SAVILL and CITY OF MELVILLE

[2010] WASAT 67

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   SAVILL and CITY OF MELVILLE [2010] WASAT 67

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   6 MAY 2010

DELIVERED          :   13 MAY 2010

FILE NO/S:   DR 35 of 2010

BETWEEN:   ROGER SAVILL

KIM SAVILL
Applicants

AND

CITY OF MELVILLE
Respondent

Catchwords:

Town planning ­ Development application ­ Basketball hoop on road verge 2 metres from applicants' property and 3 metres from edge of roadway ­ Planning principle ­ Private use of public land ­ Streetscape ­ Consistency with Verge Policy ­ Consistency with purpose of road reserve ­ Public policy ­ Encouraging children to play sport and socialise in safe environment ­ Appropriation of public land for essentially private recreational structure ­ Adverse planning precedent

Legislation:

City of Melville Community Planning Scheme No 5, cl 7.8(b)
Land Administration Act 1997 (WA), s 55(2)
Local Government Act 1995 (WA), s 3.25
Planning and Development Act 2005 (WA), s 252(1)

Result:

Development application refused

Category:    A

Representation:

Counsel:

Applicants:     Mr SJ Blyth

Respondent:     Mr CA Slarke

Solicitors:

Applicants:     Lewis Blyth & Hooper

Respondent:     McLeods

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

Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234

Cantello and City of Stirling [2006] WASAT 339

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr and Mrs Savill erected a 4 metre high basketball hoop on the road verge adjacent to the driveway serving their property, approximately 2 metres from their property boundary and approximately 3 metres from the edge of the roadway.  The structure is fixed to the ground by a concrete footing with dimensions of 650 millimetres x 800 millimetres x 400 millimetres.  Mr and Mrs Savill subsequently sought retrospective development approval from the City of Melville to authorise the structure to remain until their 12­year­old son reaches the age of 18.  Mr and Mrs Savill argued that 'it is in the interests of the community as a whole that children should exercise as often as possible and that public land, including street verges, should be utilised to promote that general health objective'.

2. The Tribunal determined that the structure is contrary to the orderly and proper planning of land in the area and therefore warrants refusal in the exercise of planning discretion.  The structure is not contemplated by the specific and detailed Council policy regulating private development of road verges, which is an indication that it is an inappropriate development.  Furthermore, the development involves the appropriation or monopolisation of public land for essentially private recreational purposes by the erection of a substantial physical structure.  Orderly and proper planning, as assessed in the context of the current planning framework, does not generally permit a landowner to, in effect, extend their private domain into the public domain.  There is no specific circumstance in this case that would justify a departure from this established planning principle.

3. If, ultimately, the community considers that the health-related issues raised by Mr and Mrs Savill warrant a change in the planning framework to contemplate private recreational structures on public land, then the planning framework, and specifically the Verge Policy, requires amendment.  However, that is beyond the scope of this proceeding and is a matter for the Council to consider as the strategic planning authority for its district.

4. The Tribunal also found that approval of the development in this case would also set an adverse planning precedent that is likely to lead to further applications and a significant cumulative impact of similar structures on the public domain in general and road reserves in particular.  Further applications and approvals are also likely to have a detrimental cumulative impact on streetscape.  The finding in relation to precedent further supported refusal of the application.

Introduction

1. Mr and Mrs Savill own and live with their two sons, aged 17 and 12, at No 7 Shea Grove, Leeming (Savill property).  The Savill property is within an area classified by the City of Melville Community Planning Scheme No 5 (CPS 5) as a Living Area precinct, namely, the Leeming (L1) Precinct.  Shea Grove is described by Mr Ken Adam, a town planner who gave evidence on behalf of Mr and Mrs Savill, as 'an attractive, suburban cul de sac, maintained in what I would describe as a very good condition'.  The street verges of Shea Grove are, to quote Mr Adam, 'for the most part, lawned and punctuated only by driveways, some street trees and light poles'.  Approximately 20 houses front Shea Grove.  The Savill property is on the southern side of the street towards its eastern end.

