Dilatte & Anor v MacTiernan [2002] WASCA 100

Dilatte & Anor v MacTiernan [2002] WASCA 100 - WASCA 2002 case summary — Zoe

[81]

"The application proposes to incorporate the existing dwelling into a substantial redesign which includes a second storey, proposes to extend the building well forward of the existing building line and to create a new façade. The overall development will significantly transform the character of the existing building.

A similar application for alterations and additions was the subject of a previous application to the Town and an appeal to the former Minister for Planning. It appears that the key issue on this earlier appeal was whether or not variations should be granted in relation to the proposed side setbacks to the second storey. The second storey requires 3.0 metre side setbacks under the Town of East Fremantle Town Planning Scheme No 2 (the Scheme) but only 1.6 metre setbacks are proposed to both side boundaries. The Town refused this proposal on the basis that the reduced side setbacks would obstruct the views of adjoining neighbours at the rear to the Swan River. The former Minister, however, determined that such variations would have only a minor impact on such views and upheld the appeal.

The current proposal is generally the same as that which was the subject of the previous appeal, with the exception that the building is now to be extended further to the front boundary, to a minimum of 7.5 metres at the eastern wing, with a balcony cantilevered 1.2 metres into the 7.5 metre setback, and to a minimum of 8.0 metres at the western wing. The Scheme requires a minimum front setback of 7.5 metres.

While the only variation to the plan previously approved by the former Minister relates to the front setback, the current proposal still forms part of a new application to the Town and it is therefore necessary for me to consider it in its entirety. In doing so, my conclusions are not the same as the former Minister.

I have accepted the advice from the Town that the proposed variations to the side setbacks and the resultant loss of views to the Swan River from neighbouring properties will have a significant amenity impact on those neighbours. This is reinforced by the objections submitted. In the case of the neighbour to the south-west, I am of the opinion that the eastern side setback variation will have a significant impact on the last remaining view corridor to the river from their rear balcony. While I accept generally that there is no right to a view, I note that the Scheme makes provision for the protection of views, in the case of residential development, through clauses 3.1.1(a) and 5.3.1(b). I am also of the opinion that where a variation to a standard of the Scheme is sought, it should only be permitted where it maintains the objectives of the Scheme, which include preserving the amenity of the district. In this case, I do not believe that the reduced side setbacks meet the Scheme objectives.

I also believe that some alternative design could have been considered to preserve the views of the western side neighbour. While the obstruction to the views of this neighbour will occur without any variation to Scheme requirements, the proposed extension of the western wing will eliminate any hope of retaining a reasonable view to the river. I believe you should have had some regard to this when considering your design options.

It has also been brought to my attention that the proposed building height does not comply with a height restriction that has been placed on the title through a restrictive covenant, although it does comply with the height limit in the Scheme. I accept that it is not the responsibility of the Town, nor me on appeal, to ensure compliance with the requirements of a restrictive covenant but you should be aware that the rear neighbour, the beneficiary of the covenant, might pursue this matter in the relevant court.

Having fulling [sic] considered the detail of the application before me, I have decided not to support the side setback variations to the proposed second storey due to the impact such variations will have on the views from surrounding properties. I also consider the proposed extensions to be generally insensitive to the amenity of surrounding lots and believe they should be reconsidered to minimise their impact.

Accordingly, your appeal is dismissed."

[110]

"In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement. Whatever may be the cause, the not infrequent result has been a general embargo or fetter upon the exercise of the individual's private or proprietary rights unless he obtains the sanction of the public authority. When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control."

[112]

"The statutory provision which gives to the Commission the discretionary power of consenting to the transfer contains no statement of the matters which the Commission is to take into consideration in exercising the power. It contains a prohibition against transferring an irrigation-farm lease except with the consent of the Commission and proceeds to say that the grant or refusal of the application for consent shall be entirely in the discretion of the Commission. But there is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view. No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent. And I agree with the view expressed by Jordan CJ that the use of the word 'entirely', while it indicates that the discretion is meant to rest in the Commission alone, does not necessarily indicate that it is intended to be arbitrary and unlimited, although I hardly think Shrimpton v The Commonwealth [(1945) [1945] HCA 4; 69 CLR 613] which his Honour cites, is much to the point, having regard to the constitutional limitations upon the operation of the word 'absolutely' there considered: See Dawson v The Commonwealth [(1946) [1946] HCA 41; 73 CLR 157] and Miller v The Commonwealth [(1946) [1946] HCA 42; 73 CLR 187]. But, though the discretion is neither arbitrary or completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power (Swan Hill Corporation v Bradbury [(1937) [1937] HCA 15; 56 CLR 746 at 757, 758]. But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission's refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission's discretion?"

