Tran and Town of Vincent
[2009] WASAT 123
•24 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TRAN and TOWN OF VINCENT [2009] WASAT 123
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JUNE 2009
FILE NO/S: DR 519 of 2008
BETWEEN: THANG TONG TRAN
HUU TRI NGUYEN
ApplicantsAND
TOWN OF VINCENT
Respondent
Catchwords:
Development application Grouped dwelling Town of Vincent Previous review by Tribunal Impact on amenity of adjoining properties Effective lot area Strata lot Streetscape Compliance with Residential Design Codes of Western Australia (2008) and local policy Whether application is identical to previous application determined by Tribunal Whether planning context has altered since previous decision Whether new issues have arisen to warrant different outcome
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2008), Element 6.3.2
Town of Vincent Town Planning Scheme No 1, cl 19, cl 38
Result:
Application for review upheld
Decision of respondent set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicants: Mr PD Webb (Acting as Agent)
Respondent: Mr SJ Bain (Acting as Agent)
Solicitors:
Applicants: Peter D Webb & Associates (Town Planners)
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Hughan and Town of Vincent [2006] WASAT 48
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is a review of the Town of Vincent's decision to refuse alterations to an existing dwelling and the construction of an additional two‑storey dwelling on a rear strata lot in Paddington Street, North Perth.
The plans of the proposed development were identical to an application for development on the same property, conditionally approved by the Tribunal in 2006.
The respondent argued that the proposed development was of excessive bulk and, because of its proximity to property boundaries, would cause an unacceptable impact on the amenity of adjoining properties. Neighbours had lodged objections to the proposed development.
The respondent argued that the effective area of the rear building site was too small and that the proposed new building would be built to the boundaries contrary to the respondent's recently adopted residential development control policy.
It was also posed that the proposed development would not be compatible with the streetscape of the area.
It was noted that the issues raised by the respondent in this review were generally the same as those addressed by the earlier considerations of the Tribunal in 2006.
After assessing the respondent's arguments, and having regard to the earlier review material, the Tribunal satisfied itself that the proposed development was able to be compliant with relevant planning requirements.
As the application was identical to that previously the subject of review, and because there was no significant change of planning context to warrant an alternative outcome from the previous decision of the Tribunal, the application for review was upheld and the proposed development was conditionally approved.
Introduction
This is an application for review of the Town of Vincent's (respondent) decision not to grant approval allowing alterations to an existing dwelling and the construction of an additional two‑storey dwelling at No 36 (Lot 500) Paddington Street, North Perth (site).
The application for development was submitted to the respondent on 10 October 2008.
Following referral of the proposed development to the proprietors of neighbouring properties and the subsequent receipt of submissions of objection, the respondent refused the application on 16 December 2008.
The applicants lodged an application for review of the respondent's decision with the State Administrative Tribunal (Tribunal) on 24 December 2008.
The proposed development and its context
The site is an irregularly‑shaped property in a well‑developed residential locality characterised by long, narrow, north‑south oriented rectangular lots, substantial dwellings and a distinctively regular streetscape.
The property has a southern street frontage of 16.3 metres and a depth of 45.66 metres. The lot narrows in steps, midway on its eastern side, such that the rear, northern half of the lot is narrowed to a width of 8.21 metres.
A single‑storey, brick and tile dwelling occupies the front (south‑east) portion of the lot, set back from the street by 5 metres and from the western boundary by about 5.5 metres.
Properties adjoining the site to the east, north and west are all occupied by dwellings. The residence at No 34 Paddington Street, east of the proposed development, is situated towards the rear of the property, in near proximity of the proposed additional dwelling.
The residence at No 38 Paddington Street, to the west, is located on the front portion of the property, similarly aligned to the house on the site.
The proposed development of the site can be described from the applicants' Plan No 2725, dated 10 October 2004, prepared by RM Davey & Associates (plan).
The plan illustrates construction of a laundry and store area at the rear of the existing dwelling and a double carport in the street setback area. At the rear of the property, a new two‑storey dwelling is to be constructed comprising a ground floor living area and upper level bedrooms. The new dwelling will incorporate a double carport accessed by a driveway along the western boundary of the property from Paddington Street.
Statutory and policy instruments
The locality in which the site is situated is zoned 'Urban' under the Metropolitan Region Scheme.
The property is zoned 'Residential' under the Town of Vincent Town Planning Scheme No 1 (TPS 1) with a site density code of R30/40.
The Zoning Table of TPS 1 identifies that the use class 'grouped dwelling' is a permitted use in the Residential zone.
Clause 19 of TPS 1 requires residential development to conform with the provisions of the Residential Design Codes of Western Australia (2008) (Codes).
Element 6.3.2 of the Codes provides performance criteria and acceptable development standards for walls on boundaries.
The performance criteria states that:
Buildings built up to the boundaries other than the street boundary where it is desirable to do so in order to:
•Make effective use of space; or
•Enhance privacy; or
•Otherwise enhance the amenity of the development;
•Not have any significant adverse impact on the amenity of the adjoining property; and
•Ensure that direct sun to major openings to habitable rooms and outdoor living areas of adjoining properties is not restricted.
