SUN CITY COUNTRY CLUB INC and CITY OF WANNEROO
[2018] WASAT 19
•13 MARCH 2018
SUN CITY COUNTRY CLUB INC and CITY OF WANNEROO [2018] WASAT 19
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 19 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:211/2017 | 7 AND 8 DECEMBER 2017 | |
| Coram: | MR J JORDAN (MEMBER) | 13/03/18 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Refusal of the application for retrospective development approval affirmed | ||
| B | |||
| PDF Version |
| Parties: | SUN CITY COUNTRY CLUB INC CITY OF WANNEROO |
Catchwords: | Town planning Development Refusal Application for retrospective approval Chain mesh fence 2.1 metre high Golf course Fence adjacent to rear boundaries of lots with rear or side boundary abutting the golf course Existing estate boundary fence 1.1 metres high post and rail and mesh Uniform fencing condition on subdivision approval Agreement between golf course and abutting residential subdivider Changed circumstances since agreement Compatibility of the development with its setting and neighbouring uses Impact on local character and amenity Safety and security considerations |
Legislation: | City of Wanneroo Town Planning Scheme No 2, cl 1.6(f), cl 3.14.3, cl 4.19, Sch 9 Metropolitan Regional Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 1, cl 67, Sch 2 Planning and Development Act 2005 (WA), s 252(1) |
Case References: | Petchell v Shire of Williams [2011] WASAT 61 |
Orders | The Tribunal makes the following orders:,1. The application for review is dismissed.,2. The decision of the respondent made on 30 May 2017 to refuse the application for retrospective development approval is affirmed. |
Summary | These proceedings involved an application for review of a decision by the local government to refuse to grant retrospective development approval for a 2.1 metre high black plastic coated chain mesh fence erected adjacent to an existing 1.1 metre high post and rail boundary fence along about 500 metres of the eastern boundary of the Sun City Country Club golf course at Yanchep. ,The fence was said to be required for security and safety reasons because of a large number of kangaroos entering the course following the clearing of neighbouring bush for housing development and because of incidents of vandalism, including by vehicles entering the golf course.,The Tribunal considered the compatibility of a proposed development with its setting and the impact of the development on the character and amenity of the locality. The Tribunal concluded that, in the context of fencing now permitted on the boundary of the golf course with public places and the extent of housing development now in the neighbouring housing estate, the proposed fence was not required to keep out animals. The Tribunal also concluded that the security of the course was adequately served by the new boundary fencing that has been allowed adjacent to the public spaces and, on balance, by the presence of the abutting house lots and the existing boundary fence of the housing estate. The Tribunal weighed these conclusions against the impact of the fence on its constructed alignment on the abutting residential lots and determined that the fence was not compatible with its setting and would have an undesirable impact on the local character and amenity. The Tribunal decided to dismiss the application for review. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SUN CITY COUNTRY CLUB INC and CITY OF WANNEROO [2018] WASAT 19 MEMBER : MR J JORDAN (MEMBER) HEARD : 7 AND 8 DECEMBER 2017 DELIVERED : 13 MARCH 2018 FILE NO/S : DR 211 of 2017 BETWEEN : SUN CITY COUNTRY CLUB INC
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development - Refusal - Application for retrospective approval - Chain mesh fence 2.1 metre high - Golf course - Fence adjacent to rear boundaries of lots with rear or side boundary abutting the golf course - Existing estate boundary fence 1.1 metres high post and rail and mesh - Uniform fencing condition on subdivision approval - Agreement between golf course and abutting residential subdivider - Changed circumstances since agreement - Compatibility of the development with its setting and neighbouring uses - Impact on local character and amenity - Safety and security considerations
Legislation:
City of Wanneroo Town Planning Scheme No 2, cl 1.6(f), cl 3.14.3, cl 4.19, Sch 9
Metropolitan Regional Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 1, cl 67, Sch 2
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Refusal of the application for retrospective development approval affirmed
Summary of Tribunal's decision:
These proceedings involved an application for review of a decision by the local government to refuse to grant retrospective development approval for a 2.1 metre high black plastic coated chain mesh fence erected adjacent to an existing 1.1 metre high post and rail boundary fence along about 500 metres of the eastern boundary of the Sun City Country Club golf course at Yanchep.