2. Mr Savill previously played competitive and social basketball and has a keen interest in the sport.  He encouraged his sons to play sport, particularly basketball, and his 12­year­old son, Connor, is a keen basketball player.  As a result of Connor's interest in basketball, in about November 2007, Mr and Mrs Savill arranged for the erection of a basketball pole, backboard and hoop (the structure) adjacent to the driveway serving their property on the Shea Grove road verge, approximately 2 metres north of their property boundary and approximately 3 metres south of the edge of the roadway.  The structure is fixed to the ground by a concrete footing with dimensions of 650 millimetres x 800 millimetres x 400 millimetres.  The pole, which is black in colour, has a depth and width of approximately 75 millimetres.  The backboard, which is translucent with black trimming, has dimensions of 1.5 metres x 1.05 metres.  The hoop is approximately 3 metres above the ground.  The total height of the structure is approximately 4 metres.  A photograph showing the structure and the front of the Savill property is attached to these reasons.

3. Although Mr and Mrs Savill erected the structure on public land, they did not seek approval from the City of Melville (City or Council) which is the authority with the care, control and management of Shea Grove under s 55(2) of the Land Administration Act 1997 (WA) and also the planning authority for the area under CPS 5. It is common ground that development approval is required for the erection of the structure on the road verge under CPS 5. However, the City has not received any complaints in relation to the erection or use of the structure.

4. On 6 April 2009, the City received a complaint about a basketball structure on the road verge adjacent to another property in Shea Grove.  A consequent inspection by Council officers revealed the existence of two other basketball structures on the road verge of Shea Grove, including the structure erected by Mr and Mrs Savill.  The Council issued notices to the three adjacent landowners under s 3.25 of the Local Government Act 1995 (WA) requiring the removal of the structures.  While the other two landowners complied, Mr and Mrs Saville objected to the notice.  When their objection was dismissed by the Council on 18 August 2009, Mr and Mrs Savill applied to the City for retrospective development approval under CPS 5 to authorise the structure to remain until Connor reaches the age of 18, now in six years' time.  Mr and Mrs Savill proposed that they obtain a public liability insurance policy in relation to the structure naming the City as an interested party in order to protect the Council from civil liability.  Mr and Mrs Savill also proposed to provide padding to the structure and motion­sensitive lighting, if considered necessary.  The City signed the development application form as the authority with the care, control and management of the road reserve (see Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234 at [47] ­ [56]) in order to enable the application to be assessed on its planning merits.

5. On 6 January 2010, the City refused the development application for the following three reasons:

   1.The proposal is constructed on public land and is considered to represent a public liability risk to the City of Melville.

   2.The proposal is considered to be an unreasonable obstruction to the public thoroughfare and therefore contrary to the use and intended purpose of the verge for the provision of public infrastructure and orderly and proper planning of the locality.

   3.The proposal is considered to have an undesirable impact on the streetscape and is accordingly contrary to the existing and future amenity of the locality.

6. On 3 February 2010, Mr and Mrs Savill sought review by the Tribunal of the City's decision under s 252(1) of the Planning and Development Act 2005 (WA).

Issues for determination

1. The City identified the following five issues for determination:

   1)Whether the structure has an unacceptable impact on streetscape.

   2)Whether the structure is consistent with relevant planning policies.

   3)Whether the erection and use of the structure is consistent with the purpose of the road reserve.

   4)Whether approval of the structure would be consistent with public policy.

   5)Whether approval of the structure would set an undesirable precedent.

2. The Tribunal will address each of these issues in turn.  Mr and Mrs Savill nominated other issues, but these are, in effect, responsive arguments to the Council's issues.  Mr and Mrs Savill's principal arguments will be addressed in the assessment of the Council's nominated issues.

Streetscape

1. Mr Adam gave evidence that 'the structure itself has no negative effect on the streetscape of Shea Grove, and may in fact, by some people, be regarded as a positive addition to the streetscape'.  Mr Adam explained that the visual impact of the structure is minimised by the black colour of the pole and the translucent backboard.

2. Mr Hide Shigeyoshi, a town planner and the City's Acting Planning Services Coordinator, agreed with Mr Adam that the structure 'does not pose a substantial visual detriment to the streetscape'.