Amongst other requirements, the acceptable development standard A2 states:
Except where otherwise provided in an adopted local planning policy, walls built up to a boundary behind the front setback line within the following limits, subject to the over shadowing provisions of design element 6.9:
…
(iii)In areas coded R30 and higher, walls not higher than 3.5 metres with an average of 3 metres for two[‑]thirds the length of the balance of a boundary behind the front setback, to one side boundary only.
Clause 38 of TPS 1 identifies that amongst other matters, the respondent, in determining an application, is required to have regard to:
•any relevant planning policy;
•any submission accompanying or related to the application;
•the orderly and proper planning of the locality;
•the conservation of the amenities of the locality; and
•the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
The Town of Vincent Residential Development Policy No 3.2.1 ‑ Residential Design Elements (Policy 3.2.1), was adopted in accordance with the provisions of TPS 1 on 18 December 2007.
Clause 6.4.1 of Policy 3.2.1 provides that 'new development should be designed to harmonise with the streetscape and adjoining properties'.
Policy 3.2.1 describes acceptable development criteria in regard to streetscape character at SADC 3 ‑ New Dwellings:
(a)New dwellings are to be compatible with the bulk and scale (including height, setbacks, roof form, colours and materials) of the existing dwellings in the locality and the streetscape.
Clause 6.4.2(vii) of Policy 3.2.1 provides that:
nil setbacks on more than one boundary and two[‑]storey building boundary walls will generally not be supported, unless suitable justification is provided, and an Amenity Impact Statement is submitted as part of the application for development.
History of the proposal
Of particular relevance to this review is the circumstance of a previous application for development at the site in 2005 by Mr J Hughan.
The application was based on the same plans prepared by RM Davey & Associates which are to be considered in this review.
The application was refused by the respondent on 12 July 2005 for the following reasons:
1)The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality.
2)The non‑compliance with setbacks, outdoor living area, privacy, buildings on boundary and essential facilities requirements of the Codes and the Town's Policy relating to the Knutsford Locality, respectively.
3)Consideration of the objections received.
4)The proposed subdivision does not comply with the requirements of either grouped or battleaxe subdivision.
Subsequently, the matter was reviewed by the Tribunal and determined in favour of the applicant on 24 February 2006 (Hughan and Town of Vincent [2006] WASAT 48) (Hughan).
In her summary of the Tribunal's 2006 decision, Member M Connor said:
The Tribunal considered the proposed development to be consistent with the planning intent for the area and satisfied the criteria set out under Policy 3.3.18, which supports the application of the higher coding. The identified non‑compliant matters are not considered to have a significant adverse affect [sic] on the amenity of the adjoining properties and for the reasons set out above, the Tribunal considers the proposed development to be acceptable and worthy of conditional approval.
The respondent's decision
On 16 December 2008, the respondent refused the current application, described as 'partial demolition of, and alterations, additions and additional two[‑]storey grouped dwelling to existing single house', for the following reasons:
1.Building bulk is considered excessive.
2.Loss of privacy[.]
3.Impact on amenity of neighbours.
4.Feeling of confinement.
5.Loss of sunlight and wind.
6.Consideration of objections received.
The respondent's argument
The respondent argues that the proposed new dwelling reduces the amenity of the adjoining properties because of its bulk and proximity to the lot boundaries.
It is also argued that modifications to the existing dwelling involving construction of a carport in the street setback will adversely affect the streetscape.
Witness for the respondent, Mr S Bain, a qualified and experienced town planner, provided advice that the effective site area for the proposed two‑storey dwelling at the rear of the site is only 188 square metres when the driveway area is subtracted. The Codes specify a minimum site area of 200 square metres for development at R40 density standards.
The proposed dwelling at the rear is effectively a battleaxe lot. The Codes require that a battleaxe lot should be a minimum of 400 square metres. Mr Bain argued that these circumstances illustrate that the rear site development area is too small to accommodate the proposed dwelling.
Mr Bain pointed out that the proposed dwelling will feature a 12.3 metre length wall on the eastern boundary and a 5.9 metre wall along the western boundary. As such, the proposed development exceeds the acceptable development standard of the Codes at Element 6.3.2, which limits the allowance for a building to be built to the boundary to occur on one side boundary only.
Mr Bain concluded that, in the circumstances, if a large two‑storey dwelling was proposed to be built boundary‑to‑boundary on a small lot, the amenity of the adjoining three properties would be affected.
Mr Bain listed a number of issues raised as objections by the neighbours. These include:
•Boundary setbacks
•Boundary walls
•Fencing Local Law
•Plans for a grouped dwelling[;] however[,] this appears to be a battleaxe arrangement
•Streetscape
•Local characteristics (setback, height, landscaping and fence design)
•Affects [sic] on amenity of adjoining properties
•Housing density
•Privacy encroachments
•Overshadowing
•Accumulation of variations[.]
