Smith & Anor and City of Fremantle

[2007] WASAT 153

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   SMITH & ANOR and CITY OF FREMANTLE [2007] WASAT 153

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   15 JUNE 2007

FILE NO/S:   DR 70 of 2007

BETWEEN:   KELVIN SMITH

LJILJANA SMITH
Applicants

AND

CITY OF FREMANTLE
Respondent

Catchwords:

Town planning - Local government direction - Air­conditioning unit installed without development approval - Whether installation of air­conditioning unit is "development"

Legislation:

City of Fremantle Local Planning Scheme No 4
City of Fremantle Town Planning Scheme No 3, cl 1, cl 14, cl 21, cl 55
Planning and Development Act 2005 (WA), s 4(1), s 214(3), s 255
Residential Design Codes of Western Australia (2002), cl 3.10.2
Town Planning and Development Act 1928 (WA)

Result:

Application for review dismissed and decision to give direction affirmed

Category:    A

Representation:

Counsel:

Applicants:     Ms LM Ranford

Respondent:     Mr DH Nadebaum

Solicitors:

Applicants:     Freehills

Respondent:     McLeods

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

Conomos v Chryssochoides (1997) 97 LGERA 113

Morea Architects and Town of Vincent; Law and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301

Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302

Randall and Town of Vincent [2005] WASAT 129

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr and Mrs Smith installed a standard‑sized air‑conditioning unit in an elevated position to the side of their house without development approval.  The unit was apparent from the street and an adjoining house.  The local government gave Mr and Mrs Smith a direction requiring them to remove the unit.  Mr and Mrs Smith sought review of this decision on the basis that the installation of the unit is not "development" and did not require development approval.

2. The Tribunal determined that the installation of the air‑conditioning unit in the circumstances of the case satisfied both the literal meaning of  and the purpose served by the definition of "development".  The installation, therefore, required development approval.

3. The application for review was dismissed and the decision to give the direction was affirmed.

Introduction

1. The sole issue in this review is whether the installation of an air‑conditioning unit required development approval.  This issue turns on whether the installation of the air-conditioning unit is "development" within the meaning of the Planning and Development Act 2005 (WA) (PD Act).

Factual background

1. On 15 November 2004, the City of Fremantle (City or Council) granted development approval to Mr and Mrs Smith under the City of Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme) for the erection of a two‑storey house at No 12 Crandon Street, Fremantle (site).  The site is the second‑last property from the end of Crandon Street, which is a "no‑through road".  There is a park on the opposite site of Crandon Street.

2. The approved house was constructed.  On 1 November 2006, an air‑conditioning unit was installed above the garage on the eastern side of the house.  Development approval was not sought under TPS 3 for the installation of the air‑conditioning unit. 

3. The air‑conditioning unit has a height of 1220 millimetres, a width of 1100 millimetres and a depth of 320 millimetres.  It is located approximately 2.8 metres above ground, approximately 9.0 metres from the front boundary of the site and approximately 2.5 metres from the eastern side boundary.  

4. On 25 November 2006, the air‑conditioning unit was re‑oriented 90 degrees from its originally intended position, flush with the upper‑storey wall, to lessen perceived impact on the streetscape, and the existing insulation was replaced with more effective material to reduce noise levels.  On 3 February 2007, the air‑conditioning unit was relocated closer to the upper‑storey wall and lowered by 250 millimetres towards the garage roof to further reduce perceived visual impact on the streetscape.

5. The site adjoins No 14 Crandon Street to the east.  No 14 Crandon Street comprises a single‑storey house with its entrance located on its western side adjacent to the common boundary with the site.  The air‑conditioning unit is located adjacent to the entrance of No 14 Crandon Street, approximately 0.5 metre higher than the awning over the entrance porch.  The air‑conditioning unit is set back approximately 5.0 metres from the house on No 14 Crandon Street.

6. The air‑conditioning unit is clearly apparent when the site is viewed from the south‑east on Crandon Street and from certain locations within the park, although it is screened from other locations by trees.  The air‑conditioning unit is also clearly apparent from a number of internal and external positions along the western side of No 14 Crandon Street.  The following six photographs show the air‑conditioning unit:

   •Attachment A – View from south‑east from Crandon Street;

   •Attachment B – View from entrance area of No 14 Crandon Street;

   •Attachment C – View from entrance porch of No 14 Crandon Street;

   •Attachment D – View from dining room window of No 14 Crandon Street;

   •Attachment E – View from covered terrace of No 14 Crandon Street;

   •Attachment F – View from outdoor area adjacent to dining room of No 14 Crandon Street.

7. On 14 February 2007, the City gave Mr and Mrs Smith a direction under s 214(3) of the PD Act requiring them to "pull down" the air‑conditioning unit and to restore the site as nearly as practicable to its former condition. The direction asserted that the air‑conditioning unit is "development" and was installed without development approval as required by TPS 3.

8. On 6 March 2007, Mr and Mrs Smith sought review under s 255 of the PD Act of the City's decision to give the direction on the basis that the installation of the air‑conditioning unit is not development and did not require development approval.

