SAUNDERS and CITY OF NEDLANDS
[2005] WASAT 125
•3 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SAUNDERS and CITY OF NEDLANDS [2005] WASAT 125
MEMBER: MS B MOHARICH (MEMBER)
HEARD: 22 JANUARY 2004
3 MARCH 2005
DELIVERED : 3 JUNE 2005
FILE NO/S: RD 148 of 2003
BETWEEN: JC SAUNDERS
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Application for retrospective planning approval - Whether approval required - Meaning of natural ground level
Legislation:
City of Nedlands Town Planning Scheme No 2
Planning Appeals Amendment Act 2003 (WA), s 17
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Appeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 29, s 47, s 167
Town of Vincent Town Planning Scheme No 2
Town Planning and Development Act 1928 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr B Saunders
Respondent: Mr C Slarke
Solicitors:
Applicant: N/A
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS B MOHARICH (MEMBER):
REASONS FOR DECISION
Introductions
This matter has a long history. It was commenced as an appeal to the Minister for Planning on 29 July 2002 under the Town Planning and Development Act 1928 (WA), prior to the abolition of this appeal right by the Planning Appeals Amendment Act 2003 (WA), which came into operation on 18 April 2003. By section 17 of this Amendment Act, the appeal was transferred to the Town Planning Appeal Tribunal. The Town Planning Appeal Tribunal was abolished by the commencement State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005. From this date on, the jurisdiction of the abolished Town Planning Appeal Tribunal was transferred to the State Administrative Tribunal, pursuant to s 167 of the State Administrative Tribunal 2004 Act (WA) ("SAT Act"), s 29.
The subject of the appeal is the refusal by the respondent of an application for retrospective planning approval for a boundary fence on the boundary between 258 (Lot 24) Marine Parade ("the appeal land"), owned by the applicant, and 13 Walba Way, owned by Mr Dodd.
In order to determine the issues in this appeal, it is important to understand the topographical layout of the area. The appeal land and 13 Walba Way share a rear boundary, where there exists a limestone wall retaining 13 Walba Way (which is the higher of the two properties). The limestone wall varies in height between 0.9 metres at the southern end, to 2.4 metres at the northern end of the back boundary. On top of the retaining wall is an existing weld mesh fence. The orientation of 13 Walba Way is to the rear of the lot, to address the views afforded from that position to the Indian Ocean. The applicant requires a visually impermeable fence to provide a degree of privacy to his lower lot. Mr Dodd is unhappy with the aesthetic appearance of the fence constructed by the applicant, on the basis that this is his primary outlook.
The fence is a 1.8 metres timberlap fence, constructed by the applicant on top of the existing limestone retaining wall and attached by galvanised bolts to the wall, and to the existing weld mesh fence. Support is also gained by a number of home made timber buttresses that are located in the applicant's property.
The matter first came on for hearing on 22 January 2004. It became clear during Mr Saunders' cross ‑ examination of Mr Dodd, who appeared as a witness for the respondent, that the matter would more properly be dealt with by way of a mediated outcome between the two landowners, to ensure that the requirements of each party were met. An agreement was struck between the parties to allow the timberlap fence to be removed and a new limestone wall to be constructed in conjunction with the building of a new house on Mr Dodd's property. While agreement was reached, the appeal was never withdrawn, and it would appear from the documents filed with the Tribunal and the relationship between Mr Saunders (acting on behalf of his brother, the applicant) and the respondent broke down. As Mr Saunders refused to withdraw the appeal, the matter was brought back on for hearing.
Futility
By the date of the hearing on 3 March 2005, the timberlap fence had been removed, to allow the construction of the limestone wall. Mr Slarke, for the respondent, requested the Tribunal to effectively strike out, or dismiss the appeal because the subject matter of the appeal had been removed.
Section 47(2) of the SAT Act allows the Tribunal to dismiss or strike out a proceeding for the reasons set out in s 47(1). These include in s 47(1)(a) a proceeding which "is frivolous, vexatious or lacking in substance."
