11.2 ADL.
18 The boundary between these two old lots and the line where there was a stepped rise from Lot 213 to Lot 219 ran north/south along the full length of the new Lot 2 but relatively close to the eastern boundary of Lot 2. Consequently, at the date of the 1999 subdivision Lot 2 had two levels, being the surface levels of parts of the old Lots 213 and 219 but, by far the greater part of the new Lot 2, was at the lower level of the old Lot 213. To say the least, this left the determination of the average ground level of the new Lot 2 open to question.
19 This did not go unnoticed by the City of Fremantle because the first respondent had developed a specific policy DGN 5 "ICI site - 77 Thompson Road and 69 Rule Street, North Fremantle" known as the "Thompson Road Policy" to deal with the re-development of the land in the area. This was first adopted by the City of Fremantle on 21 March 1988 and last amended on 20 July 1998. This policy is "Exhibit TAL 7" to the affidavit of the applicant Mr T A Lemmon, sworn 4 March (AB 89 - 92).
(Page 13)
20 The stated objective of this Policy DGN 5 is "to secure the orderly redevelopment of the ICI site for residential use while protecting amenity, heritage and townscape values of the site and encouraging compatible non-residential uses". It deals with building density and, in subcl (2), addresses the extent of the fill which could be approved for each lot. It also deals with boundary walls, front fences and set backs. Under cl 2(iv), under the heading "Cut and Fill", it states that the following levels are applicable to each lot as depicted on Map 1. Those are levels which had been derived from the "As Constructed" Earthwork Plan dated 28 November 1997. There then follows a table identifying each of the lots and stating the height datum level where that had been fixed. The table includes Lots 213 and 219 and provides as follows:
LotStreetHeight Datum Level
213 Thompson Road N/A
219 Eucla Court 11.2
- No level is attributed to Lot 213, at least near where it meets Lot 219. Some other areas in the proposed subdivision, not the subject land but small lots further to the southeast did not have levels assigned to them either (Lots 1 - 4), and with reference to those lots, the Policy records:
"As such any development will be subject to the application of Council's cut and fill policy and heights of buildings will be required to be comparable to development on adjoining lots, those being Lots 201, 208, 102 and 5".
It must be emphasised, however, that this is not a direct reference to either Lot 213 or 219 or to any part of the land which ultimately became Lot 2 in the new subdivision.
21 When dealing with earlier applications for development approval on Lots 3 - 6 in Thompson Road, the Council undertook a detailed review of the planning history for the adjacent area. This is set out in a document of the first respondent (AB 83 - 88) dealing with development approval applications for Lots 3, 4, 5 and 6 which, at that stage, were deferred. That document refers to Council policy DGM 5 "ICI site - 77 Thompson Road and 69 Rule Street, North Fremantle", already mentioned, as being a policy relevant for consideration when determining those applications and, in doing so, says:
(Page 14)
- "Section (iv) in the Policy relates to cut and fill and Table 1 provides details of the applicable ground levels for Lots for this area. In relation to the subject sites they would have formed part of Lot 219 and 218 as indicated on Map 1. Table 1 states that the Height Datum Level for Lot 219 and 218 should be 11.2 metres and 12.1 metres, respectively. These levels are based on a previously approved plan of subdivision and would not strictly apply to the current configuration of lots on the site."
22 The document goes on to identify the datum levels, on DGM 5 for each of Lots 2, 4, 5 and 6, for the levels proposed by the individual applications and the levels previously approved. In the discussion which followed in compliance with the policy, attention was given to restricting the height of new houses to a maximum level above the stipulated datum level and otherwise emphasised the importance of both the height and datum levels to previously approved or otherwise acceptable levels which would ensure harmonious and consistent results. Without expressly saying so, these policy documents and internal reports of the first respondent obviously treat the height considerations for any proposed development as beginning from the approved datum level (ie approved ground level) and extending to no greater than the maximum height permitted above that level. In other words, they assume that the floor of the building will be constructed at ground level at the approved datum level from which all other measurements will then be taken.
23 This assumption explains the reference to the cut and fill policy because another, unstated, but obvious assumption in that policy, is that if the base of the building to be constructed is below the approved ground level then cutting will be involved and, if above the established or approved ground level then filling will be involved, in either case bringing into application the cut and fill policy.
24 In August 1999 the City of Fremantle approved plans for apartment-style buildings to be constructed on Lots 3, 4, 5 and 6 of 77 - 79 Thompson Road. Revised plans for such buildings were submitted on behalf of the owners on 30 June 2000 and were approved, subject to certain modifications, in September 2000. Those plans, as conditionally approved, disclosed a proposal to build a series of town houses or apartments on the land which had been created from the 1999 subdivision in such a fashion that the eastern and western walls of each apartment would be adjoining, giving each apartment an aspect over public open space to the north and also over land to the south. Each building or apartment would be two or three storeys, covered by a gabled
(Page 15)
- roof, with balconies on the north and south sides. From the balconies and from north or south-facing windows there would be views extending over the ocean. The line of apartments on the subdivided blocks would generally follow up the hillside, with each building or apartment being on a different level; the lowest at the west and the highest at the east and at stepped intervals between. On the original application for approval the drawings of the proposed developments included balconies, already mentioned, which also would be at stepped intervals progressing up the line of the hillside from lot to lot.