Did the installation of the air‑conditioning unit require development approval?

1. TPS 3 was replaced by the City of Fremantle Local Planning Scheme No 4 shortly after the commencement of these proceedings.  However, it is common ground that the issue before the Tribunal is whether development approval was required for the installation of the air‑conditioning unit under TPS 3.

2. Clause 14 of TPS 3 stated that "[t]he consent of the Council is required for any development within the Scheme Area". The term "development" was defined by cl 21 of TPS 3, unless the context required otherwise, as having the same meaning as given to it in the Town Planning and Development Act 1928 (WA) (TPD Act). The TPD Act was replaced by the PD Act on 9 April 2006. The term "development" is defined in s 4(1) of the PD Act, unless the contrary intention appears, as follows:

   "'Development' means the development or use of any land, including –

   (a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;

   (b)the carrying out on the land of any excavation or other works; … "

3. Mr and Mrs Smith submit, correctly, that the answer to the question of whether development approval was required for the installation of the air‑conditioning unit "hinges on what does in fact constitute a 'development' for the purposes of the [PD Act]".  I consider that the installation of the air‑conditioning unit in this case is "development" for the purposes of the definition in the PD Act incorporated into TPS 3 and therefore required development approval under the Scheme for the following reasons. 

4. There does not appear to be a contrary intention to the application of the definition of "development" to the meaning of that word in cl 14 of the Scheme.  The installation of the air‑conditioning unit falls within the literal meaning of the words of the definition.  The installation involved the "erection … of … [a] structure on the land" under par (a) of the inclusive part of the definition.  Furthermore, the installation involved "the development … of … land" within the meaning of the opening words of the definition. 

5. In University of Western Australia v City of Subiaco (1980) 52 LGRA 360, Burt CJ held at 363‑364 as follows:

   "In my opinion the definition of 'development' in the Town Planning and Development Act makes use of and encompasses two ideas.  The first is the 'use' of the land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself': see Parkes v Environment Secretary (1978) 1 WLR 1308 at 1311 per Lord Denning MR."

6. Mr and Mrs Smith contend that the facts of this case do not satisfy the second "idea" referred to by Burt CJ.  They submit that the air‑conditioning unit is:

   •not immovably affixed, but rather has been placed on the roof with pipes running from the unit throughout the roof;

   •not unusual in size for an air‑conditioning unit on a residential property;

   •discreetly positioned at the side of the house where it is not unexpected for air‑conditioning units observable throughout the metropolitan area; and

   •not visually imposing on the surrounds, particularly because it has been rotated and positioned to minimise adverse visual impact on the streetscape.

7. However, the installation of the air‑conditioning unit has clearly resulted "in some physical alteration to the land which has some degree of permanence to the land itself".  It is not necessary that a structure be immovably affixed in order for its installation to constitute "development".  It matters not that the air‑conditioning unit is of a standard size.  The air‑conditioning unit is not discreetly positioned given that it is in an elevated position and can be seen from both the public domain and, at close quarters, from the adjoining property at No 14 Crandon Street.  For reasons which follow, it may matter whether a structure has a visual amenity impact in order for its installation to constitute "development".  However, the air‑conditioning unit in this case has a visual amenity impact when viewed from the street, the park and the adjoining property. 

8. In Randall and Town of Vincent [2005] WASAT 129, I determined at [93] that a purposive approach to the determination of whether a particular activity constitutes a "use" of land for the purposes of the definition of "development" in the TPD Act was appropriate. At [90]‑[92], I reviewed relevant NSW decisions as follows:

   "Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302 was an appeal to the New South Wales Court of Appeal from the decision of the Land and Environment Court that certain gates constituted 'buildings', for which prior development approval and building approval was required to be obtained, and that, there being no such approval, the gates should be removed. Although, on the hearing of the appeal, counsel for the appellant indicated that the appeal against the finding that the gates were 'buildings' was abandoned, and that the appeal was maintained only in relation to the exercise of the lower court's discretion to order the removal of the gates, Mahoney JA, who delivered the principal judgment, considered in some detail the proper approach to the determination of 'what things or actions come within' the scope of planning legislation.

   Section 4(1) of the Environmental Planning & Assessment Act 1979 (NSW) ('EP&A Act') (which regulated town planning) defined 'development' to include 'the erection of a building'.  At 305, his Honour noted that the relevant definition of 'building' for the purposes of the EP&A Act and the Local Government Act 1919 (NSW) (which regulated building licensing), included 'any structure or part thereof'. His Honour continued, at 305‑308, as follows:

   'The definitions have traditionally caused difficulty and, I suspect, embarrassment to those whose rights depend on them or who must administer them.  It has, for example, been suggested that the definitions must be given their literal meaning and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; "building" includes "structure"; and accordingly a structure of any kind may not be erected or altered unless the council's approval has been formally sought and obtained.  But if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused.