What the applicant sought through the appeal process was the retrospective approval of something which would otherwise be in contravention of the respondent's City of Nedlands Town Planning Scheme No 2 ("TPS2"). This is because, as discussed below, the construction of a fence of this height requires planning approval. Under both TPS2, and under the Town Planning and Development Act 1928, the contravention of a town planning scheme is an offence. Theoretically speaking, the applicant could be prosecuted for this contravention unless retrospective approval issued, however remote that possibility is, now that the fence in question has been removed.
Whether approval is required
The applicant contended that planning approval was not required for a fence of this nature. He relies upon cl 5.6.4 of TPS2, which is in the following terms:
"No fence or screen wall shall be erected within 0.9 metres of a dividing boundary to a height greater than 1.8 metres above natural ground level without the approval of the Council. The Council may refuse to grant approval of a screen wall or fence higher than 1.8 metres above natural ground level if in the opinion of the Council such additional height would adversely affect the amenity of the occupants of the adjoining lot."
Mr B Saunders' view is that the height of the fence should be taken from the top of the retaining wall, and on that basis, there is no requirement for planning approval.
The Tribunal is aided in this regard by the definition of "natural ground level" in cl 1.8 of TPS2, which provides:
"means those levels depicted by contour lines at 1 metre intervals on the Lands and Surveys Department public plans Series B.G. 2000 34."
At the hearing of the appeal, an order was made for the respondent to provide the Tribunal with a copy of this plan. The respondent provided the plan on 25 May 2005. It is clear from the plan that the natural ground level closest to the boundary is the 19 metres AHD contour, which falls on the applicant's land, making the fence (as attached to the top of the retaining wall) higher than 1.8 metres. Approval is therefore required for a fence of this height.
Assessment of merits
Clause 6.4.2 sets out the considerations that the Council, and therefore the Tribunal must take into account in determining an application for planning approval. These include, relevantly:
"(c)the form, layout, appearance and material of any building is in keeping with the existing character of the locality."
In addition, cl 5.5 sets out specific provisions in relation to the preservation of amenity. Clause 5.5.1 states:
" … the Council may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of the external appearance of the development …"
Mr Arndt, the Director of Environmental Services, and a qualified town planner, gave evidence on behalf of the respondent. It was his view that while the timberlap fence was not out of character for a rear boundary fence in the area, the fact that the fence would be a focal point for 13 Walba Way meant that weight was given to Mr Dodd's objections to it. Mr Dodd, in evidence, was of the view that the fence was "unsuitable to the Swanbourne beachfront locality." In addition, Mr Dodd was concerned about the safety of the fence, particularly due to the strong westerly winds experienced in this locality.
Mr Saunders provided photographs of other timberlap fences that had been constructed in the area to explain why he felt that the fence was in character with the area.
The Tribunal agrees with the applicant that there is no doubt that a timberlap fence is in keeping with the locality. However, in light of the location of the fence on the boundary of these two lots, and particularly because of the orientation of 13 Walba Way, it is my view that the timberlap fence adversely affects the amenity of 13 Walba Way, and therefore, in accordance with cl 5.5.1, the appeal should be dismissed.
It needs to be said that it is unfortunate indeed that this matter was not able to be resolved by a mediated solution between the applicant, respondent and Mr Dodd. The subject of the appeal has originated from a neighbourhood dispute, and it is clear that the powers exercisable by the Tribunal in s 29 of the SAT Act cannot provide any meaningful finalisation of the matter in a practical sense. As much as I am able, I encourage the applicant and Mr Dodd to reopen their discussion as to what is a mutually acceptable fence, and then apply to the respondent for the requisite planning approval.
Orders
For the foregoing reasons, the Tribunal makes the following orders:
1. The appeal is dismissed.
I certify that this and the preceding 6 pages comprise the reasons for decision of the State Administrative Tribunal.
___________________________
Ms B Moharich, Member
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