Smith and City Of Fremantle
[2007] WASAT 322
•21 DECEMBER 2007
[2007] WASAT 322
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SMITH and CITY OF FREMANTLE
[2007] WASAT 322MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 DECEMBER 2007 FILE NO/S : DR 295 of 2007
BETWEEN : KELVIN SMITH Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development - Refusal - Reconsideration by decision-maker under s 31 of the State Administrative Tribunal Act 2004 (WA) - Conditional approval by council on reconsideration - Application to withdraw proceedings - Submission by third party with interest
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 8.4.1, cl 10.2.1
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 214(3), s 242, s 252(1), s 255
State Administrative Tribunal Act 2004 (WA), s 31, s 46(1)[2007] WASAT 322
Result:
The applicant has leave to withdraw the proceedings and the proceedings are hereby withdrawn
Category: B
Representation:
Counsel:
Applicant : Ms LM Ranford Respondent : Mr DH Nadebaum
Solicitors:
Applicant : Freehills Respondent : McLeods
Case(s) referred to in decision(s):
Smith & Anor and the City of Fremantle [2007] WASAT 153
[2007] WASAT 322
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The City of Fremantle refused an application from Mr Kelvin Smith
for retrospective planning approval of the development of an air conditioning unit on the roof of the house at No 12 (Lot 7) Crandon Street, Fremantle. Mr Smith filed an application for review of that decision with the Tribunal. The parties exchanged additional information and the Tribunal then invited the City of Fremantle to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
2 The City of Fremantle reconsidered the matter and set aside its
decision and substituted a new decision. The new decision was to approve the development subject to conditions concerned with screening and baffling to conceal the air conditioning unit and address noise.
3 The applicant accepted the Council's new decision and applied to the
Tribunal for leave to withdraw its application for review. The City of
Fremantle consented to the application for withdrawal.4 The next-door neighbour at No 14 Crandon Street applied to the
Tribunal for leave to make a submission because she was directly affected by the development. The Tribunal granted the neighbour leave to make a submission on the application for withdrawal.
5 The neighbour filed a submission. The Tribunal found that the
submission had essentially addressed the merits of the proposed development and questioned the conclusions drawn by the City of Fremantle in making its decision. This was beyond the grant of leave given by the Tribunal.
The Tribunal has found no grounds for refusing the application from Mr Smith and the application for review is now withdrawn.
Factual background
7 In February 2007, the City of Fremantle (City or Council) gave
Mr Kelvin Smith and Mrs Ljiljana Smith of No 12 Crandon Street, Fremantle a direction under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) requiring them to "pull down" an air conditioning unit on their roof because planning approval had not been sought for its installation.
[2007] WASAT 322
8 Mr and Mrs Smith sought a review under s 255 of the PD Act of the
Council's direction on the basis that installation of the air conditioning unit was not development.
9 In June 2007, the Tribunal determined that the installation of the air
conditioner in this case involved development, and development approval had not been obtained. The Tribunal dismissed the application for review and affirmed the Council's notice: Smith & Anor and the City of Fremantle [2007] WASAT 153.
10 Mr Kelvin Smith (applicant) then applied for retrospective
planning approval for the air conditioning unit, as provided for under cl 8.4.1 of the City of Fremantle Local Planning Scheme No 4 (LPS 4). This application was refused by the Council on 16 August 2007.
An application for review under s 252(1) of the PD Act of Council's refusal was filed with the Tribunal by the applicant on 30 August 2007.
12 At directions on 12 September 2007, the Tribunal ordered the
respondent to identify the issues arising in the matter and the applicant to
consult with an expert.13 At a further directions hearing on 26 September 2007, the Tribunal
invited the respondent, on receipt of additional information from the applicant, to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
14 On 18 October 2007, the Tribunal received from solicitors for
Ms Jean Tonkinson a request for leave for Ms Tonkinson to make a submission under s 242 of the PD Act as a person who was not a party to the application but had a sufficient interest in the matter. Ms Tonkinson is the proprietor of No 14 Crandon Street, Fremantle, next-door to the site. In Smith & Anor and City of Fremantle [2007] WASAT 153, the Tribunal noted the proximity of Ms Tonkinson's front door and side windows to the air conditioning unit.
15 On 7 November 2007, the Planning Services Committee of the City,
under delegated power, resolved to approve the application for the addition of the air conditioning unit and screening to the house at No 12 Crandon Street. The approval was subject to three conditions:
"1. The air conditioning unit shall be screened from view from any public street/neighbouring property to a minimum height of 1.5m above the roof of the existing [2007] WASAT 322
garage, in accordance with the approved plans and within
28 days from the date of this decision.2. The screening hereby permitted shall be designed and installed to be acoustically baffled, by a qualified acoustic engineer[,] to ensure any noise emission is minimised to the satisfaction of the Chief Executive Officer.