The fence was said to be required for security and safety reasons because of a large number of kangaroos entering the course following the clearing of neighbouring bush for housing development and because of incidents of vandalism, including by vehicles entering the golf course.
The Tribunal considered the compatibility of a proposed development with its setting and the impact of the development on the character and amenity of the locality. The Tribunal concluded that, in the context of fencing now permitted on the boundary of the golf course with public places and the extent of housing development now in the neighbouring housing estate, the proposed fence was not required to keep out animals. The Tribunal also concluded that the security of the course was adequately served by the new boundary fencing that has been allowed adjacent to the public spaces and, on balance, by the presence of the abutting house lots and the existing boundary fence of the housing estate. The Tribunal weighed these conclusions against the impact of the fence on its constructed alignment on the abutting residential lots and determined that the fence was not compatible with its setting and would have an undesirable impact on the local character and amenity. The Tribunal decided to dismiss the application for review.
Category: B
Representation:
Counsel:
Applicant : Mr D Barker
Respondent : Mr C Slarke
Solicitors:
Applicant : Chalmers Legal Studio Pty Ltd
Respondent : McLeods Barristers and Solicitors
Case(s) referred to in decision(s):
Petchell v Shire of Williams [2011] WASAT 61
Introduction
1 These proceedings involve an application brought by Sun City Country Club Inc (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Wanneroo (Council or respondent) made on 30 May 2017 to refuse to grant retrospective development approval for a 2.1 metre high chain mesh fence adjacent to a section of the boundary of the Sun City Country Club golf course at Lot 888 (No 144) St Andrews Drive, Yanchep (golf course, site).
Site and locality
2 The site has an irregular shape, but can be generally described as extending about 1.5 kilometres north-south with an east-west width varying between 200 metres and 400 metres and, from near the northern end, having a 'leg' about 200 metres wide extending east then curving to the south. The site has undulating terrain developed as a private golf course. The club house and associated social and member facilities are in buildings in the northwest corner. A sewer in an easement crosses the golf course from the residential area to the east, but is not apparent, and adjacent to the rear of the houses at about numbers 35 and 37 Parkland Drive are drainage works modelled to look like natural waterways that would collect run off from the housing area, act as a sump and channel excess water along a course to a lake further north on the site. These drainage works are described in the documents of the applicant as a 'barranca'.
3 Abutting the eastern side of the main section of the golf course is a residential subdivision that has been referred to by the subdivider and developer, Peet Limited (Peet), as the 'Yanchep Golf Course Estate' (referred to herein as the Peet estate), although it has never has been a business endeavour associated with the applicant. The eastern 'leg' of the golf course extends around the northern extent of this residential estate. Residential lots in Parkland Drive of the Peet estate have a rear boundary common with the site, as do lots in Birdie Grove and Bunker Crescent. Houses have been built on all but three lots in Parkland Drive and one lot in each of Birdie Grove and Bunker Crescent.
4 The earthworks associated with the residential subdivision have resulted in the houses at 3 to about 11 Parkland Drive being near level with the ground level of the site. From that point north the level of the house pads step up at a greater rate than does the ground level of the site so that the house pads are increasingly at a relatively higher level compared to the base of the fence until at number 27 the house pad becomes about level with about the top of the fence and beyond that house pads become higher than the top of the fence.
5 To the east of the golf course and of the residential estate is bushland marked for future residential development bounded to the east by a primary regional road reserve and the Yanchep National Park.
6 Abutting the northern and western boundaries of the site are residential lots with houses, except at the southwestern corner of the golf course where there are newly created lots perched above a high retaining wall.