25 The applicants in these proceedings are the owners, respectively, of Lots 3, 4 and 5 Thompson Road, each of which is to the east of Lot 2, that is, further up the hillside. Apartments or town houses have been constructed on Lots 3, 4 and 5 which are generally in conformity with the design originally proposed at the time of subdivision in 1999, in that each is on a different level with the adjoining building on the eastern side slightly higher. This stepped progression up the hillside extends not only to the ground level of each of the apartments but to the upper floor levels and, significantly, to the north-facing balconies. As yet, no apartment or dwelling has been constructed on Lot 2, although some initial work was begun on behalf of the second respondent but which has since ceased pending a decision on the challenge to the validity of the planning approvals and building licence granted in respect of Lot 2. A general depiction of the proposed development on all the lots, including Lot 2, can be found in the application book (AB 80) showing the stepped progression of each of the structures on the several lots up the hillside. It is to be emphasised, however, that that drawing was not proffered or treated as any application for development approval in respect of Lot 2.
Power of Decision Maker - Delegate
26 Where the power of any body, whether a delegate or not, is dependent upon the establishment of some criterion which conditions jurisdiction, then the satisfaction of that criterion is essential to the valid exercise of the decision maker's power. A court undertaking judicial review of the decision of such a person, whether a delegate or not, can enquire into and determine the existence of this jurisdictional condition for the decision maker's authority on the evidence before it - Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150 - 151 and Lyons v Sutherland Shire Council [2001] NSWCA 430; (2001) 117 LGERA 334. Should the decision maker or delegate err in construing or applying the criteria which are set by the authority which grants power to him, then any such error will affect the
(Page 16)
- exercise of the decision-making power and may result in the grant of certiorari to quash on the basis of an error of law or lack of jurisdiction - Ingram v Western Australian Planning Commission [2003] WASCA 77 at [16].
Site levels
27 Whether the first respondent's policy DBH 3 "Development Levels (Extent of Cut and Fill)" required the second respondent's application for development approval for the construction of his proposed dwelling on Lot 2 to be referred to the DAC involves a question of whether or not the building level was to be increased above the average ground level by more than 1.0 metre. However, the determination of the initial reference point, namely the average ground level for Lot 2, presented the problems which have already been described.
28 The original Oldfield Knott Architects Pty Ltd drawings prepared for the 1999 subdivision contain a series of levels at different parts of all the lots intended to form parts of the proposed subdivision, including Lot 2. These show that the ADLs for the narrow strip of the proposed Lot 2 on the eastern side forming part of the old Lot 219 were at 11.20, whereas the levels on the western boundary ranged from 10.50 at the south-west to 9.49 on the north-west with other readings at different points of the lot confirming that the general trend of the slope downhill was from the south-east to the north-west.
29 In February 2000 the second respondent, who at that stage had entered into a contract to purchase Lot 2 but which was then still executory, applied to the City of Fremantle for a ruling that the ADL for the whole of Lot 2 should be set at 11.2. Mr Adam has given evidence by affidavit to the effect that he sought this assurance in order to decide whether or not he would complete his contract to purchase Lot 2 because, accordingly to him, when he entered into the contract he had not realised that there was any possibility that the average ground level might be treated as anything less than 11.20. His application for this ruling was not a formal application for development approval, nor was it any other application recognised under the Town Planning Scheme, yet it was deliberated upon by the DAC and by the first respondent on 27 March 2000. The first respondent's records relating to that enquiry set out the background, including the first respondent's assessment of the average ground level for Lot 2 at the time (AB 328 - 331). In describing the background, the first respondent's records show:
(Page 17)
- "• On 25 January 1999, the Director Urban Management recommended approval to the Western Australian Planning Commission for a survey strata subdivision into 10 survey strata lots. The revised plan dated 19 January 1999 did not indicate any levels across the site and Council recommended the following planning condition to the WAPC:-
'The applicant providing details of the proposed levels across the whole of the site. The levels of the strata lots shall be determined from the existing contours with no additional fill being introduced. These levels shall be measured as AHD levels and submitted by a licensed surveyor'.
- The Western Australian Planning Commission approved the survey strata on 9 March 1999. In terms of the Council's recommendation for details of the levels to be provided across the whole site, the Commission considered this was an inappropriate condition and this information was only included as the following advice note on the approval:-
'The applicant is advised to liaise with the local government with respect to levels across the proposed sites'.
In summary, in terms of the subject lot there has been no set levels established for the lot. Any amendment must be considered on its merits in accordance with Council's Policy for the area.
Application
A submission has been received from the applicant (dated 2 February 2000) requesting a minor modification to the as constructed levels for this lot. The applicant seeks to retain the current as constructed level of 11.2 metres along the eastern portion (side boundary) of the site and extend this level laterally across the balance of the site which is approximately 5.0 metres. The change in level is currently demarcated on site by a retaining wall. Given that the lot frontage is only 6.5 metres the applicant
(Page 18)
- would need to amend the levels on the site in order to create a site that is practically developable."
- The first respondent's Minute dealing with this application goes on to identify the formal policies of the City of Fremantle which apply to the enquiry, identifying them as Policy DGM 5 "Policy for Eucla Court" and referring to s (iv) relating to cut and fill, saying:
"Section (iv) of the Policy relates to Cut and Fill and Table 1 and provides details of the applicable ground levels for Lots for this area. In relation to the subject site this would have formed part of Lots 219 and 213 as indicated on Map 1 (referred to Attachment 9). Table 1 states that the height datum level for Lot 219 should be 11.2 metres and for Lot 213 a level has not been specified. These levels are based on a previously approved plan of subdivision and would not strictly apply to the current configuration of lots on the site.
However, the Policy does provide a basis for considering any modification to the levels within this area. The proposal to amend the levels from 10.23 metres to 11.2 metres is considered consistent with the objectives of this Policy that essentially seeks to ensure the orderly development of this whole area."
31 The reference to the plans of 3 February 2000 seems to be a reference to a set of plans submitted by the second respondent to the City of Fremantle under cover of a letter dated 2 February 2000 which are to be found at AB 379, although those plans prepared by the second respondent are actually dated 31 January 2000. The levels on this plan for the north-west corner of Lot 2 are shown as 9.80 and at a point towards the north-east corner, but before the step up to the level of the old Lot 219 at 11.20, the ADL is shown as 10.68. The ADL of the existing retaining wall along the northern boundary is shown as 11.21. In a cross-section diagram on that plan, taken through the centre of the site (that is, further south than the northern boundary), the level at the western boundary is shown as being 10.23 from which it was proposed that fill would be placed to raise the ground level immediately beneath the proposed building slab to 11.20. This appears to be the source of the reference in
(Page 19)
- the first respondent's minute to the ADL of Lot 2 being 10.23 on the datum level, notwithstanding that this was a level at the mid point of the slope along the lower western boundary.
32 The first respondent's minute of the DAC meeting of February 1999 also includes the following passage (AB 330):
"The proposed fill level would increase the height of any future dwelling house by approximately 0.9 metres. Any potential impact on the adjoining Lot 1 to the south of the site in terms of increased bulk or scale may be ameliorated by effective design of any proposed dwelling on the site."
33 In about January 2002 the staff of the first respondent prepared a further report (DAU 02-014) for the purpose of considering the second respondent's request for a reconsideration of its application for approval of development on Lot 2. This report: "Thompson Road No 79 (Strata Lot 2) North Fremantle proposed two storey grouped dwelling - reconsideration of planning approval conditions (T 7/77-79 DA/01 (ST) (Delegated Approval)", also contains a comprehensive account of the background and the grounds of objections raised by the applicants (see AB 240-252). In discussing the significance and application of Policy DBH 3 "Development Levels (Extent of Cut and Fill)" (at AB 250) the report says:
"The Applicant [the second respondent Mr Adam] has strongly claimed that the roof ridge height and subsequent development height is permissible under a separate Policy on the site which specifies a maximum roof ridge height of 10m from the approved datum height level. However it should be pointed out that the site has been filled from a natural ground level of RL 10.23 to the current datum of RL 11.2. In any given circumstance, this is considered a fill of 1m. This previous fill would be possible under Point 4.1 and 4.2 of the Policy. Consequently there should not be any further fill, regardless, to increase development for level heights from the existing datum level of RL 11.2.
The additional floor height increase is in direct contradiction to objectives of this policy, in specific to Point 3(ii). Therefore the roof ridge height should be reduced and maintained at height level RL 2 20.2 as required for Condition 1 of the previous approval."
(Page 20)
34 Plainly enough, the author of Report DAU 02-014 and the members of the DAC who accepted the recommendations which it contained were treating the natural ground level of Lot 2 as being 10.23. Equally plainly, they were treating the Policy DB 3 "Development Levels (Extent of Cut and Fill)" as applying to the application and potentially authorising the placement of fill on Lot 2, in practical terms, of 1 metre from 10.23 to 11.2 levels.
35 Despite the manner in which the first respondent treated the natural ground level of Lot 2 as being at ADL 10.23 on these occasions, selection of that figure of 10.23 for that level may be open to question because there is nothing in the evidence to show that an average ground level for Lot 2 was ever actually calculated, still less that the product of such an effort was accepted by the first respondent. The reason for the absence of any such figure can only be inferred from the background circumstances. The probabilities satisfy me that, having regard to the general sloping nature of the ground and the fact that a strip along the eastern edge, previously forming part of the old Lot 219, was at the higher level of 11.2, this background would make any such exercise to calculate an average ground level an arbitrary one, so that what was needed was a practical assessment by the local authority as, indeed, had been contemplated by the WAPC back in 1999 when the subdivisional application was approved. On this basis, whatever may be the shortcomings in the method followed, the first respondent has treated the average natural ground level of Lot 2 as being 10.23 and, in particular, it adopted that figure when considering the important practical question of what additional fill might be authorised for the site when giving its advisory decision in February 2000.
36 That advisory decision of the DAC in February 2000 has been portrayed by the second respondent as a formal approval of a ground level of 11.20 metres for the entire site. Mr Adam urged that on the respondent in support of his application for development and approval and again on occasions when he sought relaxation of conditions imposed by that approval after it was given or reconsideration of those decisions. By his counsel he maintained that description of the character of the February 2000 decision of the DAC at the hearing of this present application. I cannot accept that characterisation of the resolution of the DAC of February 2000, nor do I consider that such an informal indicative decision can be treated as being in any way binding or determinative for the task faced by the first respondent (whether by its Director or by the DAC) when exercising its statutory role to consider and determine an actual application for development approval.
(Page 21)
37 When a formal application for development approval comes before the first respondent it must be fully considered on that occasion with regard to all relevant considerations, including applicable policies of the Council, and the decision maker must determine the application on the materials then available. Such a decision will necessarily require the decision maker to have regard to the applicable policies and, if the decision involves the insertion of fill to any extent, the application of Policy DBH 3.
38 If there has been, as there was in this case, some earlier indicative opinion given by the DAC about approved levels for the site, that will not relieve the decision maker from the responsibility himself of determining that aspect of the application on the merits as they then stand, no doubt having regard to, but necessarily re-appraising, any earlier indicative decision: R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 and, especially where the decision-maker is a delegate, it remains necessary for the delegate to reach his own decision: Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215 at 230 - 231. Indeed, the early advisory decision of February 2000 by the DAC said no more than the application to elevate the levels would be supported "subject to the submission of a development application for the approval of the details".
