| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : THOMAS and TOWN OF CAMBRIDGE [2013] WASAT 206 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 DECEMBER 2013 FILE NO/S : DR 400 of 2013 BETWEEN : GRAEME THOMAS JEAN THOMAS
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords: Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) - Tribunal affirmed decision to refuse to grant development approval for existing front fence - Whether Tribunal erred in law - Whether Tribunal failed to have regard to design principles for street walls and fences in State Planning Policy 3.1 Residential Design Codes Legislation: Land and Environment Court Act 1979 (NSW), s 56A
Planning and Development Act 2005 (WA), s 244, s 244(2)(b)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27(2), s 60(2), s 78(1), s 79
State Planning Policy 3.1 - Residential Design Codes, cl 1.2, cl 1.4, cl 5.2.4, cl 5.2.4 P4, cl 5.2.4 C4, cl 7.3.1, cl 7.3.2, Appendix 1
Town of Cambridge Town Planning Scheme No 1, cl 19(3) Result: Tribunal's determination revoked
Matter remitted to Tribunal as originally constituted for determination in accordance with law
Summary of Tribunal's decision: Mr and Mrs Thomas sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Town of Cambridge to refuse development approval for an existing front fence. Mr and Mrs Thomas contended that the Tribunal erred in law in the determination by failing to have regard to whether the fence satisfies the relevant design principles for street walls and fences in cl 5.2.4 P4 of State Planning Policy 3.1 - Residential Design Codes.
The judicial member confirmed that, in a review by a judicial member upon a matter involving a question of law, the Tribunal's reasons for determination must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, and not in an overly critical or pernickety manner, and that the judicial member should not be concerned with looseness of language or phrasing. However, viewing the Tribunal's determination and reasons in this manner and context, the judicial member determined that the Tribunal erred in law in failing to have regard to whether the fence conforms to the relevant design principles. The judicial member also determined that, given the legal and practical significance of the design principles in the circumstances of the case, the Tribunal's error is of a sufficiently material character that it vitiates the entirety of the determination.
The Tribunal's determination was therefore revoked and the matter was remitted to the Tribunal as originally constituted for determination in accordance with law.
Category: B
Representation: Counsel:
Applicants : Mr JCW Skinner
Respondent : Mr CA Slarke
Solicitors:
Applicants : Jackson McDonald
Respondent : McLeods
Case(s) referred to in decision(s):
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Svedas v Council of the City of Sydney [2011] NSWLEC 215
REASONS FOR DECISION:
Application for review by a judicial member 1 Mr Graeme Thomas and Mrs Jean Thomas have sought review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Senior Sessional Member Mr A Ednie-Brown (determination). In the determination, the Tribunal affirmed the decision of the Town of Cambridge (Town or Council) to refuse development approval for an existing front fence at No 14 Bournville Street, Floreat (site). The site is located at the corner of Bournville Street and Highbury Street, Floreat, and the fence addresses both streets. 2 The determination and reasons for the determination were given orally by the Senior Sessional Member on 2 October 2013 after an adjournment of a little under two hours following the hearing. The hearing consisted of the Tribunal's prior review of written submissions filed by Mr and Mrs Thomas and the Town, a view of the site accompanied by the representatives of the parties, and oral submissions made by each of the parties. Mr and Mrs Thomas subsequently requested the Tribunal to give its reasons for the determination in writing under s 78(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal issued a written transcript of the part of the proceeding in which the determination and reasons for the determination were given orally as the Tribunal's reasons in writing for the determination under s 79 of the SAT Act (reasons). 3 On 30 October 2013, Mr and Mrs Thomas sought review by a judicial member of the determination of the Tribunal under s 244 of the PD Act. Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member, as defined in s 3(1) of the SAT Act. Senior Sessional Member Ednie-Brown is not a legally qualified member. 4 In their application for review by a judicial member, Mr and Mrs Thomas raise the following single ground of review: That the Tribunal erred in law in the determination by failing to have regard to whether the front fence the subject of the application for review satisfies the provisions of design principle P4 in cl 5.2.4 (Street walls and fences) of State Planning Policy 3.1 - Residential Design Codes (RCodes). 5 In a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal are not to be examined 'minutely and finely with an eye keenly attuned to the perception of error' and the judicial member should not be 'concerned with looseness in the language … nor with unhappy phrasing': Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. Similarly, as her Honour Justice Pepper observed in Svedas v Council of the City of Sydney [2011] NSWLEC 215 (Svedas) at [20], in summarising the principles applied in determining an appeal to the Land and Environment Court of New South Wales under s 56A of the Land and Environment Court Act1979 (NSW) against an order or a decision of the Court on a question of law, made by a Commissioner or Commissioners, - which principles, in my view, are equally apposite in determining an application for review under s 244 of the PD Act - 'a "fine toothcomb" approach should be eschewed when considering the reasons of the Commissioner [or member] in any endeavour to discover error' and the Court or judicial member 'is not to take an overly critical or pernickety approach in examining the Commissioner's [or member's] decision' (citations omitted). 6 In my view, for reasons given below, the Tribunal erred in law in the determination by failing to have regard to whether the front fence satisfies design principle P4 in cl 5.2.4 of the RCodes and therefore failing to determine whether the fence conforms to the RCodes. The error of law is of a sufficiently material character that it vitiates the entirety of the Tribunal's determination.