On the issue of streetscape, Mr Bain identified that the proposed new gable‑ended carport in the street setback area projects to within 0.75 metre of the front boundary. The carport is not typical of the street and would impose adversely on the streetscape.
The second witness for the respondent, Ms A Burns, a Councillor of the Town of Vincent, provided advice that circumstances had changed since the Tribunal considered the application of 2005/6.
Councillor Burns advised the Tribunal that the respondent had adopted its Policy 3.2.1 in December 2007.
The proposed development does not comply with cl 6.1 of Policy 3.2.1 because it is not designed to harmonise with the streetscape and adjoining properties.
Councillor Burns was of the opinion that when all the elements of the design are considered together, the bulk and scale of the proposed development is not consistent with the existing dwellings in the locality. The proposal impacts on five properties either side of and behind the site.
Councillor Burns pointed out that cl 6.4.2(vii) of Policy 3.2.1 provides that 'nil setbacks on more than one boundary and two‑storey building boundary walls will generally not be supported, unless suitable justification is provided, and an Amenity Impact Statement is submitted as part of the application for development'.
No Amenity Impact Statement was lodged and no suitable justification was provided by the applicants.
Councillor Burns contended that because the application for development had not been amended to reflect the Tribunal's previously ordered conditions of approval, the present application is not the same as, or substantially similar to, the development previously approved. In Cr Burns' opinion, the matter is a new application.
The applicants' argument
The applicants set out the following summary of arguments in support of the proposed development:
1)Grouped Dwelling is a permitted use in the zone.
2)The higher density (R40) coding of the dual code is able to be applied because the development achieves certain benefits to the streetscape and promotes sustainable planning principles.
3)The site can accommodate two grouped dwellings at R40 density.
4)The development is consistent with the purpose and intent of the Residential zoning.
5)The proposal is identical to an earlier proposal allowed by the Tribunal.
6)The proposed new residence complies with provisions of the Codes in relation to privacy and overlooking. The narrow rear portion of the lot creates constraints which are addressed reasonably by the applicants. The proposal incorporates a parapet wall adjacent to, but not on, a portion of the eastern boundary.
7)The new dwelling is set back 21 metres from the street and will have no undue impact on the streetscape.
8)The design has responded to the existing character of the area through the selective use of design elements.
9)The issues raised by neighbours have been addressed.
Witness for the applicants, Mr P Webb, expressed the view that nothing has occurred since the earlier decision of the Tribunal to demonstrate any change of circumstances of the application.
Mr Webb acknowledged the adoption of Policy 3.2.1 in 2007, but offered the opinion that there is nothing in the policy which would require the Tribunal to change its earlier decision.
Mr Webb responded to the submission of Mr Bain that the proposed dwelling was large. Mr Webb advised that the overall floor area of 142 square metres did not constitute a large dwelling.
Mr Webb stated that the lot size accommodating the proposed new dwelling was 282 square metres of which about 76 square metres was utilised by the driveway. The effective lot area to accommodate the dwelling was therefore approximately 206 square metres. This area complies with the Codes requirement.
Mr Webb disagreed with Mr Bain's assertion that the rear site area was too small, on the grounds that the site has, in fact, been approved by the Western Australian Planning Commission as a strata lot.
On the issue of walls on the boundary, Mr Webb pointed out that the wall on the western boundary is actually a 1.8 metre high fence. It is not a parapet wall. Therefore, Mr Bain's assertion that the development exceeds the Codes requirement limiting the wall to be only on one side boundary is, according to Mr Webb, incorrect.
The proposed carport in the street setback area fits architecturally with the existing residence and is an open structure compliant with the Codes requirements.
Mr Webb rejected the assertion that the proposal constituted a large dwelling on a narrow lot, built from boundary to boundary and impacting on the amenity of the adjoining properties. He was of the opinion that the proposed development was compliant with the Codes provisions, TPS 1 and Policy 3.2.1.
Mr Webb also responded to the evidence of Cr Burns by suggesting that the bulk and scale of the proposed new residence is consistent with that of the immediately adjoining neighbour, and that by retaining and upgrading the existing residence at the front of the property, the existing streetscape will be maintained.
Mr Webb disagreed with Cr Burns' assertion that, in accordance with cl 6.4.2(vii) of Policy 3.2.1, an Amenity Impact Statement should be required. Because the proposed development did not seek more than one 'nil setback' to more than one property boundary, there was no need for an Amenity Impact Statement.
Mr Webb also disagreed with Cr Burns' opinion that the application should have been modified to reflect the Tribunal's previously imposed conditions. He was of the view that the application should be lodged in identical terms in order for the Tribunal to consider it as such and impose identical conditions.
Analysis
Mindful that this application for review is backgrounded by a previous and recent decision of the Tribunal, any present consideration should not need to readdress matters if they have already been properly dealt with in the context of that review.
