West and City Of South Perth
[2017] WASAT 60
•12 APRIL 2017
WEST and CITY OF SOUTH PERTH [2017] WASAT 60
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 60 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:197/2016 | 28 OCTOBER 2016 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER) | 12/04/17 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Decision under review affirmed in some respects, varied in other respects and otherwise set aside | ||
| B | |||
| PDF Version |
| Parties: | OWEN GREGORY WEST JUDITH MARGARET WEST CITY OF SOUTH PERTH |
Catchwords: | Planning and Development Act 2005 (WA) Review of decision to issue direction under s 214 Whether direction invalid Whether development carried out other than in accordance with Town Planning Scheme or conditions imposed by responsible authority Exercise of discretion to set aside, affirm or vary decision under review |
Legislation: | Building Regulations 2012 (WA) City of South Perth Town Planning Scheme No 6, cl 4.1(3), cl 5.3.7, cl 6.7(2), cl 6.10(3), cl 6.10(3)(a), cl 7.1, cl 7.2, cl 7.5, cl 7.12 Licensed Surveyors (General Surveying Practice) Regulations 1961 (WA), reg 25A(1) Licensed Surveyors Act 1909 (WA), s 3 Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61, cl 61(1)(d) Planning and Development Act 2005 (WA), s 214, s 214(3), s 255(1) |
Case References: | Carbone and City of Wanneroo [2011] WASAT 27 Dermer & Anor v the Shire of Busselton & Ors [2002] WASC 15 Drake and City of South Perth & Anor [2005] WASAT 271 Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101 Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33 Johnston and Town of East Fremantle [2011] WASAT 139 Kuligowski and Director General of Transport [2011] WASAT 126 Singleton and Town of Port Hedland [2007] WASAT 188 |
Orders | 1. The direction issued by the respondent to the applicants on 31 May 2016 pursuant to s 214 of the Planning and Development Act 2005 (WA) is:,(a) affirmed by requiring the applicants to reduce the heights of the fences on the eastern and southern boundaries to achieve a height no higher than the approved level in respect of the eastern boundary and 1.8 metres in respect of the southern boundary;,(b) affirmed by requiring the applicants to finish the external face of the eastern boundary in a cream colour to the satisfaction of the City of South Perth, as approved, on the advice of the affected adjoining property owner;,(c) varied by requiring the applicants to remove all excess fill between the alfresco area, and between the external walls facing the northern and eastern boundaries, so as to achieve an evenly sloping grade between the existing ground levels from those points to the approved ground levels on those boundaries;,(d) varied by extending the time for compliance to 30 June 2017;,(e) set aside in all other respects. |
Summary | The applicants applied for a review of the decision by the respondent to issue a direction under s 214 of the Planning and Development Act 2005 (WA).,The Tribunal rejected various grounds on which the applicants asserted that the direction was invalid. On a consideration of the evidence the Tribunal found all contraventions of the relevant development approvals alleged in relation to the finished floor level of the single house, the finished ground level of an alfresco area, the finished ground levels external to the walls of the house, the height of boundary fences, the encroachment of retaining walls, and the failure to paint the external face of a boundary fence in the manner stipulated, had been established. The Tribunal found that a condition imposed in granting approval for over height fences, restricting the height of retaining walls on which the fences were to be erected, was either not permissible or at the very least was unnecessary as all planning considerations could be addressed by restricting the height of the fences concerned, as had been done.,In the exercise of its discretion the Tribunal affirmed the decision under review so as to require compliance with the relevant development approvals in relation to the heights of the fences on the southern and eastern boundaries and the painting of the external face of the eastern boundary fence. The Tribunal varied the decision to require excess fill to be removed between the alfresco area and external walls of the building facing the northern and eastern boundaries so as to achieve an evenly sloping grade between those points and the approved ground levels on those boundaries and by extending the time for compliance. The direction was in all other respects set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WEST and CITY OF SOUTH PERTH [2017] WASAT 60 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR J FISHER (SENIOR SESSIONAL MEMBER)
- JUDITH MARGARET WEST
Applicants
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Planning and Development Act 2005 (WA) Review of decision to issue direction under s 214 Whether direction invalid Whether development carried out other than in accordance with Town Planning Scheme or conditions imposed by responsible authority Exercise of discretion to set aside, affirm or vary decision under review
Legislation:
Building Regulations 2012 (WA)
City of South Perth Town Planning Scheme No 6, cl 4.1(3), cl 5.3.7, cl 6.7(2), cl 6.10(3), cl 6.10(3)(a), cl 7.1, cl 7.2, cl 7.5, cl 7.12
Licensed Surveyors (General Surveying Practice) Regulations 1961 (WA), reg 25A(1)
Licensed Surveyors Act 1909 (WA), s 3
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61, cl 61(1)(d)
Planning and Development Act 2005 (WA), s 214, s 214(3), s 255(1)
Result:
Decision under review affirmed in some respects, varied in other respects and otherwise set aside
Summary of Tribunal's decision:
The applicants applied for a review of the decision by the respondent to issue a direction under s 214 of the Planning and Development Act 2005 (WA).
The Tribunal rejected various grounds on which the applicants asserted that the direction was invalid. On a consideration of the evidence the Tribunal found all contraventions of the relevant development approvals alleged in relation to the finished floor level of the single house, the finished ground level of an alfresco area, the finished ground levels external to the walls of the house, the height of boundary fences, the encroachment of retaining walls, and the failure to paint the external face of a boundary fence in the manner stipulated, had been established. The Tribunal found that a condition imposed in granting approval for over height fences, restricting the height of retaining walls on which the fences were to be erected, was either not permissible or at the very least was unnecessary as all planning considerations could be addressed by restricting the height of the fences concerned, as had been done.
