Wood and Anor and Town of Vincent
[2006] WASAT 159
•20 JUNE 2006
WOOD & ANOR and TOWN OF VINCENT [2006] WASAT 159
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 159 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:654/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 20/06/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed | ||
| B | |||
| PDF Version |
| Parties: | TRISH WOOD GARRY UNDERWOOD TOWN OF VINCENT PERRINE ARCHITECTURE |
Catchwords: | Retrospective approval – Streetscape – Orderly and proper planning – Undesirable precedent – Preservation of amenity – Performance criteria – Acceptable development provisions |
Legislation: | Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401(1)(c), s 401(3) Metropolitan Region Scheme Residential Codes of Western Australia 2002, cl 1.3.3, cl 3.2.4, cl 3.2.5, cl 3.2.5(P5), cl .2.5(A5) Town of Vincent Town Planning Scheme 1, cl 32, cl 47 Town Planning and Development Act 1928 (WA), s 10(3) |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Nil |
Orders | On the application determined on the papers by Sessional Member Lloyd Graham on 20 June 2006, it is ordered that:,1. The application for review is allowed and the decision under review is set aside.,2. The existing gate and fence are to remain as constructed, subject to both the gate and fence having at least two (2) significant design features each added to reduce their visual impact.,3. Details of the design features required by Order 2 are to be discussed by the applicants in consultation with the Town of Vincent within twenty one (21) days of the date of these Orders, prior to being formally submitted to the Town of Vincent for approval within fourteen (14) days thereafter.,4. That in the event of a dispute between the parties following a formal decision by the Town of Vincent required by Order 3, the matter is to be immediately referred to the Tribunal for final determination. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WOOD & ANOR and TOWN OF VINCENT [2006] WASAT 159 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 20 JUNE 2006 FILE NO/S : DR 654 of 2005 BETWEEN : TRISH WOOD
- GARRY UNDERWOOD
Applicants
AND
TOWN OF VINCENT
Respondent
- Applicant
AND
TOWN OF VINCENT
Respondent
- GARRY UNDERWOOD
- PERRINE ARCHITECTURE
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Retrospective approval – Streetscape – Orderly and proper planning – Undesirable precedent – Preservation of amenity – Performance criteria – Acceptable development provisions
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401(1)(c), s 401(3)
Metropolitan Region Scheme
Residential Codes of Western Australia 2002, cl 1.3.3, cl 3.2.4, cl 3.2.5, cl 3.2.5(P5), cl .2.5(A5)
Town of Vincent Town Planning Scheme 1, cl 32, cl 47
Town Planning and Development Act 1928 (WA), s 10(3)
Result:
The application for review is allowed
Category: B
Representation:
DR 654 of 2005
Counsel:
Applicants : N/A
Respondent : N/A
(Page 3)
Solicitors:
Applicants : N/A
Respondent : N/A
DR 521 of 2005
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
CC 250 of 2005
Counsel:
Applicants : N/A
Respondent : N/A
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 The application for review by Trish Wood and Garry Underwood arises from a decision of the Town of Vincent to refuse an application for retrospective approval for an already built gate and fence at No 1A Primrose Street, Perth.
2 The review required an analysis of the circumstances behind the construction of the gate and fence that were contrary to the requirements of condition (ix) of the planning approval of 11 June 2002. Also, matters relating to the relevant provisions of State and local policy, orderly and proper planning, undesirable precedent and the preservation of the amenity of the locality were all examined.
3 In the view of the Tribunal, the weight of argument falls with the applicants and the application is allowed, subject to an appropriate condition to modify the current appearance of both the existing gate and fence.
4 This matter (DR 654 of 2005) is determined in conjunction with matter numbers DR 521 of 2005 and CC 250 of 2005.
Introduction
5 The application for review (DR 654 of 2005) by Trish Wood and Garry Underwood (applicants) has resulted from a decision of the Town of Vincent (respondent), on 27 September 2005, to refuse an application for retrospective approval for the addition of a front fence and gate to an existing single residence at No 1A Primrose Street, Perth (subject land or site). Both the fence and gate are already constructed on the subject land.
6 An earlier refusal against an application for retrospective planning approval had also been given by the respondent on 24 August 2004, but no appeal was lodged by the applicants against that decision. The reason for this is explained in an affidavit signed by the applicants on 7 April 2005, declaring that they did not receive any correspondence from the respondent with respect to their application dated 20 May 2004.
7 The matter has been complicated to a degree by another application, dated 14 February 2005, by the applicants (CC 250 of 2005) to this Tribunal under the Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401(3). That application followed the issuing of a notice, dated 17 January 2005, under s 401(1)(c) by the respondent to pull
(Page 5)
- down and remove the concrete block wall and galvanised steel gate. Also, a written direction of the same date was issued under s 10(3) of the Town Planning and Development Act 1928 (WA) to remove the works from the property and restore it as nearly as practicable to its original condition.
8 On the application heard before Tribunal Member James Jordan, on 1 February 2005, it was determined that matter number CC 250 of 2005 was to be determined in conjunction with matter number DR 654 of 2005.
9 The decision of the respondent on 27 September 2005, to refuse the application advised:
"That;
i) in accordance with the provisions of the Town of Vincent Town Planning Scheme No. 1 and the Metropolitan Region Scheme, the Council REFUSES the application submitted by Perrine Architecture Pty Ltd on behalf of the owners P M Wood and G A Underwood for Street/Front Fence and Gate Addition to Existing Single House (Application for Retrospective Approval), at No. lA (Lot 116 D/P 95653) Primrose Street, Perth, and as shown on plans stamp-dated 25 August 2005, for the following reasons:
(a) the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(b) the non-compliance with the Town's Policy relating to Street Walls and Fences; and
(ii) the Council ADVISES the owner of No. 1A (Lot 116 D/P 95653) Primrose Street, Perth, that the unauthorised solid street/front fence and gate is to be removed within 14 days of the date of notification by the Town, and the Council AUTHORISES the Chief Executive Officer to initiate legal proceedings against the owner of No. lA (Lot 116 D/P 95653) Primrose Street, Perth, if this unauthorised street/front fence and gate still remains after the 14 days period."
(Page 6)
Subject land
10 The subject land is described as Lot 116 on Diagram 95653 Primrose Street, Perth, and it has a total site area of 178.2 square metres with a frontage of 9.125 metres. The depth of the site is 19.535 metres.
11 There is a two-storey residence on the site with an elevated entry to the home via stairs. There is an upper level balcony of some 4 square metres overlooking Primrose Street and two car parking spaces are provided for vehicles to park one behind the other. A front courtyard of some 23 square metres is located immediately behind the front gate and there is a rear courtyard of some 24 square metres.
Legislative framework
12 The subject land is zoned "urban" under the Metropolitan Region Scheme (MRS) and "Residential R80" under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
13 The most relevant policies are the Western Australian Planning Commission's (WAPC) Statement of Planning Policy 3.1 – Residential Design Codes of Western Australia 2002 (Codes); and the Town of Vincent Development and Design Policy No 3.2.5 – Streets Walls and Fences (SWF policy).
Respondent's position
14 The respondent's position is outlined in the "Statement by Respondent" (CC 250 of 2005), dated 22 March 2005, and the "Witness Statement" of Mr Rasaratnam Rasiah, Principal Planning Officer (Statutory) (DR 654 of 2005).
15 The first of these two documents explains:
a) Under cl 32 of TPS 1:
"A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by Clause 33, without first having applied for and obtained planning approval."
As the subject development does not qualify for an exemption under cl 33 a planning approval for the front fence and gate is required. No such approval has been granted.
(Page 7)
- b) A conditional approval was granted on 11 June 2002 for a two-storey single house. Condition (ix) stated:
"(ix) no fence shall exceed a maximum of 1.8 metres above the ground level. Decorative capping on top of posts and piers may extend up to a maximum height of 2.0 metres. The solid portion of the front fences and gates adjacent to Primrose Street shall be a maximum height of 1.2 metres above the ground level, with the upper portion of the front fences and gates being visually permeable, with a minimum 50 per cent transparency ..."
The unauthorised front fence in its current state does not comply with condition (ix).
c) The existing wall does not conform to the SWF policy; the substance of which is contained within condition (ix).
d) The objective of the SWF policy is to prevent solid front fences within the front setback area, as they are considered to dominate and detract from the streetscape, and do not encourage passive surveillance between the street and the residence.
e) The wall does not conform to cl 3.2.5(A5) of the Codes.
f) The unauthorised wall creates an undesirable and negative precedent to the streetscape of the area, and the whole of the Town of Vincent.
g) The unauthorised wall adversely affects the orderly and proper planning and the preservation of the amenities of the locality.
16 In his "Witness Statement" of 5 April 2006, Mr Rasiah argued:
a) The applicants were notified of the condition in the planning approval relating to the wall, but chose to construct it differently and then seek retrospective approval.
b) The SWF policy clearly states that solid front/street walls and gates may be permitted along a secondary street, primary distributor or district distributor road. Primrose Street does not have such a classification.
(Page 8)
- c) The front wall and gate, by reason of its height and design, is an inappropriate development because it is an over dominant and incongruous feature in the street and is to the detriment of the visual amenity and character of the area.
Applicants' position
17 The applicants' position is outlined in an advice, dated 22 March 2006, from the architects from "Perrine". They argue:
a) The fence on the subject land is similar in nature to many, if not most, other fences in the street.
b) The respondent has applied its standard fencing policy without acknowledging the residents' complaints about the street crime and prostitution in the local area.
c) The respondent has not treated other non-compliant fences in a similar manner to this case.
d) The respondent's wish to see open materials above 1.2 metres is inappropriate for the amenity of this locality.
e) Residents who have adhered to the "open" fence policy are now adapting their fences to create higher privacy levels to deter thieves and other undesirable impacts on their lifestyle.
f) The fence has a significant amenity impact on the subject land of 180 square metres (approximately) with a major habitable courtyard at the front of the block, which requires the fence to maintain privacy.
g) The Tribunal has previously affirmed that a habitable area may be an external space and that such an area has primary rights to privacy and amenity. The respondent's fencing policy breaches the basic principles of the requirement of amenity and privacy.
h) The fence does not face another residential frontage as envisaged by the respondent's guidelines, but the back of existing houses and a church, which treat the street as an "alleyway". The immediately facing fence elements are 2.1 metres high.
i) The top of the fence is about 200 millimetres above the bottom of the front door. Any lowering of the fence would be to the significant detriment of security and privacy.
(Page 9)
- j) The design of the house is arguably of a higher architectural standing than any other house in the street. The garage has been reduced to a single car width to augment the visual presentation to the street and facilitate a habitable courtyard to the front north facing aspect. No other house has responded to the street in such a proactive and considered manner, with most houses addressing the street with a double car bay and a token entry area.
Planning issues
18 The principal planning issues are:
a) Would a decision in favour of the applicants be contrary to all of the relevant provisions of State and local policy?
b) Would a decision in favour of the applicants be contrary to orderly and proper planning, and the preservation of the amenity of the locality?
c) Would a decision in favour of the applicants create an undesirable precedent elsewhere in the Town of Vincent?
Assessment of proposal
Background
19 On 23 June 1997, the respondent granted development approval for 13 two-storey grouped dwellings fronting Primrose Street and Lake Street. The land was subsequently subdivided into individual freehold properties; seven of which front Primrose Street. The subject land is one of those properties.
20 On 11 June 2002, the respondent approved the application dated 25 March 2002 for a two-storey single house on the subject land, but subject to 10 conditions.
21 In the submission of 22 March 2006 from the architectural firm "Perrine", they advised:
a) The fence and gate formed part of the planning application and building licence application.
b) The fence on the building licence approved drawings show a 1.8 metre high wall of which 1200 millimetres is described as a "solid concrete wall" and the upper 600 millimetres is described as "25% transparent perforated metal sheet".
(Page 10)
- c) The gate on the building licence approved drawings is described as:
"900 mm wide x 1800 mm gate with solid galvanised sheet between slotted aluminium top and bottom."
d) The building licence approved drawings show the fence in section as being a 1.8 metre high solid wall.
e) The intent of the approved plans was for a 600 millimetre perforated screen to be supplanted over the solid wall.
f) During construction, as a result of a complaint to the respondent, the respondent requested a planning application be lodged in respect of the variation in design and material to the top portion of the wall.
g) The respondent now required the top 600 millimetres to be a "minimum 50% transparency".
h) An application for development approval was lodged on 20 May 2004 for a variation to the wall with the support of adjoining neighbours. It was rejected by the respondent on the 24 August 2004.
i) A further application was rejected by the respondent on 11 October 2005.
