//
[2014] WASAT 83
General information, not legal advice.
State Administrative Tribunal (WA)
2014-07-03
Mr P
Original judgment source is linked above.
7 In Coventry Square 2014 at [25] to [29] his Honour said:
... In my view, given the role and significance of cl 4.7.1 of TPS 23 in the determination of the development application, the Tribunal's errors were of a sufficiently material character to vitiate the entirety of the determination.
9 The Tribunal as originally constituted in Coventry Square 2013 now has this matter before it. In addition to the evidence and submissions from the hearings on 28 and 29 August 2013, the Tribunal also has the benefit of the 'Applicant's Submissions for Redetermination' dated 7 February 2014 and the 'Respondent's Supplementary Written Submissions pursuant to the orders of Judge Parry made on 17 January 2014' dated 7 February 2014. The Tribunal also has the 'Applicant's Further Submissions in Reply for Redetermination' dated 14 February 2014 and the 'Respondent's Submission in reply to the applicant's submission for Redetermination' dated 7 February 2014' dated 14 February 2014.
10 The 'entirety' of the decision in Coventry Square 2013 has been vitiated.
11 The Tribunal again has therefore identified, as in Coventry Square 2013, that the issue to be addressed is:
Whether retrospective planning approval should be granted for the 2.1 metre high 'sandstone' Colorbond fence having regard to:
12 The applicant, in its 7 February 2014 submission at paragraph 9, said the Tribunal now should:
9.1 first consider whether, on a plain reading of the relevant provisions, the colorbond fence complies with the amenity requirements contained within TPS 23; and
9.2 if that question is answered in the affirmative, then consider whether amenity requirements contained within non-statutory strategic planning documents nevertheless warrant a refusal of the colorbond fence in the circumstances.
13 The respondent in its submission in reply of 14 February 2014 at paragraph 5 said, and the Tribunal with respect agrees, that the applicant's submission on what the Tribunal should now do '... does not reflect the provisions of TPS 23. TPS 23 requires regard to be had to a range of considerations, including 'orderly and proper planning'.
14 Clause 3.8.1 of TPS 23 relevantly provides that when considering a development application:
shall determine a development application within 30 days following the expiration of the advertising/submission period given under Clause 3.7.
15 The Tribunal considers it would be wrong in again determining this matter to conflate cl 3.8.1(d) and cl 3.8.1(e). This is because reaching a conclusion on the preservation of the amenity of an area does not mean that orderly and proper planning has therefore been satisfactorily addressed and need not be considered. There might be some overlapping elements of consideration, but these two items serve different purposes when considering a development application, as will be discussed below. The Tribunal remains of the view that the issues remain as originally listed, that is, orderly and proper planning, public interest and amenity.
16 Dealing first with amenity, the applicant, in its 7 February 2014 submissions, sought to argue a new ground not articulated at any stage in Coventry Square 2013 or in Coventry Square 2014. The applicant said at paragraphs 35 to 41:
In any case, given the definition of 'amenity' in TPS 23 refers to 'expectations of the residents', the Tribunal cannot, with respect, properly refuse the Colorbond fence (on the basis of a failure to satisfy the amenity requirements under TPS 23) unless it has first considered as to what the residents of Lennon Street actually expect with regard to amenity.
In applying the definition of 'amenity' under TPS 23, it must be borne in mind that s 6 of the Interpretation Act 1984 (WA) provides:
'Definitions or rules of interpretation contained within a written law apply for a construction of the provisions of the written law that can contain those definitions or rules of interpretation as well as to other provisions of that written law'.
'There was no evidence presented as to how the residents' expectations have been expressed'.
Applying ordinary legal principles as to how to defined terms are to be read in planning schemes, it is submitted that the Tribunal cannot properly make a finding as to amenity for the purposes of TPS 23, without first having been presented with evidence as to the amenity expectations of residents.
Relevantly, the Tribunal in the [Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116] case at [21] stated a preference that the views of residents should be considered when matters of amenity are in question:
'In undertaking the objective enquiry as to the character of the area that represents the state of amenity, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. The residents of a locality are often well-placed to identify particular qualities and characteristics which contribute to their residential amenity'.
The applicant submits that if in its redetermination the Tribunal refuses the Colorbond fence on amenity grounds, it will have made an error of law, given that it would have failed to take into account a relevant consideration, being the views of the residents of Lennon Street.