In the exercise of its discretion the Tribunal affirmed the decision under review so as to require compliance with the relevant development approvals in relation to the heights of the fences on the southern and eastern boundaries and the painting of the external face of the eastern boundary fence. The Tribunal varied the decision to require excess fill to be removed between the alfresco area and external walls of the building facing the northern and eastern boundaries so as to achieve an evenly sloping grade between those points and the approved ground levels on those boundaries and by extending the time for compliance. The direction was in all other respects set aside.
Category: B
Representation:
Counsel:
Applicants : Self Represented (Acting as Agent)
Respondent : Mr A Roberts
Solicitors:
Applicants : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
Carbone and City of Wanneroo [2011] WASAT 27
Dermer & Anor v the Shire of Busselton & Ors [2002] WASC 15
Drake and City of South Perth & Anor [2005] WASAT 271
Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101
Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33
Johnston and Town of East Fremantle [2011] WASAT 139
Kuligowski and Director General of Transport [2011] WASAT 126
Singleton and Town of Port Hedland [2007] WASAT 188
The proceedings
1 The applicants apply under s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of a decision made by the City of South Perth (City) to issue a direction under s 214 of the PD Act (direction) in respect of a development carried out by or on behalf of the applicants, at Lot 3 on Diagram 42232 being the whole of the land contained in Certificate of Title Volume 1358 Folio 845 and known as 36 Pepler Avenue, Salter Point (Property).
Introduction
2 The applicants demolished the existing dwelling on the Property and thereafter over an extended period and by a series of applications to the City, as the responsible authority, sought planning approvals for initially the construction of a single house, (two storey), and at later dates thereafter, the construction of a northern boundary fence, the construction of an over height screen fence in the vicinity of the eastern boundary and the raising of the level of the ground in the northern and eastern sections of the property.
3 During this period disputes developed with neighbours and between the City and the applicants. Some neighbours either dispute having agreed to the height of fences or contend that the development as carried out by the applicants, particularly by raising the ground level of the Property, and by reason of the height of the fences is of excessive bulk and interferes with access to light and air. Upon investigation by the City it is alleged that the development has not been carried out in accordance with the applicable City of South Perth Town Planning Scheme No 6 (TPS) and the conditions imposed by the various approvals issued by the City. Further it is alleged that retaining walls encroach on adjoining properties. On 31 May 2016, the City issued the direction which is now the subject of these review proceedings.
The issues
4 The parties have provided an extensive volume of documentation, witness statements and written submissions.
5 The City has objected to a final document filed by the applicants on 8 December 2016 headed 'Supplementary information intended to clarify specific items in this matter'. The objection is on the basis that the document includes additional evidence submitted after both parties had closed their case, was not authorised by the Tribunal's directions for filing of submissions after the hearing, raised matters on which it had no opportunity to crossexamine and criticised aspects of the evidence of its witnesses which were not put to the witnesses during the hearing.
6 The City's objection is well founded. None of the new evidence referred to is particularly significant so as to justify a reopening of the case so that an opportunity can be provided for the evidence to be tested. The Tribunal will not consider any statements which might be considered to be new evidence. However, to the extent the document contains statements which may be regarded as submissions on the evidence which is before the Tribunal the Tribunal will have regard to those submissions.
7 Based on the material before the Tribunal the following issues will be determinative of the application:
1) Is the direction invalid?
2) If the answer to 1 above is no, has the development been carried out otherwise than in accordance with the TPS or any conditions imposed by the City with particular reference to:
• the finished floor level of the ground floor of the house;
• the finished ground level of the alfresco area;
• the finished ground level beyond the external walls of the house (and alfresco area);
• the height of retaining walls and boundary fencing; and
• the extent of any encroachment of retaining walls.
3) Having regard to all relevant circumstances should the direction be set aside, affirmed, or varied?
8 There are many sub-issues raised which will be considered when addressing the principal issues identified above.
The direction
9 The applicants assert that the direction is invalid because:
• The TPS does not contain a provision which requires approved development to comply with approved plans and the notice does not identify any such provision.
• The direction does not identify any condition of any of the approvals which required development in accordance with the approved plans.
• No reference is made to it being a condition of approval in respect of the eastern fence that the external face be a cream colour or that the fence was not that colour.
• Although the notice alleges encroachment of retaining walls it is not stated that the walls have been constructed without planning approval, contrary to any approval, or contrary to a condition of an approval.
10 A copy of the direction dated 27 May 2016 and covering letter from the City to the applicants dated 31 May 2016 is attached at the conclusion of these reasons for decision as Annexure A.
11 In Carbone and City of Wanneroo [2011] WASAT 27, Member Spillane, as he then was, considered the requirements of a direction issued under s 214(3) of the PD Act and referred to the decision of Brinsden J in Fermanis Investments Pty Ltd v City of Perth [1978] WAR 33 where his Honour adopted the following expression of principle in a different, but in our view apposite, statutory context:
In Miller-Mead v Minister of Housing and Local Government [1963] 1 All ER 459; [1963] 2 QB 196 at 232, Upjohn LJ said as follows: 'The whole question, therefore, now is whether the notice complies with s 23. One must remember the words of Lord Simon in the Bridlington case [1957] App Cas 223 at 238, that the court must insist that strict and rigid adherence to formalities, for the rights of owners and occupiers are being subjected to interference. This interference, however, on the other hand, is for the common good and the powers are entrusted to responsible public bodies of great experience. The requirements of the section must be interpreted with reasonableness in all the circumstances of the case. With all respect to Carter's case [1960] 1 QB 242, the function of the court is not to introduce strict rules not justified by the words of the section. I repeat, therefore, that in my judgment the test must be: does the notice tell him fairly what he has done wrong and what must he do to remedy it?'