Tribunal's reasons for determination 7 As noted earlier, the Tribunal's determination and reasons for the determination were given orally after an adjournment of a little under two hours following the hearing. The Senior Sessional Member's reasons were brief, occupying three pages of transcript and taking, according to the transcript, approximately 12 minutes to deliver. 8 After referring to the Town's decision which was the subject of the review proceeding and noting that 'the relevant background facts' were not in dispute, the Senior Sessional Member said the following: In coming to my decision I have considered the matters raised in the submissions, in the relevant matters under the Town Planning Policy 3.1 - Streetscape - and the current Rcodes, all of which were drawn to my attention by the parties during the conduct of the hearing, and together with the details of the subject fencing for which retrospective approval has been sought. (reasons T: 2.4 - 2.5, 02.10.13) 9 Over the course of approximately two pages of transcript, the Senior Sessional Member then summarised submissions made by the representatives of Mr and Mrs Thomas and the Town. The Senior Sessional Member noted that Mr and Mrs Thomas's representative referred to the fence as 'not, in itself, detract[ing] from the streetscape environment, a point with which [the Town's representative] … agreed' (reasons T: 2.8, 02.10.13). The Senior Sessional Member then noted that Mr and Mrs Thomas's representative drew 'attention to the high degree of openness of the site on the corner - on the street corner, the site planning of which was clearly evident from the documents provided and from my earlier view of this morning' (reasons T: 2.9, 02.10.13). 10 A little later in the reasons, the Senior Sessional Member said: [Mr and Mrs Thomas's representative] then moved to refer to the Rcodes, sections 5.1.2, 5.2.3, 5.2.4 - design principles, which [Mr and Mrs Thomas's representative] submitted were principles to which the fencing answered respectfully, and which, I think, drew on one of the aims of the local planning policy to ensure that houses are not obscured from view from the street and maintain the openness of streetscapes, enhancing the environment and passive surveillance of the street.
(reasons T: 3.5 3.6, 02.10.13) 11 When referring to the Town's representative's submissions, the Senior Sessional Member said the following: And where in part, that the Rcodes, as [Mr and Mrs Thomas's representative] had quoted, section 5.1.2, 5.2.3, 5.2.4, and together with the aims of the local planning policy to ensure that houses are not obstructed from view from the street, have not been observed to the satisfaction of the town and where the town's strong objective is to open up the streetscape. (reasons T: 4.2 - 4.4, 02.10.13) 12 The Senior Sessional Member then expressed his reasons for the determination as follows: The tribunal finds that the argument put forward by the applicant is both well-presented and cogent, but I am unable to logically accept that [Mr and Mrs Thomas's representative's] calculations of percentage permeability can reasonably include the 200 millimetre lower than maximum height permitted for the horizontal slats. It is certainly true that by nature of the rising ground over the street intersection that vision or permeability is enhanced over the fence but I believe that the actual construction of the fence, the position of the slats and their separation from each other is the relevant aspect of the town's local planning policy 3.1. Finally, I cannot overlook the fact that the planning approval for the construction of the residence dated 12 July 2011 had at Condition 2, the requirement of a 1:1 permeability condition on which the town at this hearing has strongly maintained. Mr Thomas explained this oversight in the construction of the existing fence as falling on the neglect of the landscaping and fencing contractor but unfortunately the tribunal cannot accept this neglect as ameliorating the situation. For the reasons briefly stated as above, in the context now of an oral finding on the day, I find in favour of the respondent. The application for review is therefore dismissed. A transcript will be provided to both parties, in this case without cost to the parties. The listing of the proceedings to continue on Friday the 4th is now vacated. Thank you.