On this basis, it is firstly necessary to establish whether or not the proposed development is substantially the same as that considered in the earlier review.
Secondly, it is necessary to establish whether there has been any significant change in the statutory or policy plans for the area to warrant revision of the appropriateness of the proposed development.
It does not appear to be contested that the plans submitted for the purpose of this review are the same as those considered by the Tribunal in its review of 2006. The plans are, in fact, the same, and they bear the same drawing reference no 2725 identified in the Tribunal's planning approval order dated 24 February 2006.
The respondent's witness has argued, nevertheless, that the proposed development should be treated as a new application, because it has not incorporated the modifications required by the conditions of the approval previously imposed by the Tribunal in 2006.
The point made by the witness for the respondent is acknowledged, but whether or not the relevant plans have been modified to reflect the previously imposed conditions is really immaterial to the intended physical outcome of the Tribunal's original decision. The plans may be conditionally approved, or subsequently approved as modified by the conditions. Either way, the outcome could be expected to be identical.
In the circumstances, the Tribunal does not accept that the proposed development should be treated as an application differing in substance from the previous application.
As to whether the statutory or policy context has changed, the respondent has drawn attention to the adoption of Policy 3.2.1 on 18 December 2007. The original application was not subject to this new policy.
The respondent has identified that cl 6.4.2(vii) of Policy 3.2.1 provides that 'two[‑]storey building boundary walls will generally not be supported, unless suitable justification is provided and an Amenity Impact Statement is submitted as part of the application for development'.
The Tribunal accepts that Policy 3.2.1 marginally alters the context of the application. Whether the alteration of context is of significance to the outcome of this review is of some doubt.
The previous review by the Tribunal thoroughly examined the impact on amenity occasioned by the proposed eastern boundary wall. The Tribunal concluded 'that the eastern boundary wall, if set off the boundary in order to retain the existing fence and vegetation, will have minimal impact on the adjoining property'. The Tribunal duly included a condition to its approval reflecting the requirement for a boundary offset.
In effect, the matter of amenity impact of the eastern wall has already been fully addressed and can again be resolved by means of a conditional approval requiring a boundary offset. The Tribunal therefore sees little advantage in revisiting this issue and pursuing further justification by requiring an Amenity Impact Statement.
The respondent has suggested that the proposed development also fails to comply with cl 6.1 of Policy 3.2.1 requiring development to harmonise with the streetscape and adjoining properties.
The Tribunal notes, however, that this planning objective, as expressed in the then prevailing Knutsford Locality Policy 3.3.18, was similarly part of the consideration of the earlier review. Following careful examination of the issues raised at the time, including questions of expectation of infill development and the existing character of the street, the Tribunal found that the proposed development would not significantly detract from the streetscape.
It does not appear that this circumstance has changed in any material sense.
Further argument was presented by the respondent in relation to the adequacy of the rear site area to accommodate the proposed new dwelling. It was suggested that the effective site area was only 188 square metres after subtraction of the area required for the driveway. The Codes dictate that the minimum lot area should be at least 200 square metres.
The applicants calculated that the driveway area is only 76 square metres, somewhat less than that estimated by the respondent. The overall approved strata lot area is 288 square metres. As a result, the effective rear lot area is 206 square metres.
The Tribunal notes that measurement from the submitted plans indicates that the driveway width is 3.5 metres with a length of 22.64 metres (including the 1 metre truncation). This calculates to a driveway area of 79.29 square metres. Subtracted from the overall lot area of 282 square metres, the balance effective lot area would be 202.71 square metres.
The Tribunal is satisfied that the effective building area is adequate and compliant with the Codes.
As the applicants have advised, the rear strata lot has, in any case, been approved and an entitlement to build a new dwelling thereon would appear to be mandated.
Whilst the respondent revisited and highlighted certain other issues, including the submissions of objection by adjoining property owners, the matters raised did not introduce new matters for consideration beyond those examined by the Tribunal at its earlier hearing.
In summation, the Tribunal finds no matters of substance arising from this review to vary from the Tribunal's previous conclusion of 2006.