In any case, given the order by Judge Parry in the review decision that the proceeding is to be determined on the basis of the evidence at the hearing on 28 and 29 August 2013, in the absence of evidence regarding the views of the residents of Lennon Street, the Tribunal is unable to make a finding that the Colorbond fence should be refused on amenity grounds[.]
17 The respondent in its 14 February 2014 submissions in reply said, without elaborating, at paragraph 11(b):
It is not open to the applicant to raise this new contention in the proceeding for the first time upon redetermination as it does not arise from the s 244 review, nor the determination by [h]is Honour Judge Parry in DR 436 of 2013[.]
18 The Tribunal considers the applicant raising this argument at this late stage is inappropriate. This is because the applicant did not make its submissions on the definition of 'amenity' in TPS 23 before Judge Parry when it was arguing that the Tribunal in Coventry Square 2013 had made an error of law. Judge Parry was not therefore able to hear argument from either the applicant or the respondent on this point. The Tribunal would also notes that this point was not raised as a legal argument in support of the applicant during the initial hearing.
19 In any event, the Tribunal, with respect, disagrees with the applicant's submission that if the Tribunal dismisses the application on amenity grounds, without knowing the opinions of residents of Lennon Street, it will have made an error of law.
20 Counsel for the applicant appears to have either ignored or failed to recognise that in the preamble to 'Schedule 1 - Interpretations' of TPS 23 are the words:
In this Schedule unless the context otherwise requires[.]
21 The Tribunal also notes that cl 1.11 'Interpretation' of TPS 23 states:
In the scheme unless the context otherwise requires or unless it is otherwise provided herein, words and expressions have the respect of Meanings given to them in the Act, Schedule 1 and the R-Codes and the Building Codes of Australia.
22 The Tribunal is of the opinion that the context of the proposed development requires an interpretation for 'amenity' other than that in Schedule 1. The Tribunal is of the opinion that there can be two parts to amenity in a particular locality, that is, public amenity, such as in this instance of Lennon Street, and internal amenity, which is that which would be experienced from within the residences of Lennon Street: Riede and Town of Vincent [2007] WASAT 209 at [45]. If, for example, the fence on the site was on a boundary common with the rear boundaries of residential lots, then amenity as defined in TPS 23 would be appropriate. The fence, however, is along a boundary which the site shares with the Lennon Street road reserve, which is a public place, and the Tribunal therefore considers it is not critical to know the opinions of residents, when weighing the impact of the development on amenity.
23 The respondent in its 14 February 2014 submissions at paragraph 11(d), stated it is not reasonably possible for evidence to establish 'the sum of the expectations of the residents concerning the quality of their environment'. In this regard, the applicant had referred at the hearing (T:150 29 August 2013) to page 305 of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) in which the comment is made, that whether it is a majority of residents, or only a few that are affected, proper weight must be given to their opinions.
24 In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [18] Barker J stated that the applicant in that matter sought to impugn the member's decision in relation to 'amenity'. At [21] Barker J stated:
The general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed. However, as the State Administrative Tribunal recognised in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48], "in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often wellplaced to identify the particular qualities and characteristics which contribute to their residential amenity". Thus, the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents.
25 The Tribunal notes that in Sunbay in respect to noise as an amenity consideration, Barker J stated at [30]:
... the fact that no objection is made by the present owner of a property which is objectively, detrimentally affected by a proposed development, while potentially a relevant consideration, does not obviate planning consideration of the impact and, where appropriate, refusal of an application in consequence of the impact. Planning law 'is concerned with the use of land - and not with the identity of the user': per Kripps J in Muslim Halloway Society Limited v Canterbury Municipal Council (1983) 51 LGRA 79 at [82]. The identity of those who undertake development and those who are affected by it are likely to change during the lifetime of the development. The task of a planning consent authority including the Tribunal on review, is to consider the objective impact of the development on the existing and, where relevant, likely future amenity of the locality, including impact on adjoining or adjacent properties, irrespective of current ownership arrangements.
26 The Tribunal accepts that if residents' opinions were known, it is required, as set out in Sunbay that regard be had to them, but in the absence of any comment from residents the Tribunal does not accept that the amenity of Lennon Street is no longer a consideration. There being no submissions from residents, is not viewed by the Tribunal as a reason why the development should be approved as a matter of course.