(reasons T: 4.4 - 4.9, 02.10.13)
Did the Tribunal err in law? 13 Clause 19(3) of the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme) states as follows: Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes. 14 Clause 1.2 of the RCodes states: The purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia
(Words written in bold print in the RCodes have a corresponding definition in Appendix 1: cl 1.4) 15 Element 5.2 of the RCodes concerns streetscape. In particular, cl 5.2.4 of the RCodes concerns street walls and fences. Clause 5.2.4 of the RCodes includes a deemedtocomply provision and corresponding design principles. The deemedtocomply provision in cl 5.2.4 C4 of the RCodes states as follows: Front fences within the primary street setback area that are visually permeable above 1.2m of natural ground level, measured from the primary street side of the front fence. 16 Clause 7.3.1 of the RCodes states that local planning policies, local development plans, local structure plans and activity centre plans may contain provisions that amend or replace specified deemedtocomply provisions in the RCodes, including the deemedtocomply provision in relation to street walls and fences in cl 5.2.4, provided that any such amendments or replacements 'are to be consistent with the relevant design principle'. Relevantly, clause 6.2.5 of the Town's Local Planning Policy 3.1 - Streetscape (LPP 3.1) replaces the deemedtocomply provision in cl 5.2.4 C4 of the RCodes with 'acceptable development provisions' (adopting the terminology used in the RCodes prior to the current version of the RCodes gazetted on 2 August 2013) in relation to the determination of development applications for residential development within the local government area of the Town. It is unnecessary to set out the relevant acceptable development provisions in these reasons. 17 It is evident from the first paragraph of the extract from the Tribunal's reasons for its determination set out at [12] above that the Senior Sessional Member was not satisfied that the existing fence conforms to the acceptable development provisions in LPP 3.1 which replace the deemedtocomply provision in cl 5.2.4 C4 of the RCodes. Mr and Mrs Thomas do not seek to challenge that finding in this review. 18 However, local planning policies, local development plans, local structure plans and activity centre plans cannot amend or replace design principles stated in the RCodes (see cl 7.3.1 and cl 7.3.2 of the RCodes) and LPP 3.1 does not purport to do so. In the proceeding before the Senior Sessional Member, Mr and Mrs Thomas contended that, if the fence is found not to conform to the relevant deemedtocomply/acceptable development provisions in LPP 3.1, then the fence nevertheless conforms to the RCodes, because it complies with the corresponding design principles for street walls and fences stated in cl 5.2.4 P4 of the RCodes. Clause 5.2.4 P4 of the RCodes states as follows: Front fences are low or restricted in height to permit surveillance (as per clause 5.2.3) and enhance streetscape (as per clause 5.1.2), with appropriate consideration to the need: • for attenuation of traffic impacts where the street is designated as a primary or district distributor or integrator arterial; and • for necessary privacy or noise screening for outdoor living areas where the street is designated as a primary or district distributor or integrator arterial. 19 Mr and Mrs Thomas concede that the bullet points in cl 5.2.4 P4 of the RCodes are not relevant, because the two streets addressed by the fence are not primary or district distributor or integrator arterial roads. However, Mr and Mrs Thomas contended in the hearing before the Senior Sessional Member (and contend in this review) that the fence is 'low or restricted in height to permit surveillance' and 'enhance[s] streetscape', in conformity to the applicable design principles. 20 Mr and Mrs Thomas submit in this review that the Tribunal erred in law in the determination because, having concluded that the fence does not conform to the acceptable development provisions in LPP 3.1, which relevantly replace the deemedtocomply provision in cl 5.2.4 C4 of the RCodes, the Senior Sessional Member: … failed to then give consideration in his oral reasons for the Determination to whether the Fence complies with or satisfies the provisions of Design Principle P4 of Element 5.2.4 of the RCodes. Rather, the Senior Sessional Member concluded that as the Fence does not satisfy the acceptable development criteria contained in LPP 3.1, the application for review ought to be dismissed. 