39 Considerable efforts were made by the applicants to establish, objectively, what was the natural ground level or average natural ground level of Lot 2. One of the applicants, Mr T A Lemmon, having assembled plans and diagrams of the area, made a series of calculations in an attempt to establish the average ground level of Lot 2, or more particularly of the building envelope identified by cl 4 of Policy DGH 3. Applying an averaging formula, Mr Lemmon concluded that the average ground level for cut and fill applications was RL 10.46. These figures were submitted to a surveyor, Mr R J Benetti, who, by affidavit sworn 3 March 2003, deposed that he had checked Mr Lemmon's calculations and was of the view that they were correct and that the average natural height for survey of strata Lot 2 based on the Oldfield Knott plans, was RL 10.46.
40 There is no reason to doubt the accuracy of Mr Lemmon's calculations nor their verification by Mr Benetti, but the exercise provides an illustration of the difficulties in ascertaining such a figure for any sloping or irregular block. The calculations illustrate that any "average" figure is, by hypothesis, an artificial one and should always be treated with a reserve which recognises that, whatever it use and advantages, it is
(Page 22)
- a construct rather than a reality. It is for this reason that I consider it preferable to treat the figure of 10.23 adopted by the Council, notwithstanding its shortcomings, as a better indication of the choice of the level of Lot 2 made by the decision-making authority. Either way, any decision authorising filling of this block to a level of 11.20 metres required advertence to and consideration of the Council Policy DBH 3 "Development Levels (Extent of Cut and Fill)".
Mr Adam's applications for development approval
41 The second respondent made several approaches to the City of Fremantle for approval of proposed development on Lot 2. I have already described his approach in February 2000 for an advisory opinion seeking approval for a ground level of 11.20 metres to be set for the site. However that was not a formal application under the Town Planning Scheme, nor was the provisional response from the first respondent a decision on an application.
42 By an application dated 11 January 2001, Mr Adam applied for planning and building approval for the continuation of an existing retaining wall and for the extension of that retaining wall on Lot 2 (AB 177 - 179). The proposed retaining wall was to run along the northern boundary of Lot 2 which faced the area of public open space to the north of the subdivision. The proposal was to extend for the full width of the lot, a retaining wall which already stood at the north-west corner. This had supported and enclosed the elevated ground level of the old Lot 219 which was at 11.2 ADL, as was the whole of the adjoining new Lot 3 to the east. However, that old retaining wall extended south only a little over 1 metre from the eastern boundary of Lot 2. The second respondent's proposal was to extend it for the full width of Lot 2 and, in the process, to include a set of seven new brick steps leading from the level of the public open space up to the front of Lot 2. The height of the proposed retaining wall and the top of the steps was to be at 11.20 ADL. The second respondent's diagram of this wall showed the level at the foot of the steps and at the north-west corner of Lot 2 as 9.60 ADL and the height of the wall, therefore, as 1.60 metres. This demonstrates that filling for Lot 2 behind the proposed wall to the 11.2 metre level would be significant, therefore bringing into application the Council Policy DBH 3 "Development Levels (Extent of Cut and Fill)".
43 This application had at first been considered by the DAU on 2 April 2001 which deferred determination of the application, pending submission of additional information showing the levels of a new residence to include
(Page 23)
- details of any alteration of the levels of the lot and without alteration to the retaining wall adjacent to the northern boundary (AB 126 and 184).
44 That application of 11 January 2001 was separately considered and approved by the DAC in October 2001. The minutes of the DAC recording the consideration of that application are DAC 121 (AB 355 - 358). The DAC approved the construction of the retaining wall, subject to conditions (not presently relevant) but excluded from approval the proposed staircase from Lot 2 to the area of public open space. The minutes do not show that any attention or consideration was given to the potential significance of Policy DBH 3 but this is probably because, by the date of this decision of the DAC, development approval had already been granted for the lot for a ground surface level of 11.20 metres throughout.
45 The second respondent's application for planning approval for a new dwelling on Lot 2 was submitted to the City of Fremantle on or about 10 April 2001 (AB 332). The application was advertised to nearby land owners and several objections were received which were, in turn, addressed by a response from the second respondent. The details of the application are summarised graphically on plans and elevations prepared by the second respondent which include relevant levels. One of these plans and elevations is found at AB 135 and 337 and a reproduction is set out in the Annexure to these reasons. The application was accompanied by notes from the second respondent (AB 333 - 336).
46 In addressing the height datum level the second respondent's note contained the following paragraph:
"8. The height datum level for Lot 2 is classified in Policy DGN 5 as partly 'N/A' (because that part of the Lot included part of the heritage building and what is now Lot 1) and partly RL 11.2 AHD (because part of Lot 1 was originally Lot 219). In order to resolve any uncertainty on the matter application was made to the Council in February 2000 for approval to height datum level of RL 11.2. In March 2000 the council gave approval in principle to this height datum level, 'subject to the submission of a development application for the approval of details'. This application meets that condition."
(Page 24)
47 As will be seen from the Annexure, the proposed development on Lot 2 comprises of three levels at the southern end and two levels at the northern end. The ADL of 11.2 is the level for the top of the retaining wall, and for the foot of the stairs at the northern end of the building leading up to the lower floor level. That lower floor level, and the concrete slab which comprises it, are to be elevated above the 11.2 site ADL and be constructed over a void above the filled ground surface at the northern end of the dwelling. At the southern end, where there are three levels, the lowest level comprises a garage and storeroom, the upper floor surface of which is at ADL 10.10 and thus below the site ADL of 11.2. The upper surface of the ground floor level, to which the steps from the northern end lead, is at level ADL 12.414 and slightly higher at ADL 12.76 at the southern end.