Conditions
The respondent has submitted the following draft conditions of approval:
(a)all external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
(b)first obtaining the consent of the owners of Nos. 34 and 38 Paddington Street and No. 19 Clieveden Street for entry onto their land, the owners of the subject land shall finish and maintain the surface of the boundary (parapet) walls facing Nos. 34 and 38 Paddington Street and No. 19 Clieveden Street in a good and clean condition;
(c)prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating the following:
(1)stores for both the existing and proposed dwellings having a minimum internal area of 4 square metres with a minimum dimension of 1.5 metres;
(2)the height of the boundary fence being reduced to no greater than 1.8 metres above the natural ground level at any point; and
(3)the window to bedroom 2 on the eastern elevation on the upper floor being screened with a permanent obscure material and be non‑openable to a minimum of 1.6 metres above the finished upper floor level. A permanent obscure material does not include a self‑adhesive material or other material that is easily removed. The whole windows can be top hinged and the obscure portion of the windows openable to a maximum of 20 degrees; OR prior to the issue of a Building Licence[,] revised plans shall be submitted and approved demonstrating the subject windows not exceeding one square metre in aggregate in the respective subject walls, so that they are not considered to be major openings as defined in the Residential Design Codes. Alternatively, prior to the issue of a Building Licence, these revised plans are not required if the Town receives written consent from the owners of No. 34 Paddington Street stating no objection to the respective proposed privacy encroachments;
The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies;
(d)any new street/front wall, fence and gate within the Paddington Street setback area, including along the side boundaries within this street setback area, shall comply with the following:
(1)the maximum height being 1.8 metres above the adjacent footpath level;
(2)the maximum height of piers with decorative capping being 2.0 metres above the adjacent footpath level;
(3)the maximum height of the solid portion of the wall being 1.2 metres above the adjacent footpath level, and a minimum of fifty percent visually permeable above 1.2 metres;
(4)the piers having a maximum width of 355 millimetres and a maximum diameter of 500 millimetres;
(5)the distance between piers should not be less than the height of the piers except where pedestrian gates are proposed; and
(6)the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;
(e)the carport for the existing dwelling shall be one hundred (100) per cent open on all sides and at all times (open type gates/panels with a minimum visual permeability of eighty (80) per cent are permitted);
(f)a detailed landscaping plan, including a list of plants and the landscaping of the Paddington Street verge adjacent to the subject property, shall be submitted and approved prior to the issue of a Building Licence. The landscaping of the verge shall include details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months. The Council encourages landscaping methods which do not rely on reticulation. Where reticulation is not used, the alternative method should be described. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s); and
(g)prior to the issue of a Building Licence, the owner(s) shall enter into a legal agreement to the satisfaction of the Town, which is secured by a caveat on the Certificate(s) of Title of the subject land, prepared by the Town's solicitors or other solicitors agreed upon by the Town for the conservation of the existing dwelling located on the proposed southern lot/site. All costs associated with this condition shall be borne by the applicant/owner(s).
The applicants have expressed objection to draft conditions (b) and (e).
The applicants saw difficulty with condition (b), as the property owners identified in the draft condition have all lodged objections to this proposal.
It is noted that this condition was deleted by the Tribunal in 2006 based on the circumstance that the eastern wall would be offset from the boundary and that the northern and western walls are, in fact, dividing fences.
The applicants object to condition (e) because the carport in front of the existing dwelling is designed to only be open at the sides and front.
In its 2006 decision, the Tribunal accepted this concern and modified the condition.
In summary, all the draft conditions under consideration are either identical to or of similar intent to those considered in the Tribunal's previous deliberation. In the circumstances, there appears to be no reason to depart from the previous conclusion of the Tribunal as to the imposition of conditions of approval.
Conclusion
Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse to permit alterations to the existing dwelling and for construction of a new two‑storey dwelling at the rear of Lot 36 Paddington Street should be upheld. Accordingly, the decision of the respondent should be set aside and the proposed development should be conditionally approved on similar terms as ordered by the Tribunal in Hughan.
Orders
1.The application for review is allowed.
2.The decision of the respondent made on 16 December 2008 to refuse development approval for alterations and additions to an existing dwelling and construction of a two‑storey grouped dwelling at Lot 500 (No 36) Paddington Street, North Perth is set aside and a decision is substituted that approval is granted subject to the following conditions:
(1)The development must be carried out in accordance with the plans drawn by RM Davey & Associates entitled 'Proposed residence on strata lot 1/lot 500 (36) Paddington Street[,] North Perth', Drawing No 2725 dated 10/10/04 (and amended 1/05/05), except as varied by the following conditions:
(2)all external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, external hot water heaters, air conditioners and the like shall not be visible from the street(s), shall be designed integrally with the building and shall be located so as not to be visually obtrusive;
(3)the parapet wall located on the eastern boundary (common boundary with No 34 Paddington Street) shall be offset from the boundary to ensure the retention of the existing boundary fence and vegetation;
(4)prior to the issue of a building licence, revised plans shall be submitted and approved demonstrating the following:
(i)stores for both the existing and proposed dwellings having a minimum internal area of 4 square metres with a minimum dimension of 1.5 metres;
(ii)the height of the boundary fence being reduced to no greater than 1.8 metres above the natural ground level at any point; and
(iii)the window to bedroom 2 on the eastern elevation on the upper floor being screened with a permanent obscure material and being non‑openable to a minimum of 1.6 metres above the finished upper floor level. A permanent obscure material does not include a self‑adhesive material or other material that is easily removed. The whole windows can be top hinged and the obscure portion of the windows openable to a maximum of 20 degrees, or, prior to the issue of a building licence, revised plans shall be submitted and approved demonstrating the subject windows not exceeding 1 square metre in aggregate in the respective subject walls, so that they are not considered to be major openings as defined in the Residential Design Codes of Western Australia (2008). Alternatively, prior to the issue of a building licence, these revised plans are not required if the Town of Vincent receives written consent from the owners of No 34 Paddington Street stating no objection to the respective proposed privacy encroachments.