21 In contrast, the Town submits that, when the Tribunal's reasons are read in full and adopting the approach referred to at [5] above, 'it is apparent the Senior Sessional Member did have due regard to relevant planning considerations including the Residential Design Codes'. In particular, the Town emphasises the Senior Sessional Member's statement that, in coming to his decision, he 'considered the matters raised in the submissions, in the relevant matters under the Town Planning Policy 3.1 - Streetscape - and the current Rcodes, all of which were drawn to my attention by the parties during the conduct of the hearing …' (reasons T: 2.4, 02.10.13) and the Senior Sessional Member's reference on two occasions in the reasons to Mr and Mrs Thomas's representative's reference to and quotation from 'sections 5.1.2, 5.2.3, 5.2.4 - design principles' in the RCodes. 22 The Town also submits that, in considering the merits of the application, the Senior Sessional Member 'evidently gave weight' to the streetscape objective stated in LPP 3.1 in the exercise of discretion and that '[t]he weight to be given to the various considerations was a matter for the Senior Sessional Member, and did not involve any error of law …'. 23 I am conscious that the Tribunal's reasons for its determination must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, and not in an overly critical or pernickety manner, and that I should not be concerned with looseness of language or phrasing. I am also conscious that the terms of the design principles in relation to street walls and fences in cl 5.2.4 P4 of the RCodes were referred to in the parties' submissions during the hearing before the Senior Sessional Member and that the member gave an oral immediate decision after a relatively short adjournment following the hearing. 24 However, viewing the Tribunal's determination and reasons in this manner and context, it is clear that the Tribunal erred in law in failing to have regard to whether the fence satisfies the design principle in cl 5.2.4 P4 of the RCodes. 25 Although the Senior Sessional Member recounted that Mr and Mrs Thomas's representative had referred to and quoted from the design principles in cl 5.2.4 of the RCodes, significantly, the Senior Sessional Member did not himself refer to the terms of that provision, nor did he provide any analysis of whether that provision was satisfied in the course of his reasons. Furthermore, it appears from the Tribunal's reasons that the Senior Sessional Member became distracted from the central task of considering whether the fence conforms to the design principles in cl 5.2.4 P4 of the RCodes by his assessment of the application in the context of LPP 3.1. In the extract from the reasons at [10] above, the Senior Sessional Member appears to express the view that cl 5.2.4 P4 of the RCodes and/or Mr and Mrs Thomas's representative's reference to it 'drew on the aims of the local planning policy …'. However, while there is overlap between the streetscape provisions of the RCodes and LPP 3.1, the RCodes and Mr and Mrs Thomas's representative's reference to the design principles in cl 5.2.4 P4 do not 'draw on' LPP 3.1 and the Tribunal was required to address whether the development conforms to the design principles without including in that assessment the aims of LPP 3.1. Further, it is apparent from the extract of the Tribunal's reasons at [12] above that, as Mr and Mrs Thomas submit, 'the Senior Sessional Member concluded that as the fence does not satisfy the acceptable development criteria contained in LPP 3.1, the application for review ought to be dismissed'. 26 Furthermore, as Mr and Mrs Thomas submit, although there is overlap between the streetscape provisions in LPP 3.1 and the terms of the design principles in cl 5.2.4. P4 of the RCodes, 'it does not follow that the failure to satisfy the provisions of LPP 3.1 also results in a failure to satisfy the provisions of Design Principle P4'. 27 Although, as the Town correctly submits, the provisions of LPP 3.1 were relevant in the exercise of planning discretion and the weight to be given to various considerations in the exercise of planning discretion was a matter for the Senior Sessional Member, the Tribunal was relevantly required by cl 19(3) of TPS 1 to consider and decide, as a central matter in the determination, whether the fence conforms to the design principles in cl 5.2.4 P4 of the RCodes. The Tribunal erred in law by failing to do so. Given the legal and practicable significance of the design principles in cl 5.2.4 P4 of the RCodes in the circumstances of this case, the Tribunal's error is of a sufficiently material character that vitiates the entirety of the determination.