48 This design which has the main ground floor level at ADL 12.414 and elevated above the filled surface and approved site ADL of 11.2 by the combination of the void, the basement garage and storeroom is not readily reconcilable with the express terms of Policy DBH 3 "Development Levels (Extent of Cut and Fill)" because that policy proceeds on the assumption that any proposed building envelope will involve a ground floor concrete pad being constructed upon the approved ground surface and not elevated above it. It is for this reason that the first and second respondents have argued, in these proceedings, that the Council Policy DBH 3 does not apply at all to this application "because no fill is involved".
49 In my view, the submissions of the first and second respondents that DBH 3 "Development Levels (Extent of Cut and Fill) policy of the Council does not apply to this application should be rejected. Several reasons lead me to that conclusion. In the first place, the terms of DBH 3, and in particular cl 3, demonstrate that the purpose of the policy is to avoid raising the ground level in order to raise the overall development height on the clear assumption that natural ground level, increased or diminished where permissible, by the application of the policy, should be the reference point from which the height of a building is measured. In particular, the policy enunciates that raised floor levels are discouraged where they contribute to other issues such as increasing building bulk and overlooking problems - consequences which would result from permitting floor levels to be elevated as the second respondent's application for approval proposed. Secondly, the historical approach of the first respondent to applications dealing with Lot 2 has been to treat the natural ground level as being an ADL 10.23, and the policy DBH 3 as being applicable, but permitting the elevation of the ground level by filling to
(Page 25)
- ADL 11.20. Thirdly, the construction of the basement garage and storeroom at ADL 10.10 at the southern end of Lot 2 involves cutting below the accepted average natural ground level of 10.23 and itself alone, requires the application of the discretion to make such a cut contained in Policy DBH 3. Fourthly, approval of the application for a site datum level of ADL 11.20 metres, with a fill to that height, involves a significant elevation above the accepted natural surface whether that was to be regarded as ADL 10.23 or ADL 10.48 metres which, whatever view should be taken of the significance of the floor level at ADL 12.414, involved filling and the application of Policy DBH 3. Finally, the proposal for the ground floor level to be at ADL 12.414 (on the top of the slab) or approximately ADL 12.164 (on the underside of the slab) involves a ground floor level more than 1 metre above the accepted natural surface level of ADL 10.23.
50 The assumption that the slab for the ground floor would rest upon the approved ground surface level was also the assumption upon which the second respondent had submitted his request for an advisory ruling in February 2000, that the surface level of Lot 2 could be set at ADL 11.20 metres (see elevations at AB 379) and it was upon that basis that the provisional and advisory ruling was given by the DAC. The new proposal submitted in the January 2001 application for approval for the dwelling involved a ground floor elevated above the approved surface of the ground. This is quite different in concept and consequence from the proposal which had been subject to the provisional or advisory ruling. For this reason alone the provisional ruling of February 2000 cannot be regarded as determinative, or even as indicative, of this very different design.
51 Another feature of the second respondent's application for development approval for the construction of his dwelling, challenged by the applicants, is the provision for set back. Table Two of the Scheme, read in conjunction with the Residential Planning Codes, applicable at the relevant time requires a minimum front set back of 6.0 metres. The second respondent's proposal shows the front set back of the proposed dwelling as being 5.50 metres, taken from the front boundary of Lot 2. Clause 49 of the Scheme, dealing with the discretionary relaxation of the front set back limits, provides:
"49. No person shall carry out development inconsistent with Table Two unless the consent of the Council is obtained. Except as specifically provided by the Scheme, the
(Page 26)
- Council shall not relax the requirements of Table Two unless the relaxation is of a minor nature or unless:
- (a) the Council has previously adopted a planning policy statement relating to the area, use, class or building type in question, and
(b) the Council is satisfied that any relaxation of Table Two will better achieve the objects of that planning policy statement."
52 While the set back of the northern facing wall of the apartment proposed by the second respondent is 5.50 metres from the northern boundary, that did not include the width of the north-facing balcony at the first floor level. As the plans in Annexure "A" reveal, that balcony is slanted, being wider at the western end and narrower at the eastern end. At the western end the set back of the level of the balcony from the northern boundary is only 2.10 metres, whereas at the central point (another average) the set back is 2.70 metres.
53 The notes submitted by Mr Adam in support of his April 2001 application for development approval also deal with the set back position but they do not describe the position fully. In those notes the second respondent submitted to the Council that:
"9. Policy DGN 5 stipulates set backs from the boundary with the reserve for recreation to the north of 'a minimum of 2.0m for single storey and a minimum of 4.0m for two storey development'. The proposed building is set back from that boundary at the centre line of the site as follows:-
• to building face 6.9m
• to face of upper level - 4.1m
10. Attached is a diagram showing both the original set backs, as approved in 1998, and the set backs which have been subsequently approved by the Council in 2000 and 2001. This shows that the Council has approved reduced set backs for both building faces and upper level balconies on Lots 1, 3, 4, 5 and 6. In the case of Lot 3 the Council has approved a 1.0m reduction in set back to the building face and a 0.5m reduction in set back to the
(Page 27)
- balcony. The corresponding reductions for Lot 2 are 0.7m to the building face and an average of just less than 0.5m to the deck.
- 11. The deck of the upper level has been angled, and consequently its set back varies from 3.5m to more than 5.0m, with an average of around 4.2m. The purpose of angling the deck face is to optimise views from the adjoining Lot 3 towards the ocean. If necessary the angle could be reduced, to bring the minimum set back to 4.0m but this would be to the detriment of Lot 3."