Planning framework
7 The development is a fence near a boundary adjacent to an existing boundary fence on the common boundary between the golf course and the abutting residential lots. It was common ground between the parties that the development did not constitute a boundary fence required to be assessed under City of Wanneroo Fencing Local Law 2016, but was development that required the granting of planning approval under City of Wanneroo Town Planning Scheme No 2 (TPS 2 or Scheme).
8 The site is reserved as 'Private Recreational' and the surrounding area is zoned 'Urban' under the Metropolitan Region Scheme. The site is zoned 'Private Clubs/Recreation' under TPS 2. The housing to the west of the site is zoned 'Residential' and the area being subdivided and developed for residential use to the east of the golf course, including Parkland Drive, is zoned 'Urban Development' with an overlay of 'Environmental Condition area 2' (ECA 2). Schedule 9 of TPS 2 sets out the environmental management plans to be prepared, implemented and monitored for this locality. The proposed development does not have a bearing on these plans.
9 City of Wanneroo Agreed Structure Plan No 68 (Structure Plan 68) was prepared for land in the Urban Development zone abutting the golf course as required under cl 3.14.3 of TPS 2 so that subdivision, including the creation of the lots referred to in this matter could occur. Clause 6.1(b) of Structure Plan 68 requires the preparation of a Detailed Area Plan (DAP) (now known as a local development plan under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Planning Regulations 2015)) for development in particular localities. DAP 2 covers Numbers 3 9 Parkland Drive, DAP 4 covers Numbers 11 41 Parkland Drive and DAP 7 covers numbers 1 3 Bunker Crescent and 3 Birdie Grove.
10 Clause 4.19 of TPS 2 provides:
Where a non residential development is proposed to be located on a lot having a common boundary with a lot that is zoned or developed for residential purposes, a screen wall at least 1.8 metres in height and to a standard specified by the local government shall be provided along the common boundary of the two lots to protect the residential amenity.
11 The Tribunal would comment that notwithstanding the wording of this clause, it considers that this requirement does not serve to be determinative of the matter, particularly in circumstances when the nonresidential development is a fence and there is already a boundary fence. The other requirements to be considered, as set out below and in the discussion are also relevant to the determination of the merit of the form of development proposed.
12 The Planning Regulations 2015 provide that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The pertinent subclauses relating to this application are provided in cl 67 as follows:
(a) the aims and provisions of this Scheme …;
(b) the requirements of orderly and proper planning … ;
…
(m) the compatibility of the development with its setting including the relationship with the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
…
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w) the history of the site where the development is to be located;
…
(y) any submissions received on the application;
…
(zb) any other planning consideration the local government considers appropriate.
13 The term 'amenity' is defined in cl 1 of Sch 2 of the Planning Regulations 2015 as follows:
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity.
The development
14 The development for which the retrospective approval is being sought is described by the applicant as a 'security fence'. It is a black plastic coated chain mesh fence 2.1 metres high. The fence is set back between about 30 50 centimetres from the common boundary of the site with 23 residential lots on the adjoining Peet estate. The fence is adjacent to the rear boundary of 3 41 Parkland Drive and 3 Bunker Crescent and side boundaries of 3 Bunker Crescent and 3 Birdie Grove, in total a length of about 500 metres. The fence was also erected on the common boundary of the site with the Bunker Crescent, Birdie Grove and Stableford Loop road reserves and other sections of the northern and eastern boundaries, but those sections of fence are not included in this matter.
15 The fence is attached to metal posts 2.4 metres high and the application is to retain three strands of barbed wire to a height of 2.4 metres adjacent to vacant residential lots until such time as the lots are built on and adjacent to the house at 27 Parkland Drive while a platform remains in the tree in the rear yard.
Council's decision
16 The Council refused the application for the reasons:
a) The fencing is incompatible in its setting; given its appearance and height; and
b) The fencing is considered to have a detrimental impact on the amenity of adjoining residents.