3. Mr and Mrs Savill called the residents of three nearby properties in Shea Grove to give evidence.  Ms Radosevich considered that the structure 'blends in beautifully' with Mr and Mrs Savill's house and does not detrimentally affect the street.  Mr and Mrs Taylor said that the structure is 'not obtrusive'.  Mr Watt considered that the structure 'fits in with the streetscape of Shea Grove and of 7 Shea Grove in particular'.  Mr and Mrs Savill noted that the materials of the structure were selected in order to complement their house and, in particular, that the translucent backboard was chosen to match the translucent panels of their garage.

4. Although the structure appears somewhat discordant on a road verge, which otherwise only comprises lawn, some trees, driveways and power poles, in light of the joint town planning evidence, the Tribunal finds that the structure does not, in itself, have an unacceptable impact on streetscape.

Consistency with relevant policies

1. The 'policy statement' in the Council's Policy No: 21­001 ­ Road Verges (Verge Policy) is:

   To provide guidelines for the development and maintenance of street verges and to encourage the use of water wise landscaping in the verge.

2. Significantly, as Mr Shigeyoshi said, the policy 'only contemplates limited works being done in the road verge, the emphasis being on beautification of the verge'.  As he said, 'constructing a basketball facility is not something the policy contemplates as a possibility'.  Furthermore, the Verge Policy is consistent with the City of Melville Local Law Relating to Street Lawns and Gardens (local law).  The local law also only contemplates the carrying out of landscaping on the road verge.  The local law specifically states that it does not authorise the placement of 'any fence, enclosure or other obstruction on, or about, a lawn or garden in a street'.   However, Mr Shigeyoshi did not regard the absence of reference to basketball hoops in the policy or the local law as a 'critical factor' in relation to the assessment of the development application

3. While Mr Adam conceded that the Verge Policy does not contemplate the erection of basketball hoops on road verges, he said that it also does not contemplate other structures which are common features of road reserves, such as road signs and light poles.  Mr Stephen Blyth, counsel for Mr and Mrs Savill, submitted that the Verge Policy 'is neither prescriptive nor proscriptive' about the development of basketball hoops on verges.   He submitted that the Verge Policy does not provide 'a codification or an exhaustive statement of the uses that may be made of the street verge'.

4. However, it is understandable that the Verge Policy does not refer to structures such as street signs or light poles, because it is not directed to the provision of facilities by public authorities, but rather, it is directed to private development on the public verge.  While the Tribunal accepts Mr Blyth's submission that the fact that the Verge Policy does not contemplate the erection of basketball hoops on verges is not determinative of the application, it is indicative that the proposed development is not appropriate for two reasons.  First, the Verge Policy is a specific and detailed policy regulating private development on public verges.  Secondly, as the Tribunal recognised in Cantello and City of Stirling [2006] WASAT 339 (Cantello), at [23], '[i]t is an established planning principle that development applied for be accommodated within the boundaries of the lot or lots from which the development is to operate'. The development application considered in Cantello involved the parking of a commercial vehicle on private land. However, the evidence showed that the vehicle would extend beyond the boundary of the land by between 150 millimetres and 500 millimetres. The Tribunal determined, at [25], as follows:

   The Tribunal is of the view that, in the interests of orderly and proper planning, it cannot support a development application that, to be fulfilled, would require part of the public road reserve, however limited in area, to be effectively appropriated for the exclusive use of the resident of an adjacent private property.  For this reason, the Tribunal will dismiss this application.

5. In consequence of the specific and detailed nature of the Verge Policy in relation to the private development of public verges and the established planning principle referred to in Cantello, the fact that the Verge Policy does not contemplate the erection of basketball hoops by landowners on the public verge in front of their properties is an indication that the development in question in this matter is inappropriate as a matter of orderly and proper planning.

Consistency with the purpose of the road reserve

1. Mr Shigeyoshi considered that 'the appropriation of the public road verge for active private recreation purposes … is not consistent with the purpose and function of the road verge'.  He explained that the purpose and function of the road reserve is to provide an accessway, a location for services and associated infrastructure and a pleasant streetscape and transition area through landscaping between the roadway and residential lots.

