Judgment in the matter of Vinall v City of Holdfast Bay & Ors

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Third party appeal by representor - against decision of the Council to grant conditional Development Plan Consent to proposed replacement fence/screen structure, non-significant tree removal and tree retention and erection of free standing alfresco outbuilding adjacent rear domestic swimming pool - Residential Zone - issues of visual amenity and privacy retention to appellant's dwelling and rear yard considered - evidence of expert town planner considