WALTON & ANOR and TOWN OF VINCENT

[2005] WASAT 324

WALTON & ANOR and TOWN OF VINCENT [2005] WASAT 324

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 324
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:320/2004	Heard:	17 NOVEMBER 2005
Coram:	MR P McNAB (MEMBER)	Delivered:	9/12/05
No of pages:	13	Judgment Part:	1 of 1
Result:	1.   Review proceedings RD320/2004 and CC/41741/2004 in this Tribunal are to be consolidated and heard together, with effect from 7 July 2005 2.   At the request of both parties made on 7 July 2005, the consolidated review in the Tribunal of the decisions relating to the two Notices originally under review is to be treated for all purposes as a review of whether planning approval should be given to the works (as now modified, or as were proposed to be modified) and, by consent, leave is granted for the applications for review to be amended so as to permit that course to be taken 3.   The consolidated application for review as amended is allowed 4.   The decisions to issue the Notices under review are set aside and in substitution thereof there will be a decision granting planning approval for the modified works on such conditions as are reasonable and appropriate, to be approved by the Tribunal 5.   The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions relating to the modified works, being conditions not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent as a minute of consent orders as to conditions within 28 days of the date of this decision 6.   Leave is granted for the parties to apply to the Tribunal at any time for directions concerning any issue arising out of the making of these Orders
Category:	B
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Parties:	ANTHONY WALTON CHRISTINE RAINBIRD TOWN OF VINCENT
Catchwords:	Town planning – Review of statutory notices requiring works in the nature of fence, timber slats and a gate to be removed from front of dwelling-house – Consolidated hearing with consideration of an approval for modified works proposal – Works erected in good faith – Modified works consistent with general aim of but not detail of street walls and fences policies – Tribunal exercised discretion to depart from strict application of local fences policy – Observations on the exceptionalness of this course – Circumstances justifying departure – Subject land with substantial fall across the front of the property – Private open space in front setback – Consistency with existing streetscape – Some visual permeability and lack of bulk aimed at in modified design – Application for review allowed
Legislation:	Local Government Provision Act 1960 (WA), s 401(1)(c) Town of Vincent Town Planning Scheme No 1, cl 32, cl 33, cl 34, cl 47 Town Planning and Development Act 1928 (WA), s 10(3) Residential Design Codes of Western Australian 2002, cl 3.25, cl 2.6.1, cl 2.6.2
Case References:	Tooth and the City of Subiaco [2005] WATSAT 317 Trickey and the City of Subiaco [2005] WATSAT 256 Nil
Orders	1.   Review proceedings DR 320 of 2004 and CC 41741 of 2004 in this Tribunal are to be consolidated and heard together, with effect from 7 July 2005.,2.   At the request of both parties made on 7 July 2005, the consolidated review in the Tribunal of the decisions relating to the two Notices originally under review is to be treated for all purposes as a review of whether planning approval should be given to the works (as now modified, or as were proposed to be modified) and, by consent, leave is granted for the applications for review to be amended so as to permit that course to be taken.,3.   The consolidated application for review as amended is allowed.,4.   The decisions to issue the Notices under review are set aside and in substitution thereof, there will be a decision granting planning approval for the modified works on such conditions as are reasonable and appropriate, to be approved by the Tribunal.,5.   The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions relating to the modified works, being conditions not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent as a minute of consent orders as to conditions within 28 days of the date of this decision.,6.   Leave is granted for the parties to apply to the Tribunal at any time for directions concerning any issue arising out of the making of these Orders.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WALTON & ANOR and TOWN OF VINCENT [2005] WASAT 324 MEMBER : MR P McNAB (MEMBER) HEARD : 17 NOVEMBER 2005 DELIVERED : Edited reasons delivered extemporaneously on 9 DECEMBER 2005 FILE NO/S : DR 320 of 2004 BETWEEN : ANTHONY WALTON

CHRISTINE RAINBIRD
Applicants

AND

TOWN OF VINCENT
Respondent

Catchwords:

Town planning – Review of statutory notices requiring works in the nature of fence, timber slats and a gate to be removed from front of dwelling-house – Consolidated hearing with consideration of an approval for modified works proposal – Works erected in good faith – Modified works consistent with general aim of but not detail of street walls and fences policies – Tribunal exercised discretion to depart from strict application of local fences policy – Observations on the exceptionalness of this course – Circumstances justifying departure – Subject land with substantial fall across the front of the property –