   It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature envisaged.  The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. …

   The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve.  This is, of course, a long recognised approach to the construction of statutes; more recently, in has been described as "purposive". …

   In principle, the purposive approach to construction of, for example, "structure" or "erect" would proceed in a manner such as the following.  The court would determine the purposes which the legislature had sought to achieve by prescribing that no structure may be erected without council approval.  I shall assume, by oversimplification, that that purpose was the safety and stability of the structure.  The court would then adopt from among the possible meanings of "structure" and "erect" that meaning which would give effect to that purpose. … '

   A 'purposive' approach to the determination of whether development approval was required in relation to a particular activity has been followed in the Land and Environment Court.  In Conomos v Chryssochoides (1997) 97 LGERA 113, two houses were built approximately one metre from a common boundary. The applicants complained of detriment to their amenity by the construction of water and sewerage pipes on the external wall of the neighbouring house. The applicants claimed a declaration that, in constructing the pipes, the respondent had carried out 'development', in breach of s 76(2) of the EP&A Act, and an activity for which prior building approval was required, in breach of s 68 of the Local Government Act 1993 (NSW). The definitions of 'development' and 'activity' for the purposes of these provisions included 'the erection of a building' and 'building' included 'a structure or part of a structure'. Sheahan J held at 120‑121 as follows:

   'In this case I rely on the objects of the Acts in question and agree that they include conferring power on local councils over the general amenity of the neighbourhood and environment in their locality.

   Although the pipes are not physically large and may seem of little importance to the general environment, they are certainly not seen as trivial by those situated closest to them within their environment. …

   I accept that the pipes in this case constitute a structure or part of a structure, if on no other basis that their effect upon the amenity on the adjoining neighbour is unreasonable in all the circumstances.

   The purposes of both Acts include conferring responsibility on a local council to regulate the general amenity of the neighbourhood, and a neighbourhood is after all made up of individual neighbours whose individual amenities cannot be trivialised.

   I therefore find that the pipes are relevantly a "structure"; and therefore a "building"' … "

9. For reasons discussed in relation to similar legislation in Mulcahy v Blue Mountains City Council, I consider that a purposive approach should be adopted in the determination of whether a particular activity constitutes "the development or use of any land" for the purposes of the definition of "development" in the PD Act as incorporated into TPS 3.  Clause 1 of TPS 3 states that the Council made the Scheme for purposes including "controlling land development" and "promoting and safeguarding the health, safety, convenience and economic and general welfare of its inhabitants and the amenities of the district".  An elevated air‑conditioning unit set back approximately 2.5 metres from the common boundary with an adjoining house could plainly transmit noise across the boundary and thereby affect the "convenience … and general welfare" of the occupants of the adjoining property and their residential amenity.  Furthermore, as the attached photographs show, the air‑conditioning unit affects the visual amenity of the locality.  I consider that it was, therefore, within the clear scope and purpose of TPS 3 to regulate, by requiring the submission of a development application and its planning assessment, the installation of the air‑conditioning unit in the circumstances of this case. 

10. The parties made submissions in relation to whether the air‑conditioning unit conforms to the Acceptable Development or corresponding Performance Criteria in cl 3.10.2 of the Residential Design Codes of Western Australia (2002) (Codes).  However, the Codes do not bear on whether the installation of the air‑conditioning unit is "development" and consequently required development approval under TPS 3.  The provisions of the Codes would bear on whether a development application, if it had been made, should be approved, as cl 55 of TPS 3 required that the development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of the Codes.  However, as noted earlier, a development application was not made in this case to authorise the installation of the air‑conditioning unit.

11. Finally, Mr and Mrs Smith note that if development approval were required for the installation of an air‑conditioning unit in the circumstances of this case, it would give rise to an administrative burden on the City and assist "vexatious neighbours".  However, these considerations do not warrant a different interpretation of TPS 3.  Furthermore, the answer to these concerns lies in thorough preparation of development applications, clear identification of exempt categories of development under the Local Planning Scheme and proper application of discretion in planning enforcement: see Morea Architects and Town of Vincent; Law and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 at [61]‑[63].

Conclusion

1. The Tribunal has determined that the installation of the air‑conditioning unit in this case involved "development" and, therefore, required development approval under TPS 3.  Development approval has not been obtained.  It follows that the application for review should be dismissed and the decision of the City to give the direction to Mr and Mrs Smith should be affirmed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision of the City of Fremantle on 14 February 2007 to give a direction to the applicants pursuant to s 214(3) of the Planning and Development Act 2005 (WA) requiring the applicants to pull down an air‑conditioning unit installed on the east side of the dwelling at No 12 Crandon Street, Fremantle and to restore the land as nearly as practicable to its condition immediately before the installation of the air‑conditioning unit is affirmed.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER

Attachment A –View from south‑east from Crandon Street

Attachment B – View from entrance area of No 14 Crandon Street

Attachment C – View from entry porch of No 14 Crandon Street

Attachment D – View from dining room window of No 14 Crandon Street

Attachment E – View from covered terrace of No 14 Crandon Street

Attachment F – View from outdoor area adjacent to dining room of No 14 Crandon Street