12 The learned Member agreed with this statement and we accordingly adopt this approach in considering the effect of the direction given in this case.
13 We consider that the direction adequately informs the applicants what has been done wrong and what must be done to remedy the situation. Paragraph 5 of the direction asserts that the development has been carried out in contravention of the TPS, particulars of which are set out in the Second Schedule of the direction. The specific direction set out in paragraph 6 is to restore the land to be in accordance with the development approvals. The First Schedule incorporated in the direction sets out the relevant development approvals. We consider on a reasonable interpretation that a recipient of the direction would well understand what has been alleged to have been done wrong, and would understand the requirement within 60 days after service of the direction to restore the land to be in accordance with the development approvals.
14 Clauses 7.2(1) and (2) of the TPS require an application for development approval to be accompanied by a plan, setting out a number of particulars, unless waived by Council, including proposed finished ground levels (cl 7.2(2)(a)(ix)), floor levels (cl 7.2(2)(a)(x)) and many other details. Clause 7.5 of the TPS expressly empowers the Council to impose a broad range of conditions in considering an application for development approval. There is no merit in the submission that an approval may not be expressed by reference to the plan provided by the applicant. In many instances that is the only practical way in which to describe the terms of the approval.
15 We note that Schedule 3 of the direction specifies that the works described in Schedule 2 constitute development for which the consent of the City has not been obtained, setting out the regulatory basis requiring such consent, so that it is alleged, contrary to the applicants' submissions, that the retaining walls (to the extent of the alleged encroachments) were constructed without development approval.
16 We conclude the direction is valid. Whether the allegations made in the direction are made out is a different matter.
Has the development been carried out otherwise than in accordance with the TPS or any conditions of development approval?
17 It will be necessary to address each alleged contravention set out in Schedule 2 of the direction separately, but it is convenient to deal with some of the subissues raised which relate to or affect the outcome of more than one alleged contravention.
18 The first planning approval related to the development of the land by the construction of a single two storey house in accordance with the attached plans and is dated 16 April 2014 (April 2014 approval). The plan attached to the April 2014 approval showed the existing levels of the site and the approved finished floor level of the building of 9.900 metres relative to a datum height of 10.00 metres marked by a nail in the kerb of Pepler Avenue.
19 The applicants nevertheless assert that the finished floor level as constructed is in accordance with an oral approval given by Mr Mark Scarfone, a senior planning officer of the City, during a meeting on site on 3 April 2014.
20 We reject that contention.
21 Clause 7.2 of the TPS prescribes that applications for planning approval be in writing with necessary plans, be signed by the applicant and that a prescribed fee be paid. For the discussion with Mr Scarfone to have any legal effect the applicants would need to assert an estoppel, which they have not done, upon which they relied to their detriment. It is difficult to conceive the establishment of an estoppel fettering the exercise of a planning scheme designed for the public good see the principles discussed in Kuligowski and Director General of Transport [2011] WASAT 126.
22 We find that the applicants have attempted to place a significance on the discussion which is simply not justified. It is evident from the email communications at the time that no reference was made to the finished floor level. The discussion related to the use of sand fill and the extent to which it would be acceptable for the applicants to spread sand stock piled on the site relative to the height of the retaining wall on the southern boundary.
23 The applicants also rely on the discussion to assert that the site was filled to a level approved by Mr Scarfone. Yet their email to Mr Scarfone after the meeting and on the same date mentioned that Mr Scarfone had been informed they would be maintaining the existing levels in the northeast corner of the site for the later installation of a below ground swimming pool. It could not have been agreed between Mr West and Mr Scarfone that the entire site could be filled to the level of the retaining wall.
24 The applicants have raised criticisms about the drawings relied upon by Mr Paul Said, a licensed surveyor and expert witness called by the City, and consequently the measurements recorded which form the basis for the contraventions asserted in Schedule 2 of the direction, and in particular whether as a matter of law reliance can be placed on his evidence in relation to the extent of the alleged encroachment of retaining walls.
25 Save for the evidence of Mr Murray Carlton, a licensed surveyor and expert witnessed called by the applicants, as to the measurement of the finished floor level there is no expert evidence to directly challenge Mr Said's evidence. In that respect Mr Carlton's evidence is that he averaged two measurements to arrive at a measurement of 10.125 metres after first deducting 1.5 centimetres for the thickness of the timber flooring. This deduction should not have been made because the definition of 'floor level' under the TPS means the top surface of the finished structural surface and where the floor is covered by a permanent finish such as terrazzo, ceramic tiles, slates, or parquetry or the like, the top surface of those finishes. Subject to adjustment for this error, Mr Carlton's evidence on this aspect is preferred. Mr Carlton took the measurements from inside the house whereas the measurements established by Mr Said were taken from outside the property. Mr Said acknowledged these measurements would be subject to some margin of error which he said would be 10 to 20 millimetres. In all other respects, and for the further reasons given below, we accept Mr Said's evidence and measurements.