27 The Tribunal notes that the whole of the area of TPS 23 is zoned City Centre. Under TPS 23, Lennon Street and the residences on its northern side are in 'Precinct 1: Lovegrove', which is primarily for residential development. On the southern side of Lennon Street is the site in 'Precinct 2A: Coventry's Central', created by amendment 6 to TPS 23 for the purposes of the development now on the site. The car dealer yard at the western end of Lennon Street is in 'Precinct 2B: Coventry's East and West', established primarily for commercial development and also the subject of amendment 6 to TPS 23, that is, Lennon Street is on the interface between a residential precinct and other precincts primarily established for non-residential development.
28 Some precincts within TPS 23 currently have little or no residential development, such as Precincts 2A, 2B, and 'Precinct 12: City Centre', to the south of the site and 'Precinct 3: Wellington', to the east. The Tribunal considers the impact of a development on amenity must remain a consideration under TPS 23, despite the absence of residents' views, to achieve the objectives of attractive public spaces within the City Centre zone required both under TPS 23 and the non-statutory documents prepared to guide the development of the TPS 23 Scheme Area.
29 It is this context that the Tribunal considers it is necessary to consider the impact of a development on the locality, particularly considering that the whole of the southern side of Lennon Street has a non-residential character. The impact of non-residential development on a streetscape that includes residential uses is a proper, if not essential, planning consideration. This is particularly so in circumstances where the streetscape impact will remain, while the identity of the residents will change over time, as referred to in Sunbay at [30].
30 In this context, the Tribunal is of the opinion that it is not the definition of amenity in TPS 23 that must be strictly adhered to, as this would not permit any consideration of the impact of the development on the local amenity. The Tribunal is of the view that the appropriate test for amenity is as established in Tempora and Sunbay.
31 It bears repeating at this point that cl 4.7 'Urban Design' of TPS 23 under cl 4.7.1 commences:
Where in the opinion of the Council the amenity of a place, street or locality relates significantly to the architectural or physical character of existing buildings and/or the landscape...
32 The Tribunal is of the opinion that the amenity of Lennon Street currently relates to the landscape and the architecture and physical character of the existing buildings, and previously, the same factors were also relevant to the amenity of Lennon Street.
33 In its submissions of 7 February 2014, at paragraph 23, the applicant listed a series of facts that were established by the evidence of the planners and during the viewing of the site. The applicant then goes on to submit at paragraph 24:
Based on existing witness evidence filed at the Tribunal and on the findings of fact made by the Tribunal in the original decision, the applicant submits that the amenity of Lennon Street (prior to the Coventry Village development being carried out) did not relate to the landscape or to the architecture and physical character of existing buildings and that there is no evidentiary basis of such a conclusion.
34 The Tribunal, with respect, rejects this contention of the applicant. The Tribunal has formed its view after reconsidering the submissions made and the evidence of the experts at the hearing on 28 and 29 August 2013.
35 In opening on 28 August 2013, Mr McQueen, counsel for the applicant referred to the fence, said to be at the 'rear' of the property on Lennon Street as being appropriate, 'given the surrounding environment, which is residential, which use[s] Colorbond fencing, and indeed it is better than the razor wire ... on the other side of the public lane' (T:49 and 50; 28.08.13). Counsel referred to photographs and the statement of Mr Wilkes, the town planner called by the applicant, which were said to highlight some of the points made.
The last point I would make on amenity is that, of course, the appropriate way in which this fence needs to be assessed is against the existing amenity, and to consider the proposed development and then to conclude whether it is a positive, neutral or negative impact on the existing amenity. And our evidence will be that at worst this is neutral but at best is a positive impact. The last submission I will make in terms of the approach which the Tribunal should adopt, with respect, and I can further elaborate on this in closing, is that this is not about comparing one type of fence with another and seeing whether this is the best form of fence that could be built. (T:51; 28.08.13)
37 Mr Wilkes, Mr Croudice, the landscape architect called by the applicant, and Ms Smith, the planner called by the respondent, gave concurrent evidence. In his examination of these witnesses, on day two of the hearing on 29 August 2013, Mr McQueen asked Mr Croudice to give a virtual tour, along the route of the walk taken at the viewing, starting at the eastern end of the pedestrian accessway and then along Lennon Street. Mr Croudice was asked to describe and give an opinion on the streetscape and Ms Smith and Mr Wilkes were asked to comment. Counsel said '[W]hat I am essentially getting at here is, as experienced planners and landscape architect ... you would understand that the starting point ... is to look at the existing amenity of the area'. (T87: 29.08.13)
38 Mr Croudice referred to photographs provided and noted that in the walkway there was the fence on the site boundary and opposite a chain link fence with razor wire, the side of a dwelling and a section of fibre cement fence. He commented on the Hardenbergia comptoniana, a flowering climber that was growing through and over the Colorbond fence along the walkway. The Tribunal noted that the experts were identifying the amenity of the walkway by the physical character of existing structures and the type of planting that was visible.