The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes of Western Australia (2008) and the Town of Vincent's Policies;
(5)any new street/front wall, fence and gate within the Paddington Street setback area, including along the side boundaries within this street setback area, shall comply with the following:
1)the maximum height being 1.8 metres above the adjacent footpath level;
2)the maximum height of piers with decorative capping being 2 metres above the adjacent footpath level;
3)the maximum height of the solid portion of the wall being 1.2 metres above the adjacent footpath level and a minimum of 50% visually permeable above 1.2 metres;
4)the piers having a maximum width of 355 millimetres and a maximum diameter of 500 millimetres;
5)the distance between piers being not less than the height of the piers except where pedestrian gates are proposed; and
6)the provision of a minimum 1.5 metre by 1.5 metre truncation where walls, fences and gates adjoin vehicle access points or where a driveway meets a public street or right of way; and a minimum 3 metre by 3 metre truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;
6.the carport for the existing dwelling shall at all times comply with the definition of carport as defined in the Residential Design Codes of Western Australia (2002);
7.a detailed landscaping plan, including a list of plants and the landscaping of the Paddington Street verge adjacent to the subject property, shall be submitted and approved prior to the issue of a building licence. The landscaping of the verge shall include details of the proposed watering system to ensure the establishment of species and their survival during the hot, dry summer months. The Council encourages landscaping methods which do not rely on reticulation. Where reticulation is not used, the alternative method should be described. All such works shall be undertaken prior to the first occupation of the development and maintained thereafter by the owner(s)/occupier(s); and
8.prior to the issue of a building licence, the owner(s) shall enter into a legal agreement to the satisfaction of the Town of Vincent, which is secured by a caveat on the Certificate(s) of Title of the subject land, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent for the conservation of the existing dwelling located on the proposed southern lot/site. All costs associated with this condition shall be borne by the applicant/owner(s).
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TRAN and TOWN OF VINCENT [2009] WASAT 123 (S)
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 JUNE 2009
SUPPLEMENTARY
DECISION :28 OCTOBER 2009
FILE NO/S: DR 519 of 2008
BETWEEN: THANG TONG TRAN
HUU TRI NGUYEN
ApplicantsAND
TOWN OF VINCENT
Respondent
Catchwords:
Costs - Town planning - Development application - Previous conditional approval given by Tribunal to residential additions and alterations - Approval lapsed - New approval sought on identical plans - No material change in circumstances between old and new applications - Tribunal giving same conditional approval again - Respondent Town on notice regarding costs Town declining to give approval on invitation to reconsider - Town contesting matter in Tribunal - Whether respondent genuinely attempted to make decision on merits - Whether Town's conduct reasonable - Need for consistency in public sector decisionmaking - Need to avoid rearguing cases where there are no material changes in circumstances - Applicant put to unnecessary expense - Costs application successful - Costs awarded to applicant - Quantum of costs discussed - Need for restraint in costs awards in Tribunal
Legislation:
State Administrative Tribunal Act 2004 (WA)
Result:
The Tribunal determined that costs should be allowed in the applicants' favour
Category: B
Representation:
Counsel:
Applicants: Mr PD Webb (Acting as Agent)
Respondent: Mr R Rasiah (Acting as Agent)
Solicitors:
Applicants: Peter D Webb & Associates (Town Planners)
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98
Hughan and Town of Vincent [2006] WASAT 48
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The issue for resolution in this application was whether costs should be awarded against a local government authority where that authority refused to give development approval and, in effect, forced an applicant to a second review in a case where the Tribunal had previously given conditional approval (with detailed reasons) for a development which was identical to the 'new' development, in circumstances that had not materially altered since the first review.
The Tribunal determined that costs should be allowed in the applicants' favour in such a case.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
First proceedings
On 24 February 2006 reasons were delivered in Hughan and Town of Vincent [2006] WASAT 48. Member M Connor allowed the review and gave conditional approval in relation to the development of land at No 36 Paddington Street North, Perth (subject land).
In short, the Tribunal found that certain additions and alterations proposed for the subject land were not inconsistent with the intent of the Town of Vincent's then relevant local Policy No: 3.3.18 justifying a higher RCoding, and were otherwise acceptable in terms of applicable planning standards.
The development did not proceed and the approval lapsed.
The respondent Town of Vincent (respondent or Town) in its original decision from 2005 offered four short reasons for its refusal. These are reproduced in the second review Tran and Town of Vincent [2009] WASAT 123, at [34], and it is unnecessary to repeat them here.
Essential facts
In October 2008 the new owners, Mr and Mrs Tran (applicants), sought to develop the land to the same extent as previously approved. The applicants' representative, Mr Webb, said that the proposal was 'identical' to the 2005 proposal. Thus, the same builder's plans were before the decisionmaker (that is, the respondent) and the Tribunal.