26 We do not accept Mr Carlton's evidence in respect to the height of retaining walls measured by using the height of Water Corporation sewer manholes as a datum to establish natural ground level, because these measurements are not relevant to heights approved relative to the 10.00 metre datum point.
27 It is submitted by the applicants that the survey plans produced by Mr Said cannot be used to prove the alleged encroachments of the retaining walls because it is necessary for a certificate to be provided under reg 25A(1) of the Licensed Surveyors (General Surveying Practice) Regulations 1961 (WA).
28 We do not accept this submission. The regulation concerned refers to the obligation to provide a certificate when carrying out an 'authorised survey'. This is a term defined in s 3 of the Licensed Surveyors Act 1909 (WA) as being a survey of land authorised or required, relevantly, by the proprietor, lessee or mortgagee under any Act affecting titles to land, including a survey of land which reestablishes boundaries, if that reestablishment involves the placement, replacement or relocation of any survey mark or is followed by advice for the purpose of enabling the boundaries to be located. The certificate is therefore not required for the purposes of establishing an encroachment.
29 We will now specifically address each alleged contravention referred to in Schedule 2 of the direction.
(a) The finished floor height is 0.26 metres higher than approved
30 Based on our acceptance of Mr Carlton's evidence above, on behalf of the applicants, and for the reasons discussed above, we find that the finished floor height is 10.125 metres plus the thickness of the timber flooring of 0.015 metres, namely 10.14 metres. This is 0.24 metres higher than approved.
31 We do not accept the applicants further submissions on this issue:
• that they should not be held responsible for an error on the part of the builder who it is said should have sought an amendment to the April 2014 approval and applied for a building permit showing the correct finished floor level; and
• that a note to the client on the approved building plans that floor levels could vary 100 millimetres either way should be given effect.
32 By an email dated 23 April 2014, the applicants informed their builder of the discussion with Mr Scarfone and asserted that as a result the finished floor level would vary from that shown on the drawings. It is true that if the builder had acted on this advice to apply for a variation to the April 2014 approval that the issue would have been addressed before construction on the house commenced. But the direct cause of the error was the applicants' misunderstanding about the possible extent of any 'authorisation' given by Mr Scarfone.
33 The client note, is just that, a note by the builder to its client. It has no bearing on the terms of the April 2014 approval.
34 The contravention is therefore established although to a slightly lesser extent than alleged, namely that the finished floor height is 0.24 metres higher than approved rather than 0.26 metres.
(b) The finished ground level of the alfresco is 0.24 metres higher than approved
35 The April 2014 approval by the attached plan approved that the alfresco area be constructed to a level of '- 1C'. Mr Said understood this to mean one brick course, which he understood to be 86 millimetres, lower than the ground floor finished level of 9.90 metres. Mr Siven Naidu, a statutory planning coordinator, employed by the City gave the same meaning to the notation in his oral evidence. This means the approved height for the alfresco is 9.814 metres relative to the 10.00 metre datum point.
36 Mr Said's evidence establishes that the actual level of the alfresco area varies between 10.04 and 10.06 metres which exceeds the approved level by 0.226 to 0.246 metres.
37 The applicants' submissions based on taking into account a 100 millimetre variation as per the client note to which reference has been made above fall away for the reasons given above. While the alfresco is approximately one brick course lower than the finished ground floor level as constructed, it should be a further 225 millimetres lower than that for the reasons given in relation to (a) above.
38 The applicants also submit that in any event under cl 5.3.7 and cl 6.3.6 of State Planning Policy 3.1 Residential Design Codes (R Codes) they could increase the level up to 0.5 metres above the natural ground level of 9.5 metres (established by a Cottage and Engineering Survey dated 17 December 2013 Applicants' Documents (AD) Tab 2). This submission is misfounded because the approved level is fixed by reference to the approved finished floor level of 9.90 metres and the height of the fill exceeds 0.5 metres. Clause 6.3.6 of the R Codes does not apply because Pt 6 thereof relates to multiple dwellings only, not single houses, as is the case with the applicants' development. Further, for the reasons given in addressing the next alleged contravention, cl 5.3.7 of the R Codes also does not assist the applicants.
39 The contravention is therefore established.
(c) The finished ground levels external to the walls of the house are up to 0.28 metres higher than approved
40 On 24 December 2015, the City granted an application by the applicants for development approval (December 2015 approval) giving retrospective approval for retaining walls on or near the northern and eastern boundaries of the land and for the raising of the ground level in the northeast corner and a strip along the eastern boundary.
41 Condition 1 of the December 2015 approval approved the raising of the ground level in an area highlighted in red in an attached plan to a height of no more than 9.6 metres, relative to the datum shown on the site plan referred to in the April 2014 approval (being 10.00 metres) expressly in order to not unreasonably adversely affect the amenity of neighbouring properties in relation to visual impact and overshadowing, having regard to the provisions of cl 6.10.3(a) of the TPS. The area highlighted is an area in the northeast corner and a strip along the eastern boundary and that part of it near the eastern boundary is immediately adjacent to Unit 2/5 Tandy Street, owned and occupied by Ms Jeanette Low, one of the neighbours who have complained. The part of the area near the northern boundary is immediately adjacent to 3 Tandy Street, a property owned and occupied by Mr P and Mrs RA Sylwestruk who have also been in dispute with the applicants.
42 The actual height within this area as measured by Mr Said varies from 9.68 to 9.98 metres.
43 The applicants submit that cl 61(1)(d) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) exempts them from requiring development approval because the R Codes apply and the deemedtocomply requirements have been met because less than 0.5 metres of fill has been used.