39 Mr Croudice then moved to Lennon Street. Mr McQueen asked Mr Croudice what he considered to be the existing amenity of Lennon Street, having regard to both the left hand, southern, side and the right hand, northern, side of Lennon Street. In Mr Croudice's opinion, on the southern side of Lennon Street, mature trees contributed to the amenity of the area significantly and formed the primary amenity of the street. When viewed along the street the trees were said to break up the line of the fence and dominate the view. He considered the loss of these trees would have a severe impact on the amenity of the residential streetscape, regardless of the fence type. In respect to protecting the roots of the trees, Mr Joshua Gomboc, manager of Building Services for the City, gave evidence that, in his experience, if the fence was to be varied in either materials or alignment, then the design could be considered to minimise damage to the trees.
40 On the other side of the street, Mr Croudice referred to power lines affecting the street trees, the material in side fences and boundary fences that fronted onto Lennon Street and the presence of houses with no front fence.
41 Mr Wilkes said he observed a variety of fencing materials and the existence of the power lines as essentially to the detriment of the amenity of the area.
42 Ms Smith commented on the absence of footpaths, the series of mature native trees on the verge and their canopies above the fence. Ms Smith said that on the northern side of Lennon Street were homes, predominantly brick and tile and predominantly open to the street. Ms Smith referred to the side fences of corner houses which also were erected along Lennon Street. Each of the witnesses referred to the brick building and chain mesh fence at the rear of the McInerney site, at the western end of Lennon Street.
43 Counsel for the applicant said (T:98; 29.08.13) that the next step was to place the existing fence for which approval is sought into that streetscape. Each of the witnesses was asked to say whether they considered there would be a positive, neutral or negative impact on the streetscape. Mr Croudice concluded that the fence, if well maintained, would have a positive affect (T:99; 29.08.13). Mr Wilkes was of the opinion that the fence would have a neutral impact and additional landscaping would positively contribute to the landscape (T:99; 29.08.13). Ms Smith was of the view that the fence in that particular location would have a detrimental impact on the streetscape because of the long length and it being unrelieved by any sort of interest or variety. Comment was made that any landscaping would improve the streetscape because it would be consistent with the houses on the other side (T:100; 29.08.13).
44 Counsel for the respondent, asked the witnesses for their opinions on the impact of the double garage doors and the contribution they made to the streetscape (T:116; 29.08.13). Each of the witnesses again was asked about, and gave their professional opinions, on the style of fencing associated with the houses on the north side of the street, the impact of the trees and the impact of the Colorbond fence applied for.
45 In closing, counsel for the applicant provided a copy of Tempora and with a quote from Tempora stated (T:148, 149; 29.08.13):
The Tribunal must first determine as a matter of fact the objective character of an area that represents the present state of amenity.
Now that is not an aspirational character; desired, planned, contemplated. It's the actual character of the present state of the amenity. And that's very important in this context. It then says:
[T]he description of the area may encompass any aspect of the built environment, the flora, the environmental quality, and the combined effect of elements to produce a similar aesthetic, safety or other factor, which established a sense of place.
Now, we've heard extensively from the experts about the existing character of the area. There are some Colorbond fences, there are some chain mesh fences, and yes, there is some masonry fences, of average quality. There is some poor quality housing. There are some disused buildings and there are some average project-home type residences; homes for people of a reasonable quality. But what seems to really define the street, on our side, is the vegetation and the trees. And that's, probably, the most positive aspect of the whole street. Contrast that on the northern side of the street with the power lines, and the average housing.