The issues
17 The issue in this matter is whether the development should be granted approval having due regard to the relevant matters to be under the Planning Regulations 2015.
Discussion
18 Prior to the hearing the Tribunal had a view of the site, accompanied by the parties and their representatives. The Tribunal was shown the course layout, the barranca, water courses and bodies and the existing boundary fencing common with bushland and with neighbouring residential subdivisions, including where necessary retaining walls had been constructed. The Tribunal also viewed the fence in dispute from within the golf course and from the rear yards of the houses at Numbers 7 and 15 Parkland Drive and the vacant lots at 3 Bunker Crescent and 3 Birdie Grove.
19 The applicant called as witnesses Mr Greg Mitchell, President of the applicant and Mr James Pettit, a consultant in Occupational Health and Safety. The respondent called Mr Stephen Allerding, Planning Consultant, and Mr Craig Graham, a senior Development Manager for Peet. The following residents of Parkland Drive also filed a statement and were called by the respondent for examination by the applicant, Mrs Alison Smith, Ms Fiona Elliot, Ms Heather Powell, Mr Michael Tierling and Mr Peter Wallace.
20 Clause 67(w) of the Planning Regulations 2015 requires consideration of the history of the site where the development is to be located. Relevant to this matter is the history of the site as it relates to the subdivision and development of the Peet estate. The Western Australian Planning Commission (WAPC) granted approval for the subdivision that created numbers 3 37 Parkland Drive, abutting the eastern boundary of the site on 15 August 2011 (reference 143298). Condition 25 of the subdivision approval required construction of uniform fencing along the boundaries of all of the lots abutting the site.
21 In June 2011 the applicant and Peet signed an agreement that included preparation of various plans and implementing a range of works that affected both the golf course and the Peet estate. Clause 12.1 of the agreement was concerned with boundary fencing. The parties to the agreement agreed at cl 12.1(a) that Peet at its cost would construct boundary fencing along the common boundary, as shown on an interface plan at Annexure A of the agreement, which included the lots the subject of this review, excluding open space and on the boundary between the golf course and Yanchep Beach Road. At cl 12.1(b) of the agreement the fence was to be primarily post and rail, incorporating mesh or like to preclude access from the residential land by 'for example, children and pets' and otherwise be designed and constructed in accordance with indicative design principles set out in Annexure B of the agreement. Peet erected a 1.1 metre high post and rail boundary fence consistent, as Mr Allerding said, with option 1 of the indicative fence designs at Annexure B with 900 millimetres of mesh attached.
22 Both Mr Allerding and Mr Mitchell were examined on the particular content of the agreement and the resultant boundary fence. The Tribunal has no evidence that would disturb its conclusion that in 2011 the boundary fence built was acceptable to both Peet and the applicant. There was no challenge by the applicant at that time that the fence was not consistent with the 2011 agreement. The fence built in 2011 was deemed to satisfy condition 25 of the WAPC's subdivision approval.
23 On the evidence of Mr Mitchell it was subsequent events that led the applicant to form the view that the boundary fencing on the eastern boundary of the golf course was inadequate and a new security fence was required, either in addition to or as a replacement for the existing boundary fence. Mr Mitchell said that when Peet began clearing the bush for its housing estate the course became 'infested' with kangaroos. Mr Graham and the respondent acknowledged that by sheer numbers the kangaroos began to become a nuisance on the golf course. At about the same time the course was subject to occasional acts of vandalism, including by vehicles entering the course and driving on fairways and greens and the theft of property.