44 In order for the above exemption to apply it is necessary that the R Codes apply. But as submitted for the City:
• the effect of cl 4.1(3) of the TPS is that any development of land for residential purposes dealt with by the R Codes shall conform with the R Codes 'unless otherwise provided';
• clause 7.1 of the TPS requires planning approval by the Council of any development, except as otherwise provided;
• clause 7.2 of the TPS sets out developments which do not require Council planning approval and it does not include any exemption in respect of single houses; and
• the deemedtocomply provision of the R Codes relevant to cl 5.3.7, namely, cl 7.3 expressly defers to any requirement of, relevantly, a planning scheme and cl 6.10(3) of the TPS specifically sets out the requirements to be considered by Council in considering the grant of planning approval relating to the finished ground level external to the walls of the building and the use of fill.
45 It follows that cl 61(1)(d) of Sch 2 of the LPS Regs and the deemedtocomply requirements applying to cl 5.3.7 of the TPS do not exempt the applicants from requiring development approval. The applicants make reference in their closing written submissions to the deemedtocomply provision C8.2 but as this relates to retaining walls it has no relevance to the issue concerning the use of fill to raise the finished ground level.
46 Further, we accept the submissions for the City that the use of fill constitutes the carrying out of 'works' within the meaning of cl 1 of Sch 2 of the LPS Regs consistent with the reasoning applied in Singleton and Town of Port Hedland [2007] WASAT 188 at [20] and that cl 60 thereof prohibits the carrying out of works on land unless development approval has been obtained or the works are exempt from approval under cl 61, which we have held not to be the case.
47 It follows that the contravention is established by reason that there is no approval to raise the level of the ground external to the walls of the building to the existing heights as alleged and established which:
• is contrary to cl 60 of Sch 2 of the LPS Regs, which provisions are deemed to be included in the TPS, and therefore constitutes a breach of the TPS; and
• constitutes a failure to comply with condition 1 of the December 2015 approval.
(d) Construction of retaining walls with a top of wall height up to 0.29 metres higher than approved
48 The December 2015 approval relates to retaining walls, fences over the standard height and provision of fill to raise the finished ground level.
49 Condition 2 of the December 2015 approval is in terms that the finished level of the retaining walls on the northern and eastern boundaries shall be no higher than 0.98 metres relative to the datum shown on the site plan of the approved single house dated 16 April 2014 (April 2014 approval).
50 The evidence of Mr Said establishes through the drawing 1603803 attached to his statement that the eastern retaining wall exceeds the approved height by 0.19 metres at the southern end to 0.28 metres at the northern end and the northern wall exceeds the approved height by 0.24 metres at the western end, 0.29 metres near the middle of the wall and 0.28 metres at the eastern end.
51 The applicants submit that no development approval is required in respect of the retaining walls because they assert they retain less than 0.5 metres of fill, relying on cl 5.3.8 and cl 8.2 of the R Codes. This submission is misconceived. The provisions referred to provide that a retaining wall less than 0.5 metres high is deemedtocomply. Mr West's evidence is that the retaining walls are constructed with blocks in three tiers, the first of which is buried below ground. Each block is 350 millimetres high which means that the height of the wall above ground is approximately 0.7 metres. This is consistent with the elevation plan submitted when applying for, and which is attached to as part of, the December 2015 approval. The plan reflects that two blocks are visible above ground and gives the height above natural ground level on the northern end as 0.69 metres and at the southern end as 0.74 metres. The wall therefore exceeds 0.5 metres in height.
52 The applicants then submit that no approval was sought in respect of the northern and eastern retaining walls and we should hold condition 2 to be invalid. The City contends that it was within power to impose conditions on the heights of retaining walls, and the fences to be constructed above them once the applicants applied to raise the ground levels, because these are all interrelated. The City submits that the height of the retaining walls has a compounding effect on the height of the eastern Colorbond fence constructed on top of the retaining wall.
53 Further, the City submits, and we accept, that the conditions were imposed and remain in full force and effect until quashed or declared invalid: Dermer & Anor v the Shire of Busselton & Ors [2002] WASC 15 at [12]. No proceedings have ever been commenced by the applicants to challenge the decision to impose the conditions. In effect, the applicants seek to make a collateral attack on the decision to impose condition 2 and have it declared invalid. We do not have power in these proceedings to review the December 2015 decision. However, we consider that on an application of the principles discussed in Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101, we have power to determine whether, as a result of the invalidity of, or any other factor, affecting the reasonableness of that decision, it would be inappropriate to affirm the direction under review.
54 The development application the subject of the December 2015 approval did not relate to the northern retaining wall. The applicants explained in the letter of 27 October 2015 (AD Tab 26) that they had not constructed a limestone block boundary fence on the northern boundary in terms of an earlier planning approval (granted 10 November 2014) (Respondent's Documents (RD) Tab 5) (November 2014 approval) because the neighbours (Mr P and Mrs RA Sylwestruk) had withdrawn their consent. The applicants advised they had accordingly constructed a block wall near the northern boundary at a height varying between 350 and 690 millimetres above the original ground level and retaining less than 500 millimetres as (they contended) this did not require building approval. The applicants explained they intended to install a 1800 millimetre fence on top of the northern block wall referring to the November 2014 approval as authorising an over height fence greater than 1.8 metres in height.