22 In relation to [21(f)] above, the letter to the applicants from the respondent, dated 6 May 2004, did advise that following a complaint and a subsequent inspection of the property, that condition (ix) of the planning approval issued on 19 June 2002 had not been complied with. The applicants were requested to comply with the condition whereby only 1.2 metres of the gate and wall could be of solid construction with the upper portion being visually permeable. They were advised of the possibility of a $50 000 penalty and a daily penalty of $5000. They were invited to lodge an application for retrospective planning approval, which they did on 20 May 2004.
23 In the view of the Tribunal, if the contentions of the applicants are correct, the following has occurred:
a) The drawings lodged with the application for a building licence did not accord with condition (ix) of the planning approval of 11 June 2002 with respect to both the front gate and front wall.
(Page 11)
- b) The drawings approved by Council as part of the building licence application were contrary to both condition (ix) of the planning approval of 11 June 2002 with respect to the front gate and front wall and the SWF policy.
c) The actual 900 millimetre wide x 1800 millimetre front gate is of solid galvanised sheet construction and does not have "slotted aluminium top and bottom" as described in the approved building licence drawings.
- State and local policy
24 Under State policy, Design Element 3 – Streetscape Requirements of the Codes, the question of street walls and fences is addressed (cl 3.2.5). The "deemed to comply" acceptable development provisions state under cl 3.2.5 A5:
"Front walls and fences within the primary street setback area that are visually permeable 1.2 [metres] above natural ground level."
25 The corresponding performance criteria (cl 3.2.5 P5), which allow the possibility of an alternative approach to gaining a planning approval, state:
"Front walls and fences to promote surveillance and enhance streetscape, taking account of:
• the need to provide protection from noise and headlight glare where roads are designated as Primary or District Distributors or Integrator Arterials; or,
• the need to provide screening where there is no alternative outdoor living area to the front setback."
26 Under cl 1.3.3 of the Codes, variations are provided for by way of a local authority town planning scheme. The SWF policy has been prepared under cl 47 (planning policy) of TPS 1.
27 The following extracts from the SWF policy are relevant to this review:
a) "In recent decades there has been a tendency for some owners to construct high walls or fences at or near the street, usually for reasons of privacy, security (which may be misplaced) or (very commonly) protection from traffic noise or headlights."
(Page 12)
- b) "High, solid walls on the front boundary disrupts the streetscape and compromise security. They are to be avoided where possible."
c) "Usually front fences are there to define the boundary and perhaps provide security, and it is preferable for them not to screen the development from view. Developments will be more secure if they can bee seen from the street than if they are hidden behind a wall."
d) "If a solid wall is needed because of traffic noise or glare, it is to take up as little of the width of the property as necessary – for example, sufficient to protect a bedroom window only – and is often best also set back from the street alignment."
e) "Normally, though, good design will obviate the need for private open space in the front street setback area. In exceptional cases, however, the only possible location for an outdoor living area for a development will be in the street setback area, and in these cases some part of the area is to be permitted to be screened from view for privacy."
f) "The solid portion of the wall or fence excepting piers is to be a maximum height of 1.2 metres above the adjacent footpath level, with the upper portion of the wall and/or fence being visually permeable, with a minimum of 50 per cent transparency when viewed directly in front of the fence."
28 Further to the SWF policy provisions, there are performance criteria and acceptable development provisions with the aim:
"To ensure that developments are not obscured from view from the street, and vice versa, and the desired character of streetscapes is maintained."
29 The acceptable development criteria require:
"A1.1 Compliance with the Policy relating to Street Walls and Fences and Local Law relating to Fences, Floodlights and Other External Lights."
30 The performance criteria require:
"P1 Front walls or fences constructed so that:
- buildings generally, and especially their entrances, are clearly visible from the street (public,
- communal or right of way, as the case may be) which provides frontage;
- - a clear line of demarcation is provided between the street and development; and
- they are in keeping with the desired streetscape."
31 The Codes also address the question of surveillance under cl 3.2.4 "Surveillance of the Street". The acceptable development provisions require:
"A4. At least one habitable room window of the dwelling has a clear view of the street and the approach to the dwelling."