Conclusion 28 The Tribunal erred in law in its determination, as alleged by Mr and Mrs Thomas in this review, in that it failed to have regard to whether the front fence the subject of the application for review before it satisfies the design principles in relation to street walls and fences in cl 5.2.4 P4 of the RCodes. The error of law is of a sufficiently material character in the circumstances of this case that it vitiates the entirety of the Tribunal's determination. 29 Mr and Mrs Thomas submit that, having regard to the parties' written submissions filed for the purposes of the proceeding before the Senior Sessional Member and concessions made by the Town's representative at the hearing that the Town was not concerned with the fence in terms of surveillance of the street or as having any detrimental impact on streetscape 'in considering whether the Fence satisfies or complies with Design Principle P4 of Element 5.2.4 of the Rcodes, the Tribunal ought to find that it does'. Mr and Mrs Thomas submit, therefore, that 'the application for review ought to be upheld, the decision of the [Town] to refuse the application for retrospective planning approval for the Fence ought to be set aside and the [judicial member] ought to substitute a decision granting such retrospective planning approval'. 30 In the course of his oral submissions before the Senior Sessional Member, the Town's representative essentially conceded that the fence conforms to the design principles in cl 5.2.4 P4 of the RCodes. The Town's representative said: I do agree with the applicant that you can see into the house and this fence does promote surveillance. And I do have to say that the fence, I guess, doesn't detract from the streetscape.
(hearing T: 33.3, 02.10.13) 31 This was a fundamental concession given that conformity to the RCodes is a central consideration in the exercise of planning discretion. However, irrespective of the Town's concession, the Tribunal has to itself be satisfied that the fence conforms to the RCodes, because the Tribunal is required by s 27(2) of the SAT Act 'to produce the correct and preferable decision'. Furthermore, although conformity to the design principles in cl 5.2.4 P4 of the RCodes is a central consideration in the exercise of planning discretion in this case, objectives and other provisions of LPP 3.1 (although not the acceptable development provisions if the fence conforms to the design principles in cl 5.2.4 P4 of the RCodes) may also be relevant in the exercise of planning discretion. In a planning case, the Tribunal's exercise of planning discretion is usually assisted by a view of the site and locality. 32 Section 244(2)(b) of the PD Act authorises me to 'revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to [the] matter'. However, as Senior Sessional Member EdnieBrown conducted a view of the site and locality and is, with the benefit of these reasons, able to determine whether the fence conforms to the design principles in cl 5.2.4 P4 of the RCodes and to exercise planning discretion to determine the development application, the matter should be remitted to him for determination in accordance with law. 33 Although the parties each made written and oral submissions in the hearing before the Senior Sessional Member, in fairness to the parties in light of these reasons, they should have the opportunity to file any further submissions before the Tribunal determines the application for review. Subject to my further order, the application for review should be determined entirely on the documents (including the transcript of oral submissions made on 2 October 2013) under s 60(2) of the SAT Act.
Orders 34 I therefore make the following orders: 1. The application for review by a judicial member is allowed. 2. The determination of the Tribunal made on 2 October 2013 dismissing the application for review in proceeding DR 279 of 2013 is revoked. 3. The application for review in proceeding DR 279 of 2013 is remitted to Senior Sessional Member Mr A EdnieBrown for determination in accordance with law. 4. By 14 January 2014, each party may file, and if so must serve, any supplementary written submissions in proceeding DR 279 of 2013. 5. By 21 January 2014, each party may file, and if so must serve, any written submissions in reply to the other party's submissions filed in accordance with the preceding order. 6. Subject to any order made in DR 279 of 2013, the determination of the application for review in proceeding DR 279 of 2013 is to be entirely on the documents, under s 60(2) of the State Administrative Tribunal Act 2004 (WA), including the transcript of oral submissions made on 2 October 2013, and with the benefit of the view undertaken by the Tribunal on 2 October 2013, and the Tribunal's decision is to be published as soon as possible after the filing of any submissions in according with the preceding two orders. |