55 The City has not contended that the northern fence comprising the block wall and Colorbond fence above it was not constructed under the November 2014 approval but maintain that it was entitled to impose a condition on the height of the retaining wall or block wall section because of the application to increase the ground level.
56 We do not accept that it was permissible, or at the very least necessary, to impose a restriction on the height of the retaining wall components of the northern or eastern boundary walls when considering an application for development approval to raise the ground level, when all legitimate planning considerations could be met by addressing the overall height of the fences, which, as will be seen from the discussion of the following heading, was done.
57 As we have come to the above conclusion favourable to the applicants it is strictly not necessary to deal with the other bases upon which they have attempted to impugn the imposition of condition 2 above. However, we do not accept the applicants' submission that the imposition of condition 2 in respect of the northern wall is oppressive or unnecessary because of its limited retaining function, or that the condition should not have been imposed in respect of the eastern wall because it does not retain more than 0.5 metres of fill, and that it restricts their right otherwise to build a retaining wall without a building permit under an exemption applying under the Building Regulations 2012 (WA). None of these factors bear upon planning considerations of visual impact or overshadowing.
(e) Construction of eastern and northern fences up to 0.36 metres higher than approved
58 Condition 3 of the December 2015 approval required that the height of the eastern boundary fence not exceed the 11.6 metres relative to the 10.00 metre datum applying under the April 2014 approval.
59 Mr Said's evidence establishes that the height of the fence is 11.96 metres, which is 0.36 metres higher than was approved.
60 The approved plan under the November 2014 approval shows that the proposed height of the northern fence relative to the 10.00 metre datum was 11.8 metres at its western end and 11.906 metres at its eastern end.
61 The evidence of Mr Said establishes completed heights of the northern fence at its western and eastern ends of 11.94 and 11.96 metres respectively. This fence is accordingly 0.14 metres higher than approved at its western end and 0.054 metres over the approved height at its eastern end.
62 The contravention is accordingly established.
(f) Southern boundary fence constructed up to 0.52 metres higher than approved
63 Condition 9 of the April 2014 approval for the construction of the house provided that the height of fences on side and rear boundaries (the southern boundary is a side boundary) behind the primary street setback be 1.8 metres high unless a height greater than 1.8 metres, or a height not less than 1.6 metres is acceptable to all adjoining property owners. The condition continued to state that the height was to be measured from the level of the ground adjacent to the fence and where the ground level is higher on one side than the other, the height is to be measured from the higher side.
64 Mr Said's evidence establishes that the height of the western and eastern ends of the southern boundary fence is 2.14 and 2.13 metres respectively, above the top of the retaining wall upon which it is constructed. This measurement favours the applicants as the soil level should be below the height of the retaining wall.
65 The applicants assert that they had the consent of the owners of the two properties which adjoin the southern boundary being Mr Brian and Mrs Gloria Underwood of 38 Pepler Avenue, and Mrs Natalia Josephs, on behalf of herself and her husband Mr Don Josephs, of Unit 2/16 Unwin Court. Mr and Mrs Underwood provided a statement (Exhibit 10) confirming their agreement to the fence as constructed.
66 Mrs Josephs provided a written statement (Exhibit 3) and gave oral evidence. She testified she had agreed orally to a proposal from Mr West that he would replace at his cost, the existing super six fence, with a limestone fence to the same height and in the same place, provided the limestone construction was approved by the Council as a fence. Mrs Josephs stated that what was constructed was a retaining wall, of which there had been no mention, with a metal fence above it which is 'many feet above the original fence line' and which 'substantially encroached on our property'.
67 It is not contended that Mrs Josephs gave any written approval. She gave evidence in an entirely acceptable manner. We accept her evidence. In the absence of agreement by Mr and Mrs Josephs, subject to the applicants' submission addressed below that condition 9 cannot apply to the southern boundary, the applicants were not entitled to construct a fence in excess of 1.8 metres above the ground level on the higher side of the fence.
68 The applicants assert condition 9 could not apply as the fence had already been constructed at the time of the grant of the April 2014 approval. The completion of the fence at the time of Mr Scarfone's meeting with the applicants on site on 3 April 2014 is not disputed. However, this argument does not assist the applicants because if the condition does not apply then this means the fence was constructed in breach of cl 6.7(2) of the TPS which would justify the affirmation, or variation of the direction, subject to discretionary factors discussed later in these reasons.
69 The City submits that it is logical to read the April 2014 approval as applying retrospectively insofar as it applies to the southern boundary wall.
70 We do not accept this submission. Clause 7.12 of the TPS permits retrospective approval only if the development complies with the Scheme. Clause 6.7(2) of the TPS only permits a fence higher than 1.8 metres if the prior consent of Council is obtained and Council Policy P350.7, quoted in condition 9, sets out the requirement that the approval is acceptable to all adjoining owners, which it was not. The consent of Council could therefore not be given and without Council approval the development does not comply with the TPS.
71 In these circumstances a contravention of the TPS is established by the construction of a fence which exceeds 1.8 metres in height without the prior approval of Council, although the extent to which that height exceeds 1.8 metres is 0.33 to 0.34 metres not up to 0.52 metres as alleged.
(g) Construction of eastern boundary fence with external face not being a cream colour to the satisfaction of the City, as approved, on the advice of the affected adjoining property owner
72 Condition 4 of the December 2015 approval provided that the external face of the eastern boundary fence be finished in a cream colour to the satisfaction of the City, as approved, on the advice of the affected adjoining property owner.