2. In contrast, Mr Adam considered that the use of the verge for a basketball hoop is 'a perfectly proper use of the street verge/public thoroughfare'.  While Mr Adam conceded that 'the fundamental principle that public land should be used for public purposes is sound', he said that this principle is not 'the be all and end all'.  Mr Adam considered the development to be appropriate because it contributes to the 'liveliness, health and welfare' of the locality.

3. The Tribunal accepts Mr Shigeyoshi's evidence.  While, as Mr Blyth submitted on behalf of Mr and Mrs Savill, road reserves have traditionally been used by children for sporting activities, the critical issue in this case is not use as such, but rather, the appropriation of part of the public domain for an essentially private recreational purpose by the erection of a substantial physical structure.  It is not consistent with the purpose of a road reserve as described by Mr Shigeyoshi to monopolise public land for essentially private recreation, even if the public land is located just 2 metres from one's front boundary.

4. The fact that Mr and Mrs Savill's son may shoot hoops with friends from the locality or even that, on occasion, children who live across the road may use the basketball hoop on their own, does not alter this finding.  As Mr Shigeyoshi correctly said, the development is, ultimately, 'a private facility on public land'.  The structure was erected by Mr and Mrs Savill in consequence of their son's keen interest in basketball.  The location of the structure, adjacent to the driveway serving Mr and Mrs Savill's property and only 2 metres from their front boundary, together with its appearance, using materials selected to complement Mr and Mrs Savill's house, give a clear impression of a private facility operated in conjunction with their residence.

5. Furthermore, the fact that Mr and Mrs Savill seek a time-limited consent until their son reaches the age of 18 does not alter the Tribunal's finding.  While the structure is not intended to be permanent, it would, nonetheless, appropriate or monopolise part of the public domain for a substantial period of time.

6. The development for which approval is sought is, therefore, inconsistent with the purpose of the road reserve.

Public policy

1. While the Council was concerned about potential civil liability, the Tribunal accepts that an approval could be conditioned on the maintenance of an appropriate insurance policy naming the City as an interested party and on the provision of an indemnity by Mr and Mrs Savill to the City to protect the City in the event that the insurance policy is not maintained or does not cover the City for ensuing liability.  However, for reasons discussed earlier, it is contrary to the established planning principle recognised in Cantello and generally inappropriate in town planning terms for an essentially private development to appropriate or monopolise part of the public domain.

2. Mr and Mrs Savill and a number of the local residents who they called to give evidence emphasised the importance of encouraging children to play sport and to socialise.  They also emphasised the importance of providing sporting facilities in a safe environment.  Mr Savill gave the following evidence:

   I am acutely aware of the need for my children to exercise and of the general social issue of child[hood] obesity.

   I say that it is in the interests of the community as a whole that children should exercise as often as possible and that public land, including street verges, should be utilised to promote that general health objective.

   The benefit of the basketball hoop being situated where it is, is that it enables my son Connor and other children from Shea Grove to play in the immediate vicinity of their homes and in circumstances where their presence and whereabouts is highly visible.  The fact that they use the basketball hoop in the circumstances set out above increases their general safety.

3. There is no doubt that children should be encouraged to exercise and socialise in a safe environment, particularly in an age where many children spend so long sitting in front of a computer or television.  However, that does not, at least under the current town planning framework, justify the private appropriation of public land.  It does not enable, as a matter of orderly and proper planning, a landowner to, in effect, extend their private domain into the public domain.  Unless and until the local planning framework – in particular, the Verge Policy – is amended to clearly contemplate the erection of private recreational structures on public land to address the health related issues identified by Mr and Mrs Savill, they need to move the basketball hoop onto their land.

1. There was discussion during the hearing as to where a basketball hoop could be accommodated in the front part of the Saville property.  Suggestions made by Mr Shigeyoshi included mounting the hoop on top of the garage or erecting the structure elsewhere in the area between the front boundary and the front door.  While these alternatives may not be as optimal for Mr and Mrs Savill as leaving the structure where it is, because they may result in balls going over the backboard onto the roof of the garage or the need to alter paving and landscaping, these matters do not, in the Tribunal's assessment, justify the appropriation of public land.