So it is against that background that the fence, as it currently exists, needs to be understood. Because you will see in the second last paragraph of page 304, that the second step is to determine the manner in which the proposed use may affect the existing amenity. A use may, for example, cause increased traffic noise, odours, result in an intense level of activity, (indistinct) have a distinct impact, and then, the third and concomitant enquiry is the degree to which the new use will have an effect on the existing amenity, of an increase or decrease.
Now, I think, overall, my summation of the evidence is that the Colorbond fence is entirely consistent with the type of amenity that currently exists, certainly better than some aspect of it - the chain mesh fencing. And it is highly neutral, or it may be said to add a slightly positive benefit. But it is certainly not detrimental. And even if it is detrimental, then it would have to be detrimental in a very minor degree, it's not so detrimental to say that the degree in reduction of amenity is such as to warrant the refusal of this application (T:149; 29.08.13).
46 The Tribunal had the benefit of the detail of the expert witnesses' statements, which included photographs, the opinions offered by the witnesses when being examined, which of course was more complete than the summary given above, and of the view of the site made on the first day of the hearing. The Tribunal rejects completely the submission of the applicant at paragraph 24 of its 7 February 2014 submissions cited above. The Tribunal is of the opinion that the amenity of Lennon Street, relates significantly to the architectural or physical character of existing buildings and/or the landscape.
47 The streetscape on the northern side of Lennon Street includes Colorbond side fences at corners and average quality masonry front fences. The Tribunal notes that each of these elements contributes to the streetscape but no single feature dominates. The houses are modest and all the houses that front onto the street have either no front fence or a visually permeable front fence revealing front gardens. The Tribunal is of the view that the northern side of Lennon Street overall contributes to a residential appearance of the visual character of the Lennon Street streetscape and singling out instances of specific materials, cannot lead to any other overall appearance. The Tribunal, with respect, would adopt the findings of the Tribunal in Optus Mobile Pty Ltd and Town of Vincent [2006] WASAT 179 at [84], that the presence of discordant elements in the locality, will not support a proposal if it is found that a proposed development will have a negative impact on visual amenity: (cited in Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238).
48 From the evidence presented and the submissions of the parties, the Tribunal is of the opinion that the amenity of Lennon Street is related to, and continues to significantly relate to, 'the architectural or physical character of existing buildings and the landscape'. The 'condition precedent' to the application of cl 4.7.1 of TPS 23 is therefore established.
49 Clause 4.7.1 of TPS 23 provides that if the Council (or the Tribunal on review) is of such an opinion:
... the Council shall require that the appearance of any proposed development shall enhance the amenity of the place, street or locality in question.
50 The applicant stated at paragraph 27 of its 7 February 2014 submissions that:
The definitions of 'enhance' contained in the Oxford English Dictionary include:
27.1 raise the level of;
27.2 appear greater; and
27.3 increase in attractiveness.
51 One of the applicant's arguments is that all that is required is simply enhancement. When reduced to a comparison between the former chain mesh fence and a Colorbond fence, then as required by cl 4.7.1, the street is enhanced, compared to what it was when the chainmesh fence was in place on the site boundary.
52 The Tribunal would comment that if it were simply just a comparison of fences, then a new chain mesh fence would be an enhancement over the apparently rusting and aged former chain mesh fence. The fence, however, is part of, and cannot be separated from, what was once beyond the fence on the site and the development approved for the site as whole which includes a large building used as a market and a large car park.
53 As a general comment, assessment of amenity impact of a development might include elements such as, some of which are interrelated, and in no particular order, noise, dust, odour, glare, light spill, vegetation, landscaping, change in levels, scale, bulk, setback, height, overlooking, overshadowing, traffic, parking, waste management, opening hours, building design and materials. The contribution of a development to visual amenity is a critical consideration. If the Colorbond proposed fence does not contribute positively to relevant amenity consideration, when viewed as part of the overall development and use of the site, then it must be refused.
The Tribunal would comment that if the only test were to compare the amenity impact of the Colorbond fence against that of either the previous chain mesh fence or no fence, then the Colorbond fence would be acceptable because it reduces the impacts from the markets carpark on the residents of Lennon Street.
There was no dispute that, for the residents of Lennon Street, the Colorbond fence provided a visual barrier to a view of the carpark and prevented light spill from the site.