54 Clearly, the figures quoted by Mr Adam do not correspond with those set out earlier and also taken from the Annexure. The earlier figures, however, are those which are taken from the second respondent's plan as submitted to the Council and were those accepted by Mr G H Broad, the Director Urban Management, in his affidavit sworn 28 April 2003 filed in these proceedings.
55 The reason for the difference is that, for the purposes of set back considerations, the second respondent appears to have been including a narrow strip at the northern end of Lot 2, and running in front of Lots 1, 2, 3 and 4 and being formerly Lot CP 12 and which is 1.40 metres wide. Lot CP 12 had earlier been subdivided and added to each of Lots 1, 2, 3 and 4 thereby, effectively, extending their northern boundary by its width of 1.4 metres. Taking that into account, no relaxation of the set back provisions for the construction of the northern wall of the proposed residence would be required and the set back for the balcony, at its widest point, would be 3.5 metres, and at its central (or average) point would be 4.10 metres.
56 The applicants also challenge the approval given insofar as it involved a relaxation of the open space requirement. They point out, correctly, that under cl 49 of the Scheme and Table Two, the applicable open space requirement is 50 per cent but that this application proposed an open space area of 40 square metres or only 26 per cent. Other lots in the same row had been approved with open space requirements of 32 per cent, but this was not adverted to in the report proposing the second respondent's application for approval. Further, according to the applicants, the 26 per cent open space requirement was approved without any consideration of the need for fulfilment of the conditions set out in cl 49 before this requirement could be relaxed.
(Page 28)
Consideration of the second respondent's application by Director, Urban Management
57 The second respondent's application for approval of development for the proposed dwelling on Lot 2 was approved by the Director of Urban Management, acting under his delegated authority, on 11 June 2001 (AB 350 - 351). This approval was subject to 13 specified conditions of which only three need be mentioned, namely:
"1. The height of the ridge of the dwelling should be reduced to be below that of the unit to Lot 3 adjacent (ie reduced by approx 800mm to less than RL 20.2) and the roof pitch shall match that of the approved unit to Lot 3 adjacent.
2. The north facing balcony shall conform to the previous approved outline in plan, as marked up in red, that no side screen walls, as per the previous approval, in order to maintain the view corridor of the previous approval of the site to the unit to Lot 3.
...
11. The stairs from Lot 2 to the POS adjacent to the northern boundary shall be deleted."
58 So long as the Director determined the application by reference to all relevant Council policies and other relevant considerations and without reference to irrelevant considerations he was empowered, as the Council's delegate, to determine the application, either with or without conditions, so long as any cut or fill involved did not exceed 1 metre in height or depth. However, if there were to be any cut or fill even if less than 1 metre he was obliged to give consideration to DBH 3 and, in particular, to cls 4.2 and 5.2 and to address and consider the criteria there identified for the exercise of his discretion. In the event that cut or fill exceeded 1 metre the application had to be referred to the DAC (cls 4.3 and 5.1 of DBH 3).
59 When it came to giving consideration to any relaxation sought by the applicant of the requirements of cl 49 of the Scheme and Table Two for set back provisions or open space ratios, the Director had full delegated power to make those decisions so long as he considered and applied the specified Scheme criteria.
(Page 29)
60 The application for development approval was considered in accordance with the DAU process and this involved the preparation of a detailed report which contained a recommendation for approval, subject to conditions. This report was considered by the Director and acted upon. The Director's decision was to adopt the recommendation in the report including all the conditions. That report (AB 343 - 349) can therefore be taken as indicating those considerations or criteria actually addressed by the Director when coming to this decision, although not, perhaps, all the considerations which he addressed. This is because Mr Broad has sworn in his affidavit that, despite not being mentioned in the report, he was aware of, and gave consideration to, the criteria well-known to him at the time for the exercise of his discretion for the relaxation of the minimum set back provisions and for the relaxation of the open space ratio requirement.
61 The report prepared for the Director included several references to the proposed height of the dwelling. Among these were:
"2. The proposed increase in height should not be supported as there has already been an incremental approval for increased floor heights on this lot. The retention of the development as a cohesive form that steps up the hill is assessed as an important part of the original, and amended, approval and should be retained.
3. The proposed increase in height significantly impacts on the ability of the original Laboratory building to remain the predominant building on the site, as required under policy considerations for density bonuses for such heritage sites.
...
The height of the ridge of the dwelling shall be reduced to be below that of the unit to Lot 3 adjacent (ie reduced by approx 800mm to less than RL 20.2) and the roof pitch shall match that of the approved unit to Lot 3 adjacent.
The applicant is requesting that Council approve a finished ground level on Lot 2 that is equal to that of Lot 3. This is appropriate and could be supported by Council. However, in granting this higher ground level it
(Page 30)
- would also be appropriate to restrict the height of the proposed dwelling on Lot 2."
- Among the factors addressed by this report were the identification and consideration of relevant Council policies applicable to the application. Three of these were identified and examined, but there was no identification or examination of DBH 3 "Development Levels (Extent of Cut and Fill)". As earlier mentioned, the Director has himself deposed that he did not consider or apply that policy because he was of the opinion that the application did not involve any fill.