2. Mr and Mrs Savill presented photographs of a number of basketball hoops that have been erected, apparently without approval, in the area.  While this evidence warrants enforcement action by the Council, it does not justify the approval of the structure in the circumstances of this case.  Orderly and proper public administration requires consistency.  While, no doubt, the Council is subject to resource constraints, it is important that similar structures – particularly if brought to the attention of the City – are treated in a similar way in terms of enforcement of CPS 5.

3. Mr and Mrs Savill relied on Mr Adam's evidence that the City should have followed its Policy No: 01-005 Community Engagement (Community Engagement Policy) and initiated community consultation in relation to this matter.  However, the Community Engagement Policy does not appear to require the Council to undertake a process of community consultation in relation to a specific development application.  Rather, it is a broad policy to provide communities with 'the opportunity to provide feedback on projects and issues which impact on their amenity and enable the best possible outcomes for the community'.

4. Finally, Mr and Mrs Savill relied on Mr Adam's evidence that the Council should amend the Verge Policy to contemplate private basketball hoops on street verges.  Mr Shigeyoshi said that there is presently no proposal to amend the Verge Policy to contemplate basketball hoops in road reserves.  The question of whether the Verge Policy should be amended in this way is beyond the scope of this proceeding and is a matter for the Council as the strategic planning authority for its district.

Adverse planning precedent

1. Precedent is a relevant consideration in a planning assessment where each of the following two criteria is satisfied:

   1)That the proposed development or subdivision is not, in itself, unobjectionable.

   2)That there is more than a mere chance or possibility that there may be later undistinguishable applications:

   Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117.

2. Each of these criteria is satisfied in this case.  The structure is not, in itself, unobjectionable, because the fact that it is not contemplated by the specific and detailed Verge Policy is an indication that it is inappropriate and the development involves the appropriation or monopolisation of public land which is inconsistent with the purpose of the road reserve.  There is more than a mere chance or possibility of later undistinguishable applications, given that there were previously two other such developments in the street and there appear to be a number of similar structures in the area generally.

3. While each planning application must be assessed on its own merits, approval of the structure in this case is likely to set a precedent for the approval of similar applications and thus result in a significant cumulative impact on the public domain in general and on road reserves in particular.  Furthermore, as Mr Shigeyoshi observed, even if a single structure does not, in itself, have an unacceptable impact on streetscape, 'the cumulative effect of having several structures in a single street would be detrimental to the streetscape'.

Determination of review application

1. The basketball structure in issue in this case is contrary to the orderly and proper planning of land in the area (see cl 7.8(b) of CPS 5) and therefore warrants refusal in the exercise of planning discretion.  The structure is not contemplated by the specific and detailed Council Verge Policy regulating private development of road verges, which is an indication that it is an inappropriate development.  Furthermore, the development involves the appropriation or monopolisation of public land for essentially private recreational purposes by the erection of a substantial physical structure.  Orderly and proper planning, as assessed in the context of the current planning framework, does not generally permit a landowner to, in effect, extend their private domain into the public domain.  There is no specific circumstance in this case that would justify a departure from this established planning principle.

2. If, ultimately, the community considers that the health-related issues raised by Mr and Mrs Savill warrant a change in the planning framework to contemplate private recreational structures on public land, then the planning framework, and specifically the Verge Policy, requires amendment.  However, that is beyond the scope of this proceeding and is a matter for the Council to consider as the strategic planning authority for its district.

3. Approval of the development in this case would also set an adverse planning precedent that is likely to lead to further applications and a significant cumulative impact of similar structures on the public domain in general and road reserves in particular.  Further applications and approvals are also likely to have a detrimental cumulative impact on streetscape.  The finding in relation to precedent further supports refusal of the application.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision made by the respondent on 6 January 2010 to refuse retrospective planning approval for a basketball pole, backboard and hoop on the road verge adjacent to No 7 Shea Grove, Leeming is affirmed.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER

Attachment