The Tribunal also determined that the fence provides a sufficient noise barrier between the site and the houses in Lennon Street[.]
54 When viewed in this light, the Tribunal finds that the Colorbond fence would enhance the Lennon Street streetscape by ameliorating the amenity impacts of the development on the site and enhance what would have been the contribution of the former chain mesh fence to the amenity of Lennon Street, prior to November 2011. As stated by the respondent at paragraph 5 in its submissions of 14 February 2014, this interpretation of amenity is 'unduly restrictive and mechanical', but in the absence of a basis of weighing 'degrees of enhancement' when looking at amenity, the Tribunal has reached this conclusion.
55 At this point the Tribunal considers it should refer again to cl 3.8.1 of TPS 23, set out in full above, which requires at cl 3.8.1(e) that in considering a development, consideration must be had to 'preservation of the amenity of the area'. In light of the Tribunal's conclusion on cl 4.7.1 of TPS 23, the Tribunal is obliged to find that the fence would at least satisfy the requirement of cl 3.8.1(e) of TPS 23.
56 The Tribunal does not consider, however, that that is the end of the matter. The respondent in its submissions of 14 February 2014 at paragraph 9(c) states, in the context of a comment that the respondent did not rely on cl 4.7.1 of TPS 23 at the hearing:
While the Colorbond fence is better than the former chainmesh fence, it does not follow that it must be approved. Almost any non-permeable enclosure of the Coventry's site would be an improvement on the chainmesh fence, but not every enclosure is necessarily acceptable when all relevant planning considerations are weighed up.
57 As stated above, the Tribunal has found that in considering cl 3.8.1 of TPS 23 conflating amenity assessment and orderly and proper planning would not be consistent with the intent of determining the merit of a development. Clause 3.8.1(d) provides, that when considering a development application the Council, and the Tribunal on review, has to have regard to the requirements of orderly and proper planning.
58 At cl 1.10 'Scheme objectives' of TPS 23 it states:
For the purpose of promoting the orderly and proper planning, development and management of the Scheme Area the objectives of the Scheme shall be as set out in this Clause.
59 At cl 1.10.1 the general objectives of TPS 23 include:
60 In Coventry Square 2013 the Tribunal emphasised visual amenity, which is one of the factors which together, assist in determining the amenity impact of a development. This arguably tied the assessment of the development applied for only to the conclusion reached on amenity. When addressing orderly and proper planning, as required under TPS 23, the Tribunal should properly have addressed 'visual quality' which, the Tribunal considers, requires the development to be weighed against the objectives and intent, as set out in the planning instruments prepared for the Morley City Centre.
61 Judge Parry, in Coventry Square 2014 at [32]-[33] stated:
Furthermore, although the Masterplan, the Amendment 6 Scheme Report and the ODP are strategic planning documents forming part of the planning framework, they are not, unlike TPS 23, statutory planning instruments. A provision of a statutory planning instrument (if applicable) generally occupies a more significant position in the planning framework than strategic planning documents. However, I do not accept the submission put by Coventry in its responsive submissions that the failure to satisfy the Council's planning intentions of enhancing local amenity as expressed in nonstatutory strategic planning documents cannot 'constitute a basis for refusal unless this intention is expressed in an applicable local planning scheme'. The nonstatutory planning documents also form part of the planning framework, although they are at a lesser level in the framework than a provision of a local planning scheme. Whether the provisions of nonstatutory strategic planning documents warrant the refusal of a particular development application involves the exercise of planning discretion which also requires an assessment of the development application in the context of the applicable statutory planning instrument or instruments.
Finally, it is unknown whether the Tribunal would have refused to grant development approval for the fence having regard to the non-statutory strategic planning documents had it considered and determined that the condition precedent to the application of cl 4.7.1 of TPS 23 was not established. Particularly given the role and status of statutory planning instruments in the exercise of planning discretion, it cannot be assumed that the Tribunal would have refused to grant development approval for the fence had it determined that cl 4.7.1 of TPS 23 does not relevantly require that the fence enhance the amenity of the place, street or locality.