24 The applicant and Peet began negotiations on a joint solution to the activity the applicant now wanted to address. Peet initially included in the discussions an additional sewer easement and various financial arrangements, but ultimately the negotiations were mostly about fencing on the Peet estate boundary. Fencing styles discussed included mesh fencing and 'garrison' fencing, akin to pool style fencing up to about 1.8 metres high within limestone pillars, as built on the golf course boundary with the housing estate to the north. In late 2016 Mr Graham said Peet drafted an agreement for the construction of garrison fencing, which included both parties making a financial contribution. The applicant rejected the proposals and went ahead and built the fence now in dispute. Mr Mitchell's evidence was that:
… There was a couple of reasons. The first reason was that we had already entered into a contract with the fencing contractor. All their materials and everything was onsite and was ready to lay. We had had numerous discussions with residents with regards to helping them come to a suitable arrangement but we couldn't get general consensus and we couldn't get everybody to agree as to, 'Yes, we can take the fence down', 'No, we can't take the fence down', 'We would like this type of fence' and prior to us ordering all the materials, we had these discussions. One of the residents has now sold and moved out, which I had discussions with her as well. So in the finish, we went ahead and because we couldn't get general consensus and we had all these other things attached to us agreeing with Peet, we had to go ahead and get this fence put in place.
(T:73; 08.12.17)
25 There was no dispute that by late 2016 Peet had erected a fence on its land to the east of the developed lots to prevent the movement of kangaroos from the remaining bush to the houses and the golf course. The respondent had no issue with the 2.1 metre high mesh fence with three strands of barbed wire erected by the applicant on the boundary of the site common with road reserves and public open space.
26 In examining Mr Allerding, Counsel for the applicant said in framing a question:
… So the reason why they've asked for a fence is they want to put up a security fence. And that is the basis upon which the application to the local authority was made. It's the basis upon which the tribunal has to consider the matter. This is a safety fence. …
(T:109; 08.12.17)
27 Mr Pettit, called by the applicant, filed a witness statement that included the comment that a fence under 2.1 metres '… would not be adequate to provide a safe barrier to the general public and members of the community'. He listed that without a 2.1 metre high fence there was an extreme risk to people from outside of the golf course of fatality or severe injury, of people drowning in water hazards, of vandalism, of antisocial behaviour and increased animal movements. These opinions were reached by reference to a table in AS/NZS 4360:2004 and from '…experience gained from preparing Risk Assessments, Security and Traffic Management Plans…'.
28 Under cross-examination Mr Pettit acknowledged that he had not visited the site and he was not able to locate on plans, until told, where the fence was located, which houses were adjacent, where any water hazards might be or what other methods had been used to prevent kangaroos from entering house lots and the golf course. Mr Pettit did not produce the document from which the table was copied and acknowledged that the Australian standard from which it was taken was replaced in 2009 by AS/NZS ISO 31000:2009. He acknowledged that he did not follow the procedure for a risk assessment set out in the 2009 Australian Standard which starts with establishing the context and includes interviewing neighbours.
29 The Tribunal found that Mr Pettit's explanations of his conclusions were mostly generalisations, some of which were plausible, that did not relate to the facts, either assumed or proven, of this case. As cited by Counsel for the respondent, relevant principles in considering expert evidence include that an expert must expose the reasoning relied on in reaching an opinion and the opinion must be rationally based: Petchell v Shire of Williams [2011] WASAT 61 at [35]. The Tribunal placed little weight on Mr Pettit's evidence.
30 In the examination of Mr Allerding and Mr Mitchell, there was considerable discussion on the adequacy of the existing post and rail boundary fence to prevent animals and people, particularly children, from entering the golf course.
31 Mr Mitchell also said that a concern of the applicant was that the requirements of its insurers be satisfied. He referred to advice from Nexus Risk Services of 6 October 2017 provided in the applicant's supplementary bundle of documents attaching an email from Sportscover dated 6 December 2016, both dates after which the 2.1 metre high fence had been erected. Sportscover refers to a report by Venue Rating Agency Pty Ltd assessing risk at the golf course. Sportscover ask that the fence be 2.1 metres high to stop kangaroos and deter potential malicious damage such as graffiti. The attached Venue Rating Agency report attached to the Sportscover email dated 6 December 2016 is dated May 2016, before the 2.1 metre high fence was erected and the assessment was that the then existing perimeter security fence was in 'good condition' in one part of the assessment and in 'excellent' condition in another. Safety as relating to neighbouring properties and passersby was assessed as 'good'.