62 Several features of the report to the Director and the ensuing approval are disturbing. In the first place there had been no earlier "incremental approval" for increased floor heights because the advisory resolution of the DAC in February 2000 was, by its terms provisional, and was not the exercise of any statutory decision-making power under the Scheme. That decision did not relieve the Director from himself examining, considering and determining all relevant criteria with regard to the particular application. The advisory decision of the DAC of February 2000 cannot in any way have bound either the DAC itself, or the Director, as to the manner in which an application for development approval, even one involving approval of a ground level of 11.20 metres, should be determined. That a statutory decision-making authority cannot bind itself or its successors in the future by any advisory indication of its approach to a future problem is well-established: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93 per Gummow J; Attorney General (NSW) v Quin (1990) 170 CLR 1 and Minister for Immigration and Ethnic Affairs v Polat (1995) 37 ALD 394. Furthermore, this application was of a design (with elevated ground floor levels) materially different from the design submitted to the DAC for its advisory ruling in February 2000.
63 Secondly, this report failed to identify Council Policy DBH 3 as potentially relevant, although on earlier occasions when consideration had been given to authorisation of particular levels on Lot 2, that Policy had been recognised as having application and had been specifically addressed. Thirdly, this application did involve a request for approval of the site datum level at ADL 11.20 metres which, unquestionably, involved a significant increase upon the natural ground level from ADL 10.23 or 10.48 (whichever it may be) and so necessitated advertence to, and consideration of the criteria contained in DBH 3.
64 Finally, in view of the prior treatment by the Council of the natural ground level of Lot 2 being at ADL 10.23 metres and this application
(Page 31)
- involving a ground floor slab with an upper surface level of ADL 12.414 metres I consider that, upon its true and purposive interpretation (Interpretation Act 1984, s 18) this was a case involving an elevation of the existing ground level with a view to raise floor levels of the building, to an extent exceeding 1.0 metres and thus outside the delegated authority of the Director.
65 On this basis alone, I conclude that the Director's decision to approve this application conditionally was made beyond his jurisdiction and that the applicants have made out a ground to quash the decision. However, even if a different view be taken of the necessity for this application to have been referred to the DAC for decision, it is still clear, beyond any doubt, that the criteria specified by cls 4.2 and 5.2 of DBH 3 were not addressed or considered by the Director and that, consequently, the decision approving the application was made without regard to an essential consideration and, therefore, is erroneous and should be quashed.
66 An error by a decision maker to attempt to exercise his jurisdiction where a question at issue is beyond his delegated authority is a jurisdictional error for which certiorari can certainly issue. A decision by the Director within the scope of his jurisdiction, but which the record reveals to have been made without regard to a relevant consideration, is a decision affected by an error of law appearing on the face of the record which, while not jurisdictional, will nevertheless result in the issue of certiorari to quash the decision: Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 per Hayne J at 463 - 473.
67 This conclusion renders it unnecessary to determine whether or not the decision of the Director, insofar as it also relaxed the set back limits and the open space ratio, revealed an error which would justify the issue of the writ sought. There appears to be no reason to doubt that the Director, when making the decision, was well aware of and gave due consideration to the criteria affecting the exercise of the discretionary power to relax set back requirements and open space requirements. Nor, having regard to the dimensions involved and the manner in which relaxation of open space and set back requirements had been determined for other lots within the same subdivision involving similar, but not identical considerations, there is no reason to conclude that a decision on those matters was so unreasonable or disproportionate as to indicate error: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Parramatta City Council v Pestell (1972) 128 CLR 305. This test must not be employed in a manner which would result in a decision under challenge being reviewed, in effect, upon its merits -
(Page 32)
- compare Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 per Lord Diplock at 410 and Attorney General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 36. Had it been necessary for me to address this issue, I would not have concluded that the applicants had established that the decision of the Director with respect to the relaxation of the set back requirements or the approval of the reduced open space ratio was so unreasonable or disproportionate as to justify judicial review, nor that the decision necessarily connoted failure to advert to relevant considerations or criteria. As it is, however, the decision of the Director is erroneous on two independent grounds and no part of it can stand.
The issue of the Building Licence
68 On or about 6 May 2002 the City of Fremantle issued a Building Licence for the proposed residence on Lot 2, the subject of the planning approval granted on 11 June 2001. That was based on a grant of planning approval which I have concluded should be quashed for the reasons stated. No party has sought to submit that, if the decision granting development approval of 11 June 2001 were to be quashed, the Building Licence could survive the challenge made to the first respondent's decision to grant it for any further or independent reason. It follows, therefore, that the first respondent's decision to issue that Building Licence should also be quashed.
The decision of the DAC of 8 October 2001 - approval of retaining wall
69 This decision, resulting from the application of the second respondent of 11 January 2001 has already been described. As set out in [44] above this decision was made without regard to or consideration of Council's Policy DBH 3 "Development Levels (Extent of Cut and Fill)" and on the basis that the height of the retaining wall was consistent with the finished ground level approved for the subject lot (AB 357). While it was a decision of the DAC, which therefore had authority to approve an application involving fill of more than one metre, it was still necessary for attention to be given to the criteria identified in cl 5 of that Policy. That was not done on this occasion by the DAC which, instead, treated the approval of the 11.02 metre ground levels as having been determined by the earlier "approval" of 11 June 2001. That was a failure by the DAC to have regard to relevant considerations, namely the criteria identified by Policy DBH 3 and, in addition, it constituted an erroneous and unjustifiable reliance upon the validity of the earlier decision of 11 June 2001 which, as can now be seen, was made by the delegate without
(Page 33)
- jurisdiction. It follows that this approval of the DAC of 8 October 2001 should also be quashed.
Discretionary considerations
70 The respondents submit that as certiorari is a discretionary remedy and can be withheld if delays occur by any applicant in seeking this relief from the court, the delay which has occurred in this case and its consequences are so great that the remedy should be refused. In the first place, the respondents point to the six month time limit for the institution of applications for the issue of writs of certiorari under Rules of the Supreme Court ("RSC") O 56 r 11 and point out that this application was commenced on 8 January 2003. However, that time limit does not apply to proceedings involving the acts and decisions of bodies which do not satisfy the description of "an inferior court or tribunal, or ... a magistrate or justices": Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 at [74] and [91] and Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253.