62 There was no dispute between the parties that planning approval was required for the boundary fence, which adjoins and faces a public street: cl 3.5(k) of TPS 23. As the fence requires planning approval, then it is necessary to determine the merits of the proposed development. Nothing in the applicant's submissions of 7 February 2014 and 14 February 2014 has persuaded the Tribunal that an approach, different from that expressed by Judge Parry in Coventry Square 2014 at [33], is appropriate in the exercise of discretion in weighing the merits of the proposal.
63 Clause 4.4.1(i) of TPS 23 provides that when considering non-residential development, regard shall be had to 'the height, position, form and materials of fences ...'. In this matter the development is a fence, but it is associated with a commercial development, the Coventry Markets, and abuts a public street in a residential precinct. This boundary might be the 'rear' of the site, relative to the view toward the market development from Walter Road West, but it fronts onto, and is a significant streetscape element, on Lennon Street.
64 In Coventry Square 2013 at [72], the Tribunal found that:
... the Colorbond fence is a long, high, straight, utilitarian structure and does not include a 'level of interest'.
65 The Tribunal remains of that opinion. The fence therefore is, in the opinion of the Tribunal, low quality urban design.
66 The Tribunal notes that the specific objectives for the City Centre zone include at cl 1.10.2(l) of TPS 3:
... to create a visually attractive locality in the Scheme Area with appropriately scaled streetscapes and other elements, providing a diverse but unified urban townscape and landscape characterised by high quality urban design[.]
67 The Tribunal has found that there are no particular circumstances that would enable Lennon Street to be distinguished from the planning objectives of cl 1.10.1(g) and cl 1.10.2(l) of TPS 23. In light of the Tribunal's assessment of the fence, the Tribunal considers that these objectives would not be achieved by the development for the reasons that follow.
68 In Coventry Square 2013, the Tribunal made reference to 'non-statutory' planning documents. The Morley City Centre Masterplan (Masterplan) is one such document. The Masterplan, endorsed October 2010, can be described as indicative and aspirational. The purpose of the Masterplan is stated to be:
The Morley City Centre Masterplan provides a guide to future development within the Morley City Centre. It provides the starting point for further strategic and design work such as community building, transport and infrastructure planning and upgrades, implementation strategies, environment and landscape planning, design guidelines and policies and streetscape enhancement.
The Masterplan provides a vision and context for individual projects in the City Centre. The success of the City Centre will ultimately depend on the delivery of great design in each of the projects.
69 The Masterplan at page 52 refers to 'critical urban design principles' and the need for 'a more attractive, active and cohesive built environment in the city centre'. Page 56 states that '[r]epairing the streets through careful design of the public and private interface will integrate and redefine the character of the Morley City Centre'.
70 As stated above, all land within the area of TPS 23, including the site, which is in Precinct 2A, adjoining Precinct 1, which includes Lennon Street, and precincts 2B, 3 and 12 which abut the site, is zoned Morley City Centre, except for several lots that do not affect the site which are reserved for a specific purpose.
71 The Mastereplan, at page 52 refers to a 'simple planning framework' that 'requires more detailed assessment of the functionality, impact and design quality of individual development proposals'.
72 In this respect, the Tribunal was assisted by the Outline Development Plan (ODP) for Precinct 2A adopted by the respondent. The applicant, at paragraph 65 and 65.1 of its 7 February 2014 submissions, again said that the Tribunal should keep in mind the ODP, was not written by the respondent but was written by the applicant, in line with the applicant's development expectations at the time the ODP was drafted.
73 The Tribunal found in Coventry Square 2013 at [47], and as stated by the respondent in its submission of 14 February 2014, that once the respondent adopted the ODP it became a relevant planning instrument and the author of the ODP was irrelevant. The Tribunal considers any implication there might be, by the applicant's submission, that the ODP should now be afforded less weight, because the applicant who was the author, now may have different development expectations, has no rational planning basis. If the applicant wants a different ODP adopted, then it is open to it to prepare such a document and submit it to the respondent for consideration.
This landscaping is also proposed to include a masonry/tilt-up screen wall to a height to a height of up to 2.0 metres, which will be designed with architectural articulation to provide a level of interest.
75 Clause cl 5.4.4(a) of TPS 23, requires development to be 'generally in accordance' with the ODP prepared for Precinct 2A, and therefore achieve the objectives for TPS 23. At [27] and [28] of Coventry Square 2013, the Tribunal, after considering authorities, cited with approval from Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 at [9] to [13]:
...