This development proposal was refused by the (respondent or Town) in December 2008, over the recommendation of its officers, for six reasons, reasons which broadly follow the previous reasons for rejection from 2005. Again, these are set out in the second review, at [37], and it is unnecessary to repeat them.
Ms Connor, who was by now well familiar with the subject land, attempted mediation between the parties in January 2009. Importantly, reconsideration was also ordered by the Tribunal as part of that process. The respondent declined the invitation to alter its position.
Of considerable importance is that, in February 2009, the applicants' representative, Mr Webb, placed the Town on notice by letter that costs would be sought if the reconsideration did not result in, in effect, the 'reinstatement' of the earlier decision, given the Tribunal's previous decision and that circumstances had not relevantly altered.
The tenor of the communications was that the applicants were very likely to succeed before the Tribunal because of the need for consistency in administrative decisionmaking; that there had been no material alteration of circumstances; and that the Town was therefore causing the applicants unnecessary detriment in having the Tribunal once again conduct a review in the same circumstances.
It is likely that, at one or more points, Tribunal members in directions or other dealings broadly raised the same or similar issues. See, for example, Mr Webb's letter dated 3 February 2009, at [5].
Unsurprisingly, in June 2009 Senior Sessional Member J Adderley allowed the second review noting that the issues 'were generally the same' as those from 2006: see, Tran and Town of Vincent [2009] WASAT 123 (second decision).
This outcome was despite the fact that the RCodes and the relevant design elements policy had changed, at least on a formal level.
An elected official of the respondent (Councillor Burns) addressed the alleged changes between 2005 and 2008 and these are summarised at [47] to [52] of the second decision. Councillor Burns noted that the previous conditional approval was not reflected in the 'new' plans filed with the respondent (the view being that the plans should have been amended to reflect the conditional approval) and that there was, in her opinion, a 'new' application. Presumably, the corollary of this view was that minimal weight (if any) should be given to the prior approval by the Tribunal.
However, at [71], the Tribunal found the proposal was in substance the same as the previous application. Further, at [74], the Tribunal found that the new local policy only 'marginally alter[ed] the context' of the review.
The Tribunal in its second review expressly found that the new review 'did not introduce new matters for consideration beyond those [previously] examined'.
In the result, conditional approval was given on the same terms as the first review.
Amount of costs sought
Mr Webb sought costs in the sum of $8,654 including taxes and disbursements, as shown on copies of various invoices in respect of his professional services, as were supplied to both the respondent and the Tribunal.
The respondent has objected to the total amount sought pointing out the Tribunal's previously stated views in J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S), at [38], that:
In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable.
I will return to this matter below.
Submissions of the parties
I have had regard to the submissions of both parties which were filed in the matter: the applicants' dated 29 June 2009 and the respondent's in reply dated 17 July 2009. These submissions were filed pursuant to, or in contemplation of, the orders of the Tribunal of 2 July 2009.
The applicants' submissions are based upon the various matters (particularly their agent's letter of February 2009) to which I have already referred, as justifying an award of costs.
The respondent contended in reply that it had genuinely attempted to make the second decision on its merits, and that it had not impeded the Tribunal in any way in its reconsideration of the matter. Further, the reassessment (that is, the second decision by the Town) was undertaken in the light of the receipt of five neighbours' objections on amenity grounds.
In addition, the Town reiterated its concerns about bulk and scale; that the relevant performance criteria had not been satisfactorily addressed by the applicants; that the previous conditions that had been imposed by the Tribunal had not been alluded to by the applicants; and that the Town's policies had changed.
The Town submitted that its position throughout had not been 'arbitrarily formed' and that there had in fact been a careful assessment of all of the factors relevant to the case.
The Town also submitted that the 'Town should not be held accountable [that is, in effect, suffer any adverse result itself] arising out of 'the applicants['] delay in not acting on the former approval'.
Costs principles
Successful costs applications in the Tribunal are a 'rare bird' indeed.
Recently, Senior Member D Parry wrote in relation to an unsuccessful claim for costs, in Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98, as follows:
14.Section 87(1) of the [State Administrative Tribunal Act 2004 (WA), SAT Act] states that:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
15.The contemplation of the SAT Act is, therefore, that the Tribunal is generally a no-costs jurisdiction.
16. Furthermore, although s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, the Tribunal's established practice in administrative review proceedings is that normally each party should bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 (Shark Bay Tuna Farms). As Justice Barker explained in Shark Bay Tuna Farms at [36], the Tribunal was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. Consequently, an applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the respondent's costs if the applicant does not succeed and, conversely, an applicant is not entitled to an award of costs simply because the applicant succeeds.
