WALTON & ANOR and TOWN OF VINCENT

The case of Walton & Ano. and Town of Vincent involved a dispute regarding statutory notices requiring the removal of certain works from the front of a dwelling house. The Town of Vincent had issued notices to the Waltons, asserting that fence, timber slats, and a gate needed to be removed as they did not comply with local street wall and fences policies. The Waltons sought a review of these notices in the Tribunal, which was consolidated with a consideration of an approval for a modified works proposal. The Waltons had erected the works in good faith, and the modified works aimed to achieve some visual permeability and reduce bulk, consistent with the general aim of the street walls and fences policies.

The primary legal issues before the court were whether the Tribunal had the authority to exercise its discretion to depart from the strict application of the local fences policy and whether the circumstances justified such a departure. The Waltons argued that the subject land had a substantial fall across the front of the property, creating a private open space in the front setback. They also contended that the modified design was consistent with the existing streetscape and aimed at achieving some visual permeability and lack of bulk.

In reaching its decision, the court acknowledged the exceptional nature of exercising discretion to depart from the strict application of local fences policy. The court found that the circumstances in this case justified such a departure due to the unique characteristics of the subject land and the modified design's consistency with the existing streetscape. Consequently, the Tribunal allowed the consolidated application for review, set aside the decisions to issue the notices under review, and granted planning approval for the modified works on reasonable and appropriate conditions. The parties were directed to negotiate in good faith to produce a set of conditions to be filed as a minute of consent orders within 28 days of the date of the decision.