32 The applicant also produced a letter from Southern Wire, a firm that supplies and erects security fences dated 29 April 2016. Southern Wire commented on drains and ease of scaling the 1.1 metre high fence and recommended a 2.1 metre high chain mesh fence with three strands of barbed wire to preclude access.
33 Attached to the copy of the application for planning consent within the respondent's bundle of documents was a copy of the wording of the applicant's insurance policy 'Industrial Special Risk Golf Club ISR Policy Wording' prepared by Australian Golf Insurance. As stated by Counsel for the respondent, the policy does not refer to 2.1 metre high or any fencing. No witnesses were called from either Nexus, Sportscover, Australian Golf Insurance or Venue Rating Agency Pty Ltd that could assist the Tribunal by explaining what appear to be contradictions, or silence, in relation to fences and risk, depending upon date and author. The Tribunal would add that it is an objective of TPS 2 at cl 1.6(f) to promote development that has a high level of amenity and safety. The content of insurance policies is not a determinative factor in planning matters, although they may help inform considerations of safety. Such considerations are also influenced however by context, amenity and impact on neighbours. The Tribunal has not been convinced that advice from insurance brokers that the applicant erect a certain type of fence should be given any greater weight than the other matters it is necessary to consider when determining the planning merit of a development proposal.
34 Another reference by the applicant was to a report by Michael Coate Golf Design that conducted a safety audit in November 2010. The course was apparently built using a masterplan based on a design (which was not filed with the Tribunal) prepared in 2006 by firm Ogilvy Clayton. Mr Graham said the masterplan recommended a setback of 50 metres. The Michael Coate report says there is no universally accepted standard for fairway setback from a boundary but it recommends 50 metres from the centreline of the fairway. Mr Mitchell said the boundary at 27 Parkland Drive was set back 43 metres and at 13 Parkland Drive 38 metres. The Michael Coate report recommended removing trees and relocating the fairway to the west, but Mr Mitchell said the applicant was not in a position to relocate the fairways and he considered it had to take other precautions to ensure safety.
35 In respect to the setback between the boundary and the fairways, the Tribunal would comment that, other than reference to two lots not meeting the required minimum, there was no evidence led that examined the need for protection from potential impact from golf balls from the fairway adjacent to Parkland Drive houses. It was noted in the Michael Coates report that factors such as topography, distance and vegetation were relevant, as was likely ball trajectory, a predominance of right hand players and prevailing winds. There was no analysis of these factors particular to the circumstances, other than the comment that a 50 metre setback would be desirable to avoid any problems. The Tribunal was not satisfied that these two houses being set back less than 50 metres is sufficient to warrant the construction of some 500 metres of fence.
36 Clause 67(h) of the Planning Regulations 2015 requires consideration of any adopted local development plan (detailed area plan). The Tribunal would comment that the applicant is correct in its comment that the local development plans for the Peet estate, that require the living areas and major openings of the houses on the west side of Parkland drive to be orientated to look out over the golf course, do not mean that there can never be an application for development by the applicant that might impinge on that view.
37 The submissions received on the proposed development are required to be considered under cl 67(y) of the Planning Regulations 2015. In respect to these, the submissions, both written and oral from the residents of Parkland Drive set out their expectations, which can be understood in the context of the planning circumstances in place for the Peet estate when the houses were built and when most of them bought their house.
38 The Tribunal does, however, acknowledge that it is open to the applicant to apply for development that might alter the outlook from the dwellings. The Tribunal is required to balance the purpose of the development applied for and the compatibility of that development with its setting, including the relationship of the development with development on adjoining land '… including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance … ' (Planning Regulations 2015 cl 67(m)).