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Private open space in front setback – Consistency with existing streetscape – Some visual permeability and lack of bulk aimed at in modified design – Application for review allowed

Legislation:

Local Government Provision Act 1960 (WA), s 401(1)(c)

Town of Vincent Town Planning Scheme No 1, cl 32, cl 33, cl 34, cl 47
Town Planning and Development Act 1928 (WA), s 10(3)
Residential Design Codes of Western Australian 2002, cl 3.25, cl 2.6.1, cl 2.6.2

Result:

1. Review proceedings RD320/2004 and CC/41741/2004 in this Tribunal are to be consolidated and heard together, with effect from 7 July 2005

2. At the request of both parties made on 7 July 2005, the consolidated review in the Tribunal of the decisions relating to the two Notices originally under review is to be treated for all purposes as a review of whether planning approval should be given to the works (as now modified, or as were proposed to be modified) and, by consent, leave is granted for the applications for review to be amended so as to permit that course to be taken
3. The consolidated application for review as amended is allowed
4. The decisions to issue the Notices under review are set aside and in substitution thereof there will be a decision granting planning approval for the modified works on such conditions as are reasonable and appropriate, to be approved by the Tribunal
5. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions relating to the modified works, being conditions not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent as a minute of consent orders as to conditions within 28 days of the date of this decision
6. Leave is granted for the parties to apply to the Tribunal at any time for directions concerning any issue arising out of the making of these Orders

Category: B

Representation:

Counsel:

Applicants : N/A
Respondent : N/A

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Solicitors:

Applicants : N/A
Respondent : N/A

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

Tooth and the City of Subiaco [2005] WATSAT 317
Trickey and the City of Subiaco [2005] WATSAT 256

Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicants here sought a review of a decision by a local government authority (the Town of Vincent) directing them to tear down an existing wooden and steel fence structure at the front of their modern property in North Perth.

2 The parties agreed for the Tribunal to determine the review by considering a modified proposal put forward by the applicants arising out of mediation in the Tribunal. (That modified proposal had been rejected by the Town.)

3 The Town had in place a well thought out written policy, applicable to the applicants' precinct, which dealt with walls and fences, and was aimed at protecting the existing streetscape and requiring visual permeability and "openness", as far as practicable. The Town argued that the modified proposal did not comply with the policy.

4 The Tribunal agreed with the Town but held that there were, in effect, special circumstances warranting departure from the strict application of the policy. These circumstances included the nature of the modified works (that is, the works aimed for some measure of visual permeability and reduction in bulk), their substantial harmony with the existing streetscape, the erection of the works in good faith, the special nature of the land's topography and the position of the land in relation to the road fronting the property.

5 The application for a review was successful.

Introduction: the subject land

6 The applicants are the registered proprietors of No 77A Eton Street, North Perth (lot 185 or lot 1 on strata plan 40920), being the whole of the land comprised in Certificate of Title Vol 2514 Fol 649 (the subject land) in the Town of Vincent (the Town). The subject land is the front two storey residence of a modern grouped dwelling comprising three residences.

7 On or about 18 November 2004, the applicants received a Notice issued by the Town (the respondent in these proceedings) purporting to be a written direction under s 10(3) of the Town Planning and Development Act 1928 (WA) notifying them that certain works (namely the construction of certain timber infill slats, steel framed screens and gates)

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"[had] been constructed abutting the existing approved masonry fence [that is, a retaining wall]", facing Eton Street, in contravention of the Town's Town Planning Scheme No 1 (TPS 1). Planning approval had not been given for these works and the Notice required the works to be removed.

8 At the same time, a similar Notice was given under s 401(1)(c) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) in respect of the works being unauthorised building works.

9 The applicants had purchased the land in October 2004 based upon certain assurances from the vendor, to the effect that the strata company and the Town had approved of the works. As far back as 2002, the strata company had given its approval but the Town had never given planning approval. In fact, the works would appear to be inconsistent with a condition of the approval for the establishment of the grouped dwellings given in 1998 (see further below).

The proceedings in the Tribunal

10 On 24 December 2004, the applicants sought a review of the decisions to issue these Notices in the former Town Planning Appeal Tribunal. That review has devolved upon this Tribunal. After directions hearings, mediation and reconsideration by the respondent, the matter was finally heard in July 2005.