32 It is clear to the Tribunal that the prime intent of both State and local policy is to achieve relatively open streetscapes within residential areas and where fences/walls are visually permeable above 1.2 metres. The rationale appears to be that such streetscapes are more attractive and achieve a better relationship between the residence and the street, and between residents and their neighbours, as opposed to a "fortress mentality" where residents retreat behind high walls and where home invasion could occur out of sight of neighbour surveillance.
33 This rationale in today's society could well be the subject of public debate and is certainly at odds with the view of the applicants where, in Primrose Street, a high wall is seen as an effective screen against itinerant undesirables.
34 What can be said with regard to the policies is that some allowance is made for a solid wall to protect against traffic noise or glare on highly trafficked roads, or where there is a need for private open space in the front setback area and where there is no alternative location for it. The former is not applicable here, but the latter may well be with the home facing north and with the opportunity to use the front courtyard area in sunlight behind the front gate and out of the view of public gaze.
35 The rear courtyard would, in all probability on most hours of the day and on most days of the year receive limited, if any, sunlight. There is an upper balcony overlooking the street to take advantage of the sun, but this must be accessed via the upstairs bedroom.
36 Of relevance, are the performance criteria of the SWF policy where it could be argued that at least two of the three criterion are met.
(Page 14)
37 As access to the front door is via a series of steps, and the bottom of the door of the two-storey house is only 200 millimetres below the height of the front wall of the building, both the building generally and its entrance are visible from the street. The first criterion is therefore satisfied.
38 The second criterion requires a clear demarcation between the street and the development and, with the construction of the gate and wall, is therefore satisfied. However, the third criterion which requires that the wall should be in keeping with the desired streetscape is arguable.
39 If the argument is that the streetscape should be more open and the wall visually permeable above 1.2 metres then the existing gate and wall do not meet this criterion. However, if the argument is that a relatively new architecturally designed home contributes more to the desired streetscape than the rear of most properties on the north side facing Primrose Street, then the development does meet the criterion.
40 In view of the above observations, it is not possible to conclude that a decision in favour of the applicants would be contrary to all of the relevant provisions of State and local policy.
Orderly and proper planning
41 From an on-site inspection of the subject land, and the remainder of Primrose Street and surrounding land, it appears that the street once served as a rear laneway to those properties facing north to Glendower Street overlooking Hyde Park, and those properties facing south to Bulwer Street.
42 With the growth of Perth and a recognition of the close proximity of the area to the Central Business District and other facilities, and coupled with rising land prices and a density coding of R80, it was inevitable that redevelopment would occur.
43 If in due course, the long term planning intention is that subdivision and redevelopment will give rise to most, or all, sites having frontage to Primrose Street, then the orderly and proper planning of the locality is achieved by progressively achieving this objective. In this context, the existing development on the subject land is in the interests of orderly and proper planning.
44 However, the argument by the respondent is that the front fence and gate are not in the interests of orderly and proper planning but, even in
(Page 15)
- this "micro" context, an assessment must still be made against the broader policy provisions for street walls and fences.
45 As has already been pointed out in [40] above, it is not possible to conclude that a decision in favour of the applicants would be contrary to all the relevant provisions of State and local policy.
Preservation of the amenity of the locality
46 No arguments have been presented in the papers on the amenity of the locality but from on-site observations by the member, it is clear that on the north side of Primrose Street most, if not all, residents gain access to their rear garage or carport via Primrose Street. There are a series of roll-a-doors to garages (presumably for security purposes), as well as high fencing and gates, a car park behind open fencing, and a conglomerate of garbage bins and other incidental items in full view.
47 On the south side, a number of new homes have been built with the property on the corner of Lake Street and Primrose Street presenting well with open side fencing. However, these homes tend to have wide double garages with automatic doors, or carports with visually permeable gates. In some instances (eg: No 9 Primrose Street), the garages have been screened with internal mesh; presumably for privacy and security purposes. Overall, the amenity of the south side of the street exceeds that of the north side.
48 In the view of the Tribunal, it is hard to argue that the existing gate and wall on the subject land would not at least preserve the existing amenity. However, what would be acknowledged is that the existing gate and wall do present as a hard and stark edge to the street and could, and should, be softened in some way.