39 The Tribunal has concluded that the fence applied for is not necessary to secure the site from wandering animals, especially kangaroos. The discussion about the likelihood of kangaroos breaching the fence to the east of the residential development, making their way through the streets and then potentially jumping side gates of houses and the boundary fence did not persuade the Tribunal of the need for the fence for this purpose.
40 The proposed fence is not required to prevent vehicles entering the site because vehicles cannot get to the rear yards of the houses in Parkland Drive and any vehicle would have to breach the existing fence to gain access from the vacant lots. Public places are now separated from the golf course by the allowed 2.1 metre high fence.
41 The Tribunal has formed the view that the residents of Parkland Drive do not present a risk of vandalism sufficient to warrant a fence of the height proposed. This is influenced by accepting the submission that those residents would want to maintain the character and amenity of their locality. Further the Tribunal is of the view that the residents of the abutting lots would have normal awareness of their responsibilities for pets, children and visitors to their homes. Conceivably persons could trespass on the private lots abutting the golf course with the intent of gaining access to commit vandalism. The Tribunal does not accept, however, that a fence of the type proposed would necessarily deter those with sufficient criminal intent.
42 The Tribunal accepts that a 2.1 metre high fence presents a far greater barrier to persons than the existing 1.1 metre high boundary fence. As stated above, the Tribunal has not been convinced, however, that a barrier of this height is required.
43 In addition, the Tribunal is of the view that the fence, as built, has an unacceptable impact on the neighbouring development. The applicant submitted that the mesh and colour would assist in permitting a view through the fence to remain. Comment was made at the viewing that it was difficult to see the fence in the vicinity of the barranca. This fence was perhaps 15 metres from the fairway viewing location whereas the fence abuts the rear boundary of the houses. The fence was close and obvious in the viewing from the backyards and the vacant lots, notwithstanding that the golf course could be seen through it. In addition, the Tribunal has concern about the 300 - 500 millimetre gap between the fence and the boundary fence. The applicant's explanation of how this might be maintained was considered to have difficulties and likely would require either access permission from or the work to be done by the abutting land owners.
44 As pointed out by the applicant, for some 10 lots in Parkland Drive and for one aspect from the lot in Bunker Crescent, the house pad is at a higher level than the top of the fence. The view from the rear of the house would be over the fence. These lots do have terracing down to some yard space at ground level with the golf course near the boundary. The0proximity of the fence would have some impact, although it is accepted that the main outdoor recreation areas for these lots is likely to be closer to the house. The maintenance concerns about the proximity of the fence to the boundary fence remain, however.
45 The Tribunal is of the view that, while there might be individual lots where the impact of the fence might be acceptable, the fence is of a type that it cannot serve a useful purpose if it is broken up into separated sections of perhaps about 20 metres length adjacent to individual lots. The Tribunal is of the view that the fence must be considered as a whole and there is sufficient length where the Tribunal has concluded that it would have an unacceptable impact for it not to be supported.
Conclusion
46 As set out in the discussion above, the Planning Regulations 2015 require the Tribunal to have regard to the compatibility of a proposed development with its setting and the impact of the development on the character of the locality. The Tribunal has concluded that, in the context of fencing now permitted on the boundary of the golf course with public places and the extent of development now in the Peet estate, the proposed fence is not required to keep out animals. The Tribunal has also concluded that the security of the course is adequately served by the new boundary fencing that has been allowed adjacent to public spaces and, on balance, by the presence of the house lots and the existing boundary fence of the Peet estate. The Tribunal considers the length of fence and its setback from the boundary for which retrospective approval is being sought would have an undesirable impact on sufficient houses for the fence as a whole not to be supported.
47 The Tribunal has therefore decided to dismiss the application.
Orders
The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 30 May 2017 to refuse the application for retrospective development approval is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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