11 The Tribunal is also effectively seised of an application for a review of the rejection by the respondent for planning approval of a modified proposal for the works as, during the hearing, both parties requested and consented to the review proceeding upon that basis. See the Orders of the Tribunal set out below.

12 Thus, it is common ground that the matter under review, which relevantly determines all issues between the parties, is whether this "modified proposal" (see below for an explanation of what constitutes the modified proposal) should be given approval, whether on conditions or not, under cl 34 of TPS 1. An affirmative answer to that question leads to a consequential decision to set aside the decisions to issue the Notices that were initially under review.

Planning framework

13 It is also common ground that:

• the land is zoned R 20 under TPS 1;

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• that under cl 32 of that Scheme planning approval should have been sought and obtained before the works were commenced, and that no such approval was either sought or obtained;

• that the works do not fall into the category of works for which an exemption from the need to obtain planning approval operates because of cl 33 of TPS 1 (for example works of a "minor nature" as are there in that clause, and under a corresponding written policy [3.2.1]);

• notwithstanding cl 32, retrospective approval for planning approval may be granted to some extent under cl 34 of TPS 1.

14 As mentioned, there was a requirement for "open infill fencing" imposed as a condition upon the development in 1998. This condition – which is set out below in more detail – has, in effect, evolved into a written policy, namely the "Policy Relating to Street Walls and Fences" (Policy 3.2.5, made in 2001) (the policy), which is authorised by or consistent with, as the case may be, cl 47 of TPS 1 ("Planning Policy") and the 2002 Residential Design Codes (Codes): see cl 3.2.5, and par A5 dealing with the performance criteria and acceptable development for street walls and fences). See also par 2.6.1 and par 2.6.2 of the Codes, which deals with the interrelationship between local planning policies and the Codes.

15 The policy is a thoughtful, well written document which has the stated aim, consistent with the Codes, of preventing high solid walls from dominating the streetscape, favouring instead the more traditional low and relatively open fence or wall which, it is said, encourages an "easy and comfortable interaction between occupiers and passersby" and addresses security concerns (including dissuading the proliferation of graffiti). The policy provides general guidance on how these aims might be achieved in terms of design principles, and by the provision of certain specifications (for example, fixing maximum heights; and transparency, or visual permeability, ratios).

16 Relevantly, there must be a 50% transparency after 1.2 metres in height, with a maximum height of 1.8 metres (extended to 2 metres with decorative capping) in respect of any relevant fence or wall. Further, the policy refers to the "Eton Street Locality" (Policy 3.3.7) with its references to "consistency of local character".

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17 The policy, consistent with the Codes, recognises that compromises might need to be made in some cases where privacy is required for outdoor living areas in the front setback where no alternative exists. The subject land does have an outdoor living area in the front setback area.

18 The interpretation and application of the policy is central to this review, and aspects of it will be returned to below when considering the applicants' case.

The proposal and the history of development applications

19 The respondent refused planning approval for the works (with wall heights ranging from 2.25 metres to 3.25 metres) in February 2005. Following mediation in this Tribunal, a further modified proposal with reduced wall heights (1.75 metres to 2.33 metres) and reduced bulk (by the inclusion of four open wall panels, with "dense foliage" in the background) was also rejected by the respondent in April 2005.

20 The modified proposal and its surrounds may be described as follows. (For convenience of reference and identification, this description mostly comes from Plan 3 "Revised Fence Plan Rejected by the Council" on Ex 6.)

21 The proposed fence is made of timber ("timber infill slats [with spaces between of approximately 5 millimetres to 10 millimetres] to steel framed fence and gates to match fixed screens") commencing on the northern side of the street frontage with a height of 1.75 metres down to the footpath, thereafter following a gentle, but marked slope down towards the southern side, thus "requiring" a height of 2.33 metres at the far (southern) end. The fall of levels across the street frontage is just over 2 metres. The fence extends across a substantial part of the street frontage, not including the crossover width. A two door, full length gate is the centrepiece. The southern side, from the middle gate, is stepped down by less than approximately 500 millimetres (in two adjoining pieces). The existing masonry retaining wall standing behind the fence (representing at fill level the courtyard ground level) is approximately just under 25% of the bulk (that is, to the fill level) at the northern side; 50% in the middle (in relation to the gate, with stairs behind to the courtyard ground [that is, fill] level) and 75% at the stepped down southern end.