Undesirable precedent
49 The respondent has argued in [15(f)] above that the existing wall creates an undesirable and negative precedent to the streetscape of the area and the whole of the Town of Vincent.
50 The matter of precedent is addressed in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) wherein it is argued that precedent is not to be treated as a "stand alone" argument, but is but one factor to be taken into account.
51 The Tribunal accepts that there are many instances where an approval in one case is used as a precedent by others to advance similar
(Page 16)
- proposals elsewhere. However, each case needs to be treated on its merits and the precedent argument should not be used to stifle proper judgment.
52 In this particular case, we have a new two-storey home located on a small 178.2 square metre lot with a 9.125 metre frontage. There are no grass verges separating the wall from the carriageway, and vehicles and pedestrians pass close to the gate and wall. There is a small courtyard for the enjoyment of the residents and visitors immediately behind the front gate, and in these circumstances, privacy becomes as relevant a consideration as security.
53 It is not the view of the Tribunal that an approval in this case, having regard to all the circumstances pertaining to this matter, could be readily used as a precedent argument elsewhere and, even if it was, it is but one factor to be taken into account.
A "without prejudice" condition
54 At an Ordinary Meeting of the Town of Vincent, held on 11 April 2006, a draft "without prejudice" condition was agreed to should the Tribunal support the applicants in this review. The essence of the draft condition was:
"… that the fence and gate have at least two (2) significant appropriate design features to reduce the visual impact."
Conclusions
55 In undertaking this review it is clear from the papers on file, and from an on-site inspection by the Member, that the constructed gate and wall do not accord with condition (ix) of the planning approval of 11 June 2002. In essence, the condition required that the solid portion of the front gate and fence be a maximum height of 1.2 metres above ground level, with the upper portion being visually permeable with a minimum of 50% transparency. However, the gate and wall "in-situ" are solid to the full height of 1.8 metres.
56 The applicants claim that the approved drawings accompanying the building licence application showed, in section, a solid front wall. If this is the case, and it appears to be correct from the papers on file and has not been challenged by the respondent, then:
a) the drawings were submitted by the applicants for a building licence contrary to condition (ix) of the planning approval; and
(Page 17)
- b) the drawings were approved by the respondent contrary to condition (ix) of the planning approval.
57 Such a dual circumstance, with both parties in error, is to say the least unfortunate in the context of this review.
58 In considering the planning aspects of this matter, the provisions of both State and local policy with respect to street walls and fences were examined. Of particular relevance are the performance criteria of the SWF policy where the Tribunal believes that at least two of the three criterion have been met by the existing solid gate and wall.
59 In the view of the Tribunal, it was certainly not possible to conclude that a decision in favour of the applicants would be contrary to all the relevant provisions of State and local policy.
60 On the important question of orderly and proper planning, it is usual that these considerations are addressed in a wider context than a gate and a wall. There was certainly not sufficient argument from the respondent to convince the Tribunal that orderly and proper planning had been compromised in this instance.
61 Again, there was certainly not sufficient argument from the respondent that the development caused a deterioration to the existing amenity, particularly when the north side of Primrose Street is taken into account. However, it is acknowledged that the existing gate and wall do present as a hard and stark edge to the street, and should be softened in some way.
62 On the matter of undesirable precedent, it is not the view of the Tribunal that an approval in this case, having regard to its particular circumstances, could be readily used as a precedent argument elsewhere.
63 On balance, the weight of argument falls in favour of the applicants, and the application for review is upheld subject to an appropriate condition to modify the current appearance of both the existing gate and wall.
Orders
64 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is allowed and the decision under review is set aside.
(Page 18)
- 2. The existing gate and fence are to remain as constructed, subject to both the gate and fence having at least two (2) significant design features each added to reduce their visual impact.
3. Details of the design features required by Order 2 are to be discussed by the applicants in consultation with the Town of Vincent within twenty one (21) days of the date of these Orders, prior to being formally submitted to the Town of Vincent for approval within fourteen (14) days thereafter.
4. That in the event of a dispute between the parties following a formal decision by the Town of Vincent required by Order 3, the matter is to be immediately referred to the Tribunal for final determination.
- I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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