'Generally in accordance' does not require the proposed development to be identical to that described in the development or master plan; and it is appropriate to read the development or master plan as a whole when making this assessment. ...
...
Rather, the question before us is whether the departures identified by the responsible authority are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the approved development plan[.]
76 This Tribunal is of the opinion that the proposed fence along Lennon Street would be a significant departure from the ODP, because it is not a fence 'designed with architectural articulation to provide a level of interest.' The fence would not achieve this important objective of the ODP.
77 As set out above, the Tribunal is of the opinion that the fence is a 'long, high, straight, utilitarian structure and does not include a 'level of interest'. The Tribunal considers the fence to be low quality urban design and that it does not therefore satisfy the planning objectives for the City Centre zone as required by cl 1.10.1(g) and cl 1.10.2(l) of TPS 23. The Tribunal has concluded that therefore the fence would not be consistent with orderly and proper planning.
78 The respondent raised, and the Tribunal has considered, 'public interest' as an issue. As set out more fully at [38] to [41] in Coventry Square 2013, the respondent had expressed concern that the applicant had earlier said in writing it was seeking a temporary approval for the Colorbond fence and, when the period granted was over the approved masonry fence would be built. The respondent considered it would not be in the public interest for of the applicant to 'resile from that undertaking'.
79 The Tribunal found that, notwithstanding the background and the fact that there was in place a planning approval with a condition requiring the construction of a masonry fence and the applicant had only sought temporary approval for a Colorbond fence, it was open to the applicant to apply for a subsequent approval for a Colorbond fence (Coventry Square 2013 at [42] to [46]). The Tribunal found in Coventry Square 2013 that the circumstances of the application for review of the development refusal did not raise an issue of 'public interest'.
80 The Tribunal noted that public interest as an issue was not addressed in the respective submissions of the parties before Judge Parry and was not raised in the parties' subsequent submissions in February 2014. The Tribunal has concluded that an element of 'public interest' has not been established in the circumstances of this matter and does not provide a basis for refusing the application.
81 The orders of Judge Parry in Coventry Square 2014 required the Tribunal, as previously constituted, to again consider the planning merits of the proposed fence on the site, in accordance with the law. Judge Parry ordered that the:
... proceeding is to be determined on the basis of the evidence, submissions and view at the hearing on 28 and 29 August 2013 and any written submissions filed in accordance with the preceding orders, without any further hearing.
83 The Tribunal first found it would be wrong in again determining this matter to conflate cl 3.8.1(d) and cl 3.8.1(e) of TPS 23. This is because reaching a conclusion on the preservation of the amenity of an area, does not mean that orderly and proper planning has therefore been satisfactorily addressed and need not be considered.
84 In respect to the consideration of amenity as provided at cl 4.7.1 of TPS 23, the Tribunal found that the amenity of the place related significantly to the physical character of existing buildings and the landscape. Further, the context of the fence on a street frontage at the boundary between two precincts meant that, the test for amenity was not constrained by the definition of amenity in TPS 23, but was more appropriately tested as provided for in Tempora and Sunbay. The Tribunal has found that the Colorbond fence, in place of an aging chain mesh fence, would enhance the amenity of Lennon Street. This conclusion leads to the related conclusion that the fence would also at least preserve the amenity of the area, as required by cl 3.8.1(e) of TPS 23.
85 The Tribunal then had regard to the requirements of orderly and proper planning. The Tribunal weighed the development proposal against the planning objectives to be found in TPS 23 and the related non-statutory planning instruments. The Tribunal has concluded that the fence does not satisfy, in particular, the planning objectives of the Masterplan, the ODP and TPS 3 which lead to the requirement to assess the visual quality of the development.
86 The Tribunal concluded that the fence is 'a long, high, straight, utilitarian structure and does not include a 'level of interest'. The Tribunal has found that the fence along Lennon Street and the walkway, was not consistent with orderly and proper planning, because the planning objectives of the planning framework would not be achieved.
87 The Tribunal has decided to dismiss the application because the fence would not be consistent with the requirements of the orderly and proper planning of the Morley City Centre.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 183
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 7
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Optus Mobile Pty Ltd and Town of Vincent [2006] WASAT 179
Riede and Town of Vincent [2007] WASAT 209
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
(2006) 150 LGERA 116