17.Only four awards of costs have been made in planning review proceedings since the establishment of the Tribunal almost four and a half years ago. Two of these awards were in relation to the limited costs of attending directions hearings necessitated by default in compliance with Tribunal orders (Randall and Town of Vincent [2005] WASAT 147 and Aydogan and Town of Cambridge [2006] WASAT 98) and two awards were made in circumstances where the original decision-maker failed to genuinely attempt to make a decision on the merits of a development application (Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S) and J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242 [and see [2006] WASAT 282 (S)]). In relation to the latter two awards, s 87(4)(b) of the SAT Act states that, without limiting anything else that may be considered in relation to whether to make an order for the payment by a party of the costs of another party, where the matter falls within the Tribunal's review jurisdiction, the Tribunal is required to have regard to:
whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 the Tribunal said (emphasis added):
50.Clause 3.13.1 and cl 7.2.4 of the [Town Planning] Scheme clearly set out the matters that the Council is required to take into consideration in the exercise of its discretion. Community opposition cannot of itself be a determinative matter, it is but one of many considerations that are relevant in the determination of an application. To elevate this consideration to the sole criterion is an error. The Tribunal is of the view that the respondent has failed to give proper, genuine and realistic consideration to the substantial merits of the particular case before it, which is contrary to the general proposition of law in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522.
…
75.The Tribunal finds, for the reasons outlined above at [50], that the respondent failed to genuinely attempt to make the decision on its merits, and considers it appropriate that an order for costs be made in favour of the applicant. The Tribunal is unable to determine the quantum of costs at this time as a breakdown of the applicant's cost in preparing for the proceedings has not been provided. The Tribunal determines that the respondent should pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review. The amount to be paid is to be agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).
The relevant principles for costs are set out in State Administrative Tribunal (WA) Law, Practice and Procedure (Michael Hardy (ed), Presidian Legal Publications, 2008) at [2 2669] and following at 80 89. The learned authors write, at [2 2669] (emphasis added):
The approach taken by the Tribunal to the award of costs in its review jurisdiction is that there must be some exceptional reason for ordering that one party must pay the costs of another. Usually, an exceptional reason will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect so that the other party has been put to unnecessary expense. If there is no such unreasonable conduct, costs will not generally be awarded.
I have also had regard to the specific authorities summarised in the planning area, which appear at [2 - 2864] and following at 85 86 of that reference work.
Of some particular importance here is the Tribunal's decision in Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S). There, the Tribunal found as follows:
24.It is difficult to see … how this [development] application could have been considered on its merits. There is no detail given as to its non-compliance in the respondent's reasons for decision, and on any assessment it would appear that this component of the site accords both with the development standards and planning objectives of CPS 5 [the relevant Town Planning Scheme] …
26.It appears to me that the respondent failed to make a determination on the merits in relation to the single residence, by appearing to refuse the application largely because of the size of the lot, without looking at the detail of the design itself. This appears clear from the resolution made by the council, expressing its dissatisfaction with the [Western Australian Planning] Commission's approval of the subdivision.
27.The applications do not offend the prescriptive, technical development standards of CPS 5 and the [R-]Codes. In relation to those subjective or qualitative elements, CPS 5 provides no guidance as to appropriate forms of development in this heritage area, and at the hearing, the respondent's witness was more concerned about works approved under previous applications which were not before the Tribunal. In terms of the qualitative elements of the proposed design, the Heritage Council had given their approval.
28.For these reasons, I am of the view that the respondent failed to genuinely attempt to make the decision on its merits, and therefore costs should be awarded.
In this matter, there is in my view conduct on the part of the Town which can be objectively considered relevantly 'unreasonable' (as that expression emerges from the authorities referred to above) warranting a costs award in the applicants' favour.
Although I do not doubt for one moment that the respondent's actions were undertaken other than in good faith it is important for the process of orderly public sector decisionmaking that original decisionmakers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.
Here, the respondent Town was put expressly on notice of the possible consequences of its actions by both the Tribunal and the applicants, and passed up the opportunity to change its position in the reconsideration process. It ought to have reasonably known that the chance of a successful review in the applicants' favour in such circumstances was very high indeed. Every conceivable indication was given that that was so. It was unreasonable to ignore these signals.
In my respectful opinion, a genuine attempt to assess the matter on its merits would have avoided a second review.
Costs should therefore be awarded to the applicants.
Amount of costs
In Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302, at [67], the Tribunal said: '… the award of costs is not intended to be a full indemnity for the actual expenses incurred by a party'. See also, on the general need for restraint in costs awards, J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S).
Here, the amount of costs sought is, with respect, excessive for a relatively straightforward matter determined wholly on the documents, even allowing for the various attendances arising from mediation and reconsideration. After all, a lot of the 'heavy lifting' had already been done in the 2006 review.
In the exercise of its discretion, and based upon its experience in such matters the Tribunal will fix the amount of costs payable to the applicants by the respondent as $3,500. This is the result of the consideration of such matters as 'the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case': see Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S) on the identification of these relevant costs factors.
Orders
For all of these reasons, the application for costs will be allowed. The Tribunal makes the following orders:
1.The application for costs is allowed.
2.The respondent is to pay to the applicants the sum of $3,500 in respect of their costs within 21 days of the date of these orders.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
21
11
4