73 Ms Jeanette Low, the owner of the affected property being 2/5 Tandy Street, provided a written witness statement and gave oral evidence. She testified as to the poor manner in which paint had been applied to the external face of the fence allowing the dark underlying colour to show through and resulting in a poor finish. This coat of paint was applied after the issue of the direction under review on 30 September 2016. In closing submissions the applicants intimated a willingness to comply with the condition if the direction was held to be valid, which we have held to be the case, which is tantamount to an admission that the existing finish is inadequate.
74 We find the contravention is established.
(h) Construction of retaining walls beyond the eastern and southern lot boundaries, encroaching on to adjoining properties
75 The direction reflects and evidence of Mr Said establishes that:
• the southern retaining wall encroaches into 38 Pepler Avenue between 0.24 metres at the western end to 0.26 metres at the eastern end;
• the southern retaining wall encroaches into 2/16 Unwin Street between 0.26 metres at the western end to 0.29 metres at the eastern end; and
• the eastern retaining wall encroaches into 2/5 Tandy Street by 0.04 metres at the northern end.
76 As submitted for the City a boundary retaining wall is a form of fence, and is a development, under the relevant definitions under the TPS and PD Act, and as they formed part of fences in excess of 1.8 metres in height required development approval under cl 7.1 and cl 6.7(2) of the TPS. The April 2014 and December 2015 approvals showed that the retaining walls were to be constructed within the boundaries of the applicants' property.
77 Since the walls were not constructed within the boundaries of the applicants' property the contravention is established.
Having regard to all relevant circumstances should the direction be set aside, affirmed, or varied?
78 The relevant considerations which generally apply in the exercise of a discretion, to issue, and on review of a decision to issue, a direction issued under s 214 of the PD Act, have been identified in numerous decisions of the Tribunal including, Drake and City of South Perth & Anor [2005] WASAT 271 and Johnston and Town of East Fremantle [2011] WASAT 139. These considerations are:
• The public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity.
• The impact of the contravention of the scheme on the affected locality and environment.
• The factual circumstances in which the contravention of the scheme took place.
• The time which has elapsed since the development was undertaken in contravention of the scheme.
• The expense and inconvenience which would be involved in remedying the contravention of the scheme.
79 We apply these considerations to each of the contraventions which we have found to be established.
80 In this matter the noncompliance with the approved finished floor level of the dwelling resulted from the applicants' reliance upon advice from Mr Scarfone that it would be permissible to use fill to the height of the southern retaining wall, although the extent to which that advice related to the rest of the site is not clear, particularly as the applicants stated at the time that they intended to maintain the then existing ground level in the northeast section of the property. If the 1C level of the alfresco area was to be maintained this necessarily meant an increase in the finished ground level of the house. The applicants' builder, who had applied for the initial development approval for the house, acknowledges in an email dated 1 September 2016 (Exhibit 9) that it had been informed at the time of the advice given by Mr Scarfone and that it should have applied to vary the April 2014 approval to raise the finished floor level. As we have found that advice was misunderstood by Mr West, and therefore the advice was erroneously conveyed to the applicants' builder. Nevertheless, if the builder had followed the course mooted it can be assumed that either the amended development application would have been granted, or if refused, the issue of the finished floor level would have become apparent so that the contravention could likely have been avoided.
81 It is relevant to have regard to the above circumstance when considering whether the direction to comply with the approved finished floor level should be affirmed.
82 While there is no evidence of the expense and inconvenience of achieving compliance it is selfevident that this would be a major undertaking.
83 None of the adjoining owners in dispute with the applicants made any reference to this issue. Mr Naidu, the City's statutory planning coordinator, gave oral evidence confirming his written statement (Exhibit 8) in which he described the site, the history of dealings with the applicants in relation to the various development applications and related issues. He stated that the raised ground levels and over height retaining walls and fences resulted in inconsistency with the existing streetscape, higher finished ground levels and fence heights in comparison with adjoining properties, increased impact of visual building bulk to surrounding lots and increased extent of overlooking, which could result in lack of privacy of adjoining lots. In crossexamination he was challenged only on the basis that any lowering of fence heights would increase overlooking.
84 We have had regard to a considerable number of photographs in evidence, and in particular to AD Tab 28 photograph 39, which was specifically relied upon by the City in its closing submissions, in support of an assertion that the higher finished ground level and higher fences is inconsistent with the streetscape.
85 We address the fence issues later in these reasons. As far as the finished floor level is concerned we do not consider that the increased height has any significant impact on bulk, overlooking or streetscape issues taking into account the conclusion reached below in relation to fences.
86 There was no delay in dealing with the contraventions and the public interest factor speaks for itself. Taking all factors into account we conclude that the applicants should not be required to reduce the finished floor level referred to in the Second Schedule paragraph (a) of the direction.
87 For the same reasons we consider the applicants should not be required to reduce the finished ground level of the alfresco area referred to in the Second Schedule paragraph (b) of the direction.
88 Save for the April 2014 approval the applicants were responsible for all other applications for development approval. By the time of each application subsequent to the April 2014 approval the applicants were well aware that all approvals gave heights approved by reference to the datum level established by the April 2014 approval. The approvals were expressed in terms which clearly did not accept the height descriptions given by the applicants by referring back in each instance to the April 2014 approval height datum. That height datum was the height of a nail in the kerb and had nothing to do with the finished floor height (other than that the finished floor height was also a height fixed relative to the same datum). Whatever the applicants understanding may have been about the finished floor level of the house at the time of issue of the building permit, there could not have been any misunderstanding of the heights imposed by the subsequent approvals.