71 Nevertheless, the lapse of time which has occurred in this case, if not satisfactorily explained, could result in the discretionary refusal of the remedy. In this regard the applicants offer an explanation for the delay which has occurred which I consider should be accepted.
72 The second respondent had sought a reconsideration by the Council of the imposition of the conditions on the development approval granted on 11 June 2001 and that application was not determined until 8 July 2002. During this time no action was being taken by the second respondent to proceed with the proposed development. In early June 2002 the applicants notified the City of Fremantle of their intention to commence legal proceedings, seeking orders that the decision of 11 June 2001 should be declared void and of no effect (AB 298). Details of the grounds of the proposed challenge were set out in a letter from the applicants to the solicitors for the first respondent dated 20 June 2002 (AB 301 - 310). The first respondent requested the applicants to defer the institution of any legal action until after 25 June 2002 so that it could obtain further legal advice. The applicants' solicitor then wrote to the first respondent on 21 August 2002 advising of their intention to institute proceedings for judicial review (AB 282).
73 It was not until January 2003 that any works on Lot 2 were commenced. These were noticed by one of the applicants, Mr T A Lemmon, and were described as only preliminary works (AB 64). Throughout early 2002 continuing attention to the application and the
(Page 34)
- review by the second respondent was being given by officers of the first respondent (see affidavit of Mr T A Lemmon, 4 March 2003 at AB 72). The second respondent, himself, describes the progress of his request for reconsideration of the conditions imposed on the approval of 11 June 2001 and describes how the course of these negotiations in effect continued until the grant of the Building Licence on 6 May 2002.
74 The second respondent only undertook limited construction works during the period 17 January to 18 March 2003. His evidence is that none of the work undertaken (except, possibly, certain fish ponds) would be redundant in the event that a different dwelling were required to replace the existing approval (AB 371).
75 In August 2003 the second respondent made a fresh application to the City of Fremantle for approval of what was essentially the same development and the City decided to proceed and consider that application. It was duly considered by the DAC on 1 December 2003, resulting in it being referred to a meeting of Council on 15 December 2003 when it was then refused (see affidavit of A B Jackson, 22 December 2003). Notwithstanding that refusal, the second respondent requested the fresh application to be reconsidered pursuant to cl 88 of the Scheme. That request was referred to the DAC which, on 8 March 2004, recommended to Council that the reconsideration request be granted and that the fresh application be approved subject to various conditions. On 15 March 2004 the Council of the first respondent, accepted the recommendation of the DAC and approved the fresh application but on different conditions to which the second defendant later objected.
76 In practical terms, therefore, the question of whether development as sought by the second respondent could proceed on Lot 2, either under the conditional approval granted by the first respondent on 11 June 2001, or pursuant to some fresh approval being sought by the second respondent on a new application being considered between August 2003 and March 2004 remained under consideration.
77 Since then, the second respondent has appealed successfully to the Town Planning Appeals Tribunal ("TPAT") against the imposition of the conditions on the approval for the construction of the dwelling on Lot 2 set by the Council by its decision of 15 March 2004. The decision of the TPAT of 27 July 2004 (Adam v City of Fremantle [2004] WATPAT 131) allowed that appeal but directed that the first respondent may set further, but different, conditions on approval and remitted the matter to the first respondent for further consideration. There seems to be the prospect,
(Page 35)
- therefore, that the second respondent might eventually succeed in obtaining conditions acceptable to him upon the development of approval dated 15 March 2004 granted on his fresh application made in August 2003 after these present proceedings had been instituted.
78 Whatever else this course of proceedings may show, it certainly demonstrates that the question of the ability of the second respondent to proceed with the development of Lot 2 as desired remained in controversy at least until March 2004 and even after then continued to be subject to an appeal to the TPAT against the conditions then imposed. It cannot be said in these circumstances that the delay in instituting these present proceedings by the applicants, which in any event I consider has been satisfactorily explained, has caused, or would be likely to cause, any material prejudice to the second respondent or, for that matter, to the first respondent.
79 The fact that the fresh application brought by the second respondent to obtain approval for his proposed development on Lot 2 appears to have been, to a large extent, successful and, therefore, from the second respondent's viewpoint, may render the conditional approval granted by the first respondent on 11 June 2001 of no more than historical significance does not dispense with the right of the applicants to maintain their present challenge nor provide any discretionary reason to refuse relief. The approvals granted by the first respondent, and challenged by the applicants in these proceedings, namely the planning approval to proceed with the construction of the dwelling dated 11 June 2001; the subsequent planning approval for the construction of the retaining wall dated 8 October 2001 and the grant of the Building Licence of 6 May 2002 will remain valid and effective unless quashed. They would permit the second respondent to carry out the work authorised in reliance upon them, should he wish to do so, or should, for any reason, it be advantageous to him to do so: Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431. Because those approvals retain that status I consider that the applicants are entitled, in the light of the conclusions which I have reached, to have them quashed.
80 In the result, therefore, the order nisi for a writ of certiorari as amended by Barker J on 14 August 2003 should be made absolute and the decisions of the first respondent granting:
(Page 36)
- • planning approval to the second respondent dated 11 June 2001;
• planning approval granted to the second respondent dated 8 October 2001;
• a Building Licence to the second respondent dated 6 May 2002
- should each be set aside and quashed.
(Page 37)
22
0