22 The respondent estimates that the upper portion of the wall is only approximately 10% visually permeable. Presumably, this is some estimated average figure taking into account the proposed four large

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foliage cut outs on the northern section of the fence which each forms part of the modified works.

23 The courtyard ground area on the northern side is an outdoor living/patio area with some existing low level screening vegetation on two narrow landscaping strips.

24 The Tribunal had the considerable benefit of a daylight view of the subject land and immediate locality in the presence of the parties. Some brief additional evidence was received on site, namely the position of the subject land as sited downwards of a slight crest and kink in the road whereby some minor light spill from passing cars at night was said to have been visible.

Respondent's case

25 The respondent argues that the works are in breach of a condition imposed upon the approval given in July 1998 for the creation of three grouped dwellings on the land. Lot 1 (No 77A) was one of these grouped dwellings. The relevant condition required that the front fence and retaining wall (which is the basis for the works) "shall remain open infill fencing". As is mentioned above, such a type of condition has effectively evolved into a requirement expressed now in a written policy. Thus, it is said that the modified proposal would be contrary to that policy.

26 Mr Meggitt's evidence was that:

• a wide range of generally open fence styles characterise Eton Street (he produced photographs of No's 109, 113, 81, 83, 31 illustrating this point);

• the policy (and, so far as is relevant, the corresponding provisions of the Codes) required a fit with existing designs and streetscape;

• the modified proposal would not so fit because of excessive height, insufficient visual permeability and a departure from the pattern of existing fences in the vicinity which were characterised by low open fences or metal railings sometimes with landscaping; and

• other examples were available – he cited No 83 Eton Street – whereby front outdoor living areas were developed using open fencing and landscaping.

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27 Crucially, Mr Meggitt said (at par 44):

"The majority of properties in the Locality are characterised by open front gardens with reticulated lawns and shrubs, garden sculptures and water features. Where there are examples of high solid walls that were built before the Town's policy came into effect it highlights the need for the Town to be vigilant and prevent any further appearances of these structures."

Applicants' case in reply

28 The background to the purchase of the subject land by the applicants and the development history is common ground between the parties, and is set out the introduction to these reasons above.

29 The applicants called Mr MJ Dryka, who is a qualified, practising and experienced architect. His evidence may be summarised as follows:

• There are a number of other fences in the vicinity of the subject land that do not comply with the policy (he produced a photograph of the house directly opposite the subject land, and other photographs of the streetscape).

• The fence is required for privacy and safety (the applicants' children having being affected by intoxicated patrons returning from a nearby hotel, a matter referred to by the applicants in a statement filed by them).

• The policy itself (and the Codes) contemplate special circumstances whereby screening might be permitted to protect privacy in respect of a private open space in a front setback area.

30 Mr Dryka also argued that the approved site drawing plans forming part of the building licence showed certain original survey spots which led him to calculate the natural ground level at the RL level, namely the "Reduced Level at Australian Height Datum" for the purposes of showing that the proposed fences did not exceed the Town's maximum heights. The calculation was in reference to the courtyard level.

31 It is unnecessary to consider this matter any further, and in particular, whether the policy operates on this "new" natural ground level (if that is what it is) by reason of the principal findings made and the conclusions reached in this matter. However, on the face of it, it seems probable that the policy was intended to operate by reference to the external appearance

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of fences measured from, in this case, the footpath level. This is a matter that need not be finally resolved in this review.

Application of the policy

32 Recent decisions of this Tribunal, see for example Trickey and the City of Subiaco [2005] WATSAT 256 and Tooth and the City of Subiaco [2005] WATSAT 317, show that a policy applied to "hold the line" is an acceptable regulatory approach. Thus, the fact that other contrary examples might be produced to undermine the effect of the policy (for example, other houses in Eton Street which are non-conforming) does not mean that the policy has no further work to do. At the very least what is left of the streetscape might be worth preserving: The horse "has not bolted" here.