[114]

"... in its application, there has been considerable diversity in the readiness with which courts have found the test to have been satisfied: cf, eg, Wednesbury Corporation [[1948] 1 KB at 230], and Parramatta City Council [(1972) 128 CLR at 328], with the conclusions reached in South Oxfordshire District Council v Secretary of State for the Environment [[1981] 1 WLR 1092, at 1099; [1981] 1 All ER 954 at 960]; Shoreham-By-Sea Urban District Council [[1964] 1 WLR 240; [1964] 1 All ER 1]; and Minister of Housing and Local Government v Hartnell [[1965] AC 1134, at 1173]. But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell [(1950) [1950] HCA 52; 81 CLR 513, at 519]; Gronow v Gronow [(1979} [1979] HCA 63; 144 CLR 513, at 519-520, 534, 537-538]; Mallett v Mallett [(1984) [1984] HCA 21; 156 CLR 605, at 614-615, 622]. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

(e) The principles stated above apply to an administrative decision made by a Minister of the Crown: Murphyores Incorporated Pty Ltd v The Commonwealth [(1976) [1976] HCA 20; 136 CLR 1]; Re Hunt, Ex parte Sean Investments Pty Ltd [(1979) [1979] HCA 32; 53 ALJR 552; 25 ALR 497]; Padfield v Minister of Agriculture, Fisheries and Food [[1968] AC 997]; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [[1977] AC 1014]. However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion."

[155]

'Thank you for the opportunity to respond to the Appeal AP02101.01L lodged by Mr Tony di Latte in relation to his property at 132 Preston Point Rd, East Fremantle.

This is the third application that Mr di Latte has made to develop his property since late 1998. His first application failed to gain an Absolute Majority vote at Council, and so was referred to the Minister, who upheld the Appeal in July 1999. We made comment on this first proposal in relation to the loss of views which we will experience should these plans be constructed, but supported the proposal overall as discussions with the then Town Planner, Greg Smith, led us to believe that opposing the plans might cause Mr di Latte to seek to build even further forward into his front setback.

Mr di Latte presented drawings to Council Officers early last year, seeking to build the Ministerially approved plans. However these drawings varied so greatly from the Minister's Approval that the drawings were treated as a second planning application. These plans - on which we, and other neighbours, again commented - failed at Council.

Mr di Latte submitted a new - third - set of drawings for consideration at the November 2000 meeting of Council. Again we, and our new neighbours, the Doveys, commented on the plans. Again, they failed at Council.

Each time Mr di Latte approaches Council with plans, he presents the same concept, only bigger. It is as though his initial success has spurred him on to seeking greater and greater relaxations, and in turn leading to greater and greater encroachments on the amenity and views of his neighbours.

I have enclosed a copy of our letter to Council concerning Mr di Latte's third application - the one which is currently before you - as it best sums up our response to the whole affair, and reiterate that this is a proposal which will have a negative impact on us, and our neighbours, in relation to setbacks (and therefore amenity) as well as views and property value.

We would be grateful if we could meet with a member of the Town Planning Appeal Committee when the matter reaches that level."

[159]

"We requested a meeting with the Member/s of the Appeals Committee for two reasons:

to show the effects of the proposed development on both our property and on the streetscape in our immediate neighbourhood; to point out the recent history of development in our area, which this application seeks to completely override.

In relation to the first point, it would not be difficult to show onsite the negative impact this proposal will have on our property. It will project some 4.5 metres in front of our home, and be very close to the side boundaries (relaxations are being sought for this). Not only will we suffer a significant loss of city views from upstairs and downstairs living areas (and suffer associated loss of property value), but our morning solar amenity will be vastly impacted upon (as the Heritage Planner's Report states) as 132 will be at least as tall as our home, further in front, and very close. We also wished to show the Member/s that this part of Preston Point Road has almost uniform front boundary setbacks - at between 12.0 and 12.5 metres - nothing like those proposed by diLatte, even though they fall within the guidelines of the Town of East Fremantle's Town Planning Scheme 2.

In relation to the second point, we had wanted to show that developments which have been undertaken in this part of Preston Point Road in the last ten years have not been moved forward of their original front setbacks, or if they have, not forward of adjacent homes. We would have shown the Member/s three homes very close to our own which, when they were developed recently, we [sic] not permitted by Council to move forward of their original front set-backs. (This same requirement also applied to our own home which was developed in the late 80s/early 90s.) We would have also been able to show one multiple residential development which does not sit forward from its neighbours, and another home, very recently developed, which sits barely in front of the general front setback in this part of Preston Point Rd. All this in about 300 metres.

Finally, we would have attempted to show that while diLatte has the right to move the front of his home to as close as 7.5 metres from his front boundary, this is not desirable. The move would induce the domino effect, which would ultimately cause the total loss of the original 1960s housing stock in this part of Preston Point Road, would cause the loss of sense of open space and garden landscape along the Road, and, in fact, would create unpleasant living conditions for all residents: Preston Point Road is a constantly busy road, and therefore noisy. DiLatte does not know about this - he has never lived at his property. We do not want to have to move our home further forward to recapture lost amenity, views and value. (We do not need to do this either - the Member/s would have seen that with three living areas, a study, three bedrooms, two bathrooms ... our property has gone as far as it sensibly ought to go.) Furthermore, any attempt by us to recapture our loss of amenity will only mean loss of amenity to other neighbours.

We are hopeful of putting our points to the Member/s in person on site, as are our neighbours, the Doveys, of Locke Crescent."

At a glance

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Judgment (173 paragraphs)

Dilatte & Anor v MacTiernan [2002] WASCA 100 (1 May 2002)

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Legislation Cited (1)

Cases Cited (29)