89 When regard is had to the plan in support of the December 2015 approval and the photograph of the completed eastern boundary fence (see AD Tab 28 photograph 38) it can be seen that the applicants have constructed the fence to join the southern fence just below the height of that fence as shown in the plan. We consider this was done deliberately to achieve the desired result when they were aware there was an issue about levels. Mr West could not have misunderstood the basis on which heights were approved. Mr West is a licensed surveyor and a professional engineer (AD Tab 26). His conduct of the matter throughout demonstrates his understanding of all issues.
90 The complaint of neighbours is directly aimed at the use of fill to raise the site and the height of fences. We consider the height of the fences, particularly on the eastern and southern boundaries result in overshadowing and issues of bulk. This is particularly evident from Ms Low's property (2/5 Tandy Street). She first complained to the City when only the southern fence had been constructed because of the visual impact on her property (see the second unnumbered photograph (RD Tab 3)). Mrs Josephs, whose property (2/16 Unwin Court) directly adjoins a section of the southern boundary fence, had a similar complaint. It is not necessarily of any moment that Mrs Josephs has since sold the property, when considering planning considerations relevant to the established contraventions. The objection of a neighbour is not essential although it may be a relevant consideration. In this instance a neighbour whose consent was required under the City's policy relating to over height fences objected, and another neighbour, Ms Low, is also affected.
91 The eastern boundary fence more directly affects Ms Low as it coincides almost entirely with her boundary. Photographs before and after the construction of the eastern boundary fence show the extent to which the fence now overshadows her property and affects light and air into the windows she identified as her kitchen and laundry bathroom (see AD Tab 28 photographs 16 and 42). The last photograph and photograph (Y) following shortly thereafter demonstrates the visual bulk and overshadowing of the fences on the eastern and southern boundaries relative to the adjoining properties. The fences are to the eaves of 2/5 Tandy Street and even higher than that in relation to 2/16 Unwin Court. It is for this reason that we consider that a reduction in fence height, particularly with a reduction in ground level, will not result in an overlooking issue in respect of these boundary fences.
92 The northern fence is over the approved height by a small measure of between 0.054 metres at its western end to 0.14 metres at its eastern end. No neighbours have complained about this.
93 There is no evidence of what expense and inconvenience would be involved in reducing the heights of the fences and reducing the ground level. In the context of this matter, and in particular the possible cost of reducing the finished floor level, the cost would not be significant.
94 Taking all factors into account we consider:
• The finished ground level referred to in the Second Schedule paragraph (c) of the direction should be reduced so as to achieve the approved ground levels at the northern and eastern boundaries. This should be achieved by sloping the ground to achieve an even grade from the alfresco area, and from the external walls facing the northern and eastern boundaries to the approved ground levels at those boundaries.
• The height of the eastern and southern fences referred to in the Second Schedule paragraphs (e) and (f) respectively, of the direction, should be reduced to achieve a height no higher than the approved level in respect of the eastern boundary fence and a height not exceeding 1.8 metres in respect of the southern boundary fence.
95 In relation to the Second Schedule paragraph (e) of the direction relating to painting the external face of the eastern boundary wall in a cream colour, the applicants stated that if we found the direction notice was valid, which we have done, they would comply with condition 4 of the December 2015 approval. It is appropriate having regard to all factors to ensure that there be such compliance.
96 The encroachment of the retaining wall on the eastern boundary of 0.04 metres is insignificant. It has not been the subject of complaint by the affected owner, Ms Low. We do not consider it appropriate to require removal of the encroachment.
97 The encroachment in respect of the southern boundary with 38 Pepler Street of between 0.24 metres at the western end and 0.26 metres at the eastern end is more significant, but it was constructed with the assistance of the then owners of that property and with their consent. The current owner of the property has made no complaint. This wall extends to form the boundary with 2/16 Unwin Court. It encroaches by 0.26 metres at the western end and 0.29 metres on the eastern end of that property. Mrs Josephs, as the then owner, with her husband, complained about the encroachment. There has been no complaint by the current owner.
98 It would be a fairly significant undertaking to remove this encroachment probably involving a rebuilding of the wall as the encroachment is approximately two thirds of the thickness of the limestone block forming the wall. If the current or even a subsequent owner of either of these properties at some later date takes issue over the encroachment there remain other remedies available. In all the circumstances we do not consider it appropriate to require removal of the encroachment. The applicants should therefore not be required to comply with paragraph (h) of the Second Schedule of the direction.
Conclusion and order
For the reasons given above we conclude that an order should issue in respect of the decision under review in the following terms:
1. The direction issued by the respondent to the applicants on 31 May 2016 pursuant to s 214 of the Planning and Development Act 2005 (WA) is:
(a) affirmed by requiring the applicants to reduce the heights of the fences on the eastern and southern boundaries to achieve a height no higher than the approved level in respect of the eastern boundary and 1.8 metres in respect of the southern boundary;
(b) affirmed by requiring the applicants to finish the external face of the eastern boundary in a cream colour to the satisfaction of the City of South Perth, as approved, on the advice of the affected adjoining property owner;
(c) varied by requiring the applicants to remove all excess fill between the alfresco area, and between the external walls facing the northern and eastern boundaries, so as to achieve an evenly sloping grade between the existing ground levels from those points to the approved ground levels on those boundaries;
(d) varied by extending the time for compliance to 30 June 2017;
(e) set aside in all other respects.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR SESSIONAL MEMBER
Annexure A
0
7
6