33 In the ordinary course, consistency of decision-making by local authorities and on review by this Tribunal requires or is achieved by adherence to lawful policies. Of course, the Tribunal must not shut its mind to any sound, valid and cogent argument for departure from a policy in a particular case. But this flexibility has its limits. In Tooth and the City of Subiaco, this Tribunal dealt with this point as follows (at [54] – [55]:

"In Weir, R and Anor v the Western Australian Planning Commission [2003] WATPAT 66 the former Tribunal said (at [17] - [18], emphasis added):

'The Tribunal has previously indicated in dismissing a similar appeal (DK & MF Cooper v Western Australian Planning Commission (2002) TPAT 14 Nos 18 & 85 of 2001, [sic] that "While precedent cannot be a final determent [sic, determinant] in any case, the effect of allowing this appeal would be to set at nought the intentions of Council in response to what it perceives as the general community interest." That conclusion holds good in this appeal [original emphasis].

The R Codes and current WAPC policy provide a degree of flexibility to allow a variation to the standards prescribed in the Codes. In my view that flexibility does not extend to a variation in standards that would amount to an abandonment of those standards. The WAPC (and the Tribunal) should not accede to a proposal that would effectively ignore standards that have been developed through thoughtful and well-reasoned research and community involvement … '

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Although that case was dealing with the Western Australian Planning Commission, densities and a sub-division, these statements of planning principle have direct application here."

34 Likewise, in respect of this review.

35 Having said and recognised all of this, the Tribunal here however, does accept that the applicants have made out their case to the extent that some departure from the policy is warranted in the particular circumstances of the case. The exceptionalness of this perhaps needs to be emphasised.

36 The reasons for this result may be shortly stated.

37 First, the applicants have acted throughout these proceedings and their dealings with the Town in substantial good faith, displaying a willingness to correct a situation that they in effect inherited from a previous owner who they say misled them. There is no evidence as regards that previous owner which is available to the Tribunal to suggest that this is other than the case. In the Tribunal's view, this matter, although not determinative, could not be said to be irrelevant to the exercise of any discretion that a decision-maker (including this Tribunal) has.

38 Secondly, the applicants have already significantly and sensibly compromised their original plans with the intent of achieving the main aim of the policy: to reflect as far as practicable an "open" frontage.

39 Next, they have a slightly unusual situation at this geographical point on Eton Street, in terms of the significant fall across the frontage; the retaining wall (relatively high at one end); the outdoor living area in the front setback area (a factor itself recognised in both the policy and the Codes); and the position of the residence as a whole in relation to such matters as the rise and fall of and the bend in the angle of Eton Road.

40 Finally, there is the appearance and design of the modified proposal. Having inspected it, it does not strike the Tribunal as significantly out of character with either the existing residence, the immediately neighbouring properties or for that matter the existing streetscape. In particular, a passer-by is not met with a high, solid, uniform and bulky façade; rather the modified works achieve some openness, particularly so given the height of the fill level (that is, the courtyard area)/retaining wall standing immediately behind it, and the current or proposed vegetation.

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Conclusion

41 In all of the circumstances, the correct and preferable decision is to allow the amended review, to approve the modified proposal on certain conditions to be agreed upon, and consequentially to set aside the decisions to issue the Notices requiring the fence and associated works to be removed.

42 The effect of the Orders that the Tribunal has made will require the parties to negotiate in good faith concerning the imposition of any reasonable conditions on the approval, a course rendered necessary because of the way in which the hearing unfolded.

Orders

1. Review proceedings DR 320 of 2004 and CC 41741 of 2004 in this Tribunal are to be consolidated and heard together, with effect from 7 July 2005.

2. At the request of both parties made on 7 July 2005, the consolidated review in the Tribunal of the decisions relating to the two Notices originally under review is to be treated for all purposes as a review of whether planning approval should be given to the works (as now modified, or as were proposed to be modified) and, by consent, leave is granted for the applications for review to be amended so as to permit that course to be taken.

3. The consolidated application for review as amended is allowed.

4. The decisions to issue the Notices under review are set aside and in substitution thereof, there will be a decision granting planning approval for the modified works on such conditions as are reasonable and appropriate, to be approved by the Tribunal.

5. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions relating to the modified works, being conditions not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent as a minute of consent orders as to conditions within 28 days of the date of this decision.

6. Leave is granted for the parties to apply to the Tribunal at any time for directions concerning any issue arising out of the making of these Orders.

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I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.







___________________________________

MR P McNAB, MEMBER