SALIBA and TOWN OF CAMBRIDGE
[2005] WASAT 84
•27 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND
DEVELOPMENT ACT 1928
CITATION: SALIBA and TOWN OF CAMBRIDGE [2005] WASAT 84
MEMBER: MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 22 MARCH 2005
DELIVERED : 27 APRIL 2005
FILE NO/S: RD 256 of 2004
BETWEEN: CARMEL SALIBA
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Section 10 notice - Building in contravention of planning approval and town planning scheme requirements
Legislation:
Residential Codes 1991
Residential Design Codes 2002 (WA)
Town Planning and Development Act 1928 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: Mr P Gillett
Solicitors:
Applicant:
Respondent: McLeod & Co
Case(s) referred to in decision(s):
Harding & Read v Shire of Chittering [2003] WATPAT 147
Case(s) also cited:
Nil
MR J JORDAN (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Introduction
This is an application for review of a Direction issued by the Town of Cambridge ("Respondent") under s 10(3) of the Town Planning and Development Act 1928 ("Act"). The Direction is concerned with work carried out in contravention of an approval issued for development at Lot 901 (number 67) Ruislip Street, Wembley.
Lot 901 is 270 square metres in area. A two-storey house on the lot faces north to Ruislip Street. At the rear between the house and the southern boundary there is at the western end a paved courtyard and at the eastern end, facing a right of way, an area referred to by the parties as the "garage" which is shown on the plans as comprising a carport and parking bay. The garage is enclosed to the south by a parapet wall on the lot boundary, to the west by a plate height wall with a door in it, to the north by the back wall of the house and at the eastern side by a double-width tilt‑a‑door. Photographs provided by the respondent show that the area above the garage within the walls has been completely roofed with tiles.
Background
On 24 November 1999, the respondent granted development approval under Town of Cambridge Town Planning Scheme No.1 ("TPS1") for a two‑storey single dwelling, as shown on an amended plan dated 10 November 1999 ("1999 Approval"). The 1999 Approval plan shows an "unroofed car bay" adjacent to the house and next to it a "carport". The "extent of roof" marked on the plan covers the carport.
The 1999 Approval was subject to the condition:
"The car bay adjoining the single garage remains unroofed."
On 17 May 2000, the respondent issued Building Licence 173 BA‑2000 ("Building Licence"). The Building Licence plan shows an area marked "garage" and an area marked "no roof cover" over the western half of that garage. On 5 January 2001 the respondent approved an amendment to the Building Licence that included on the approved plan the wall at the western side of the area set aside for parking with a doorway of about 820 millimetres width to the courtyard.
On 27 September 2001 the respondent refused an application for additional roof covering of the garage area ("2001 Refusal"). The 2001 Refusal included the notation "the area of roofing already approved for the garage may be installed on the northern side of the garage, closest to the dwelling."
These variations in the decisions of the respondent as to location of covered parking area were summarised in the s 10(3) notice as:
(a)Pursuant to the 1999 Approval, the roofing of the southern half of the "garage"; or
(b)Pursuant to the Building Licence, the roofing of the eastern half of the "garage"; or
(c)Pursuant to the 2001 Refusal, the roofing of the northern half of the "garage".
The applicant has had erected a tiled roof over the entire garage area.
The Notice
On 1 September 2004 the respondent served on the applicant a notice under s 10(3) of the Act identifying that the entire roof of the garage had been tiled in contravention of TPS1 and directing that the applicant:
"Remove tiles from the roof of the area described as "garage" in Annexure B so that:
(a)no more than half of the area of the "garage" as shown in Annexure B is covered with a roof; and
(b)the roof covers either the southern, eastern or northern half of the area as shown as "garage" in Annexure B."
Comment
There was no dispute between the parties that the total area of the garage was tiled in contravention of the condition of approval issued for the development.
Mr Saliba's submission in support of allowing the additional tiles to remain was mainly concerned with the aesthetics of the development if half of the garage were to be unroofed. He also emphasised security and the need for covered all weather access and argued that the extent of roof applied for in 2001 should be approved.
Counsel for the respondent pointed out, correctly, that an application in relation to a s 10 direction is not to operate as a de facto appeal from a decision on an application for development approval: Harding & Read v Shire of Chittering [2003] WATPAT 147 at page 12.
Mr Saliba referred to three (3) first floor level balconies which were approved as a variation to the building design as part of the Building Licence application. These are about one metre wide and of different lengths. He submitted that when considering whether the development is consistent with the requirements of TPS1, the area of the balconies should be considered to offset the area covered by the additional garage roof.
Mr Bracone, Manager, Planning Services of the Town of Cambridge, appeared as a witness for the respondent. Mr Bracone said Statement of Planning Policy 3.1 "Residential Design Codes 2002" ("RD Codes") were included within TPS1 by reference. The RD Codes have replaced the Residential Codes 1991 which were incorporated within TPS1 at the time of the 1999 Approval. Under the 1991 Codes balconies, being part of the building, were not included in calculation of open space, which was defined as:
"… that area of a lot which is not occupied by any building and may include the open surfaces of accessible and usable roof spaces, open car parking, but not covered walkways, parking areas with non-accessible roofs, areas for rubbish disposal, stores, outbuildings or plant rooms."
Mr Bracone further submitted that under the RD Codes now in TPS1, the areas of the balconies could not be counted as open space, the relevant parts of the definition of open space reading:
"Generally that area of a lot which is not occupied by any building and includes:
•Open areas of accessible and usable flat roofs and outdoor living areas above natural ground level
But excludes:
•Non‑accessible roofs, verandas and balconies over 0.5 metres above natural ground level."
The balconies on the Building Licence plan are over 0.5metres above natural ground level. Mr Bracone said that in any event the area of the balconies was less than covered by the additional roofing of the garage.
A further point made by Mr Bracone was that the applicant already has a concession on open space below the 50 per cent prescribed in both the 1991 Codes and the RD Codes. Attached to his witness statement was a copy of the minutes of the Council meeting of 23 November 1999 approving the house. These stated that the site cover for the residence and roofed area of the garage left 47.4 per cent of the site as open space. It was Mr Bracone's submission that the applicant had already been granted a concession and the area of the additional tiles would further reduce the open space available on this small lot.
The respondent emphasised that, while it was not of concern which section of the garage was roofed, at no time was roof cover approved for more than half of the area of the garage.
The applicant is seeking endorsement for work carried out that further increases the concession on the required area of open space granted in the 1999 Approval. From the evidence presented, such a reduction cannot be supported as it is in contravention of the condition imposed on the development approval that has been issued and would also be in contravention of the open space requirements of the Residential Design Codes incorporated into TPS1.
From my examination of this matter I have found there are no grounds for setting aside the direction in the s 10(3) notice that has been issued by the respondent.
Orders
The orders of the Tribunal are:
The application to set aside the direction in the s 10(3) notice is dismissed.
I certify that this and the preceding five pages comprise the reasons for decision of the Tribunal.
_____________________
Mr J Jordan
Senior Sessional Member
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