3. Upon installation, a report shall be submitted by a suitably qualified acoustic engineer certifying that the proposal incorporates sufficient sound attenuation measures to limit noise impact on adjoining properties to within the requirements of the Environmental Protection (Noise) Regulations 1997."
At a directions hearing on 22 November 2007, the orders issued by the Tribunal included:
"1. The Tribunal notes that pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) the respondent has set aside its previous decision and granted approval for the additions to a single house (air conditioning unit and screening) at No 12 (Lot 7) Crandon Street, Fremantle subject to three conditions.
2. The applicant pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) seeks leave to withdraw from these proceedings.
3. The respondent consents to the withdrawal of these proceedings.
4. The Tribunal determines that Ms Jean Tonkinson has sufficient interest in the matter and as such is to be afforded the opportunity to make a written submission on the withdrawal of these proceedings.
… 7. Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA)."
On 6 December 2007, solicitors for Ms Tonkinson filed on her behalf submissions as provided for in O 4.
[2007] WASAT 322
| 18 | Section 31 of the SAT Act states: "Tribunal may invite decision-maker to reconsider | |||
|
(a) affirm the decision; (b) vary the decision; or (c) set aside the decision and substitute its new decision. (iii) if the decision-maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision."
19 The respondent has reconsidered its original decision, set it aside and
substituted its new decision of 7 November 2007. Unless the proceeding is withdrawn, the Tribunal now has before it, for review, the Council decision of 7 November 2007.
20 The applicant has no issue with the Council's new decision.
The applicant has applied for leave to withdraw the application and the respondent has consented.
Ms Tonkinson's submission
The submission by Ms Tonkinson comprised submissions from her solicitor, herself and her consultant architect.
22 Ms Tonkinson said she will consent to the withdrawal if conditions 2
and 3 are replaced with two different conditions concerning screening, noise transmission across the boundary and relocation of the air conditioning unit for any contravention.
23 The solicitors advised that there had been previous correspondence
with the respondent in relation to the matters it should have regard to in determining the application for approval. The submission then set out the points made in relation to the matters the Council must have regard to
[2007] WASAT 322
under cl 10.2.1 of LPS 4. Conclusions reached by Ms Tonkinson on analysis of the merit of the proposal in respect of those matters listed in cl 10.2.1 and Council policies related to them were provided.
24 The submission further commented that, from its consideration of
technical information and the proximity of the buildings, the conditions
imposed by the Council were inadequate.25 The submission informed the Tribunal that, if the air conditioning
unit is not to be relocated to the rear yard, then the additional conditions, which are then set out, must be imposed before Ms Tonkinson will consent to the withdrawal of the application.
Comment
26 The Tribunal notes that the City had before it Ms Tonkinson's earlier
submissions on cl 10.2.1 and her view of how the application should have been determined. The Tribunal also considers that, from the conditions imposed on the applicant, it is apparent the City turned its mind to the technical aspects of screening and noise transmission.
27 That the City considered the merits of the matter in light of the
requirements in LPS 4 and the submissions before it and came to a conclusion different from that which the neighbour would want is not a basis for refusing the application to withdraw.
28 The orders of the Tribunal of 22 November 2007 granted
Ms Tomkinson leave to make submissions on the withdrawal application. The submission received goes beyond the grant of leave as it extends to submissions and evidence on the merits of the development and the discretion the City exercised when determining the application.
29 The Tribunal also notes Ms Tonkinson's requirements for her
consenting to the withdrawal but would comment that it is for the Tribunal to determine whether or not to grant leave for the withdrawal of the proceeding.
The Tribunal has not found in the submission any ground for refusing the application for leave to withdraw.
The application for leave to withdraw
31 The City has reconsidered the matter as provided for under s 31 of
the SAT Act. It set aside its original decision and substituted it with the
decision of 7 November 2007.[2007] WASAT 322
The Tribunal has now before it the City's decision of 7 November 2007. The applicant has no issue with the City's substituted decision.
33 There is now no dispute between the applicant and the respondent in
respect of the City's decision of November 2007. The Tribunal has considered the decision of the City and the submissions before it and has found no reason why leave should not be granted to the application to withdraw the proceedings.
| Orders |
1. Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA), the applicant have leave to withdraw the proceedings and the proceedings are hereby withdrawn.
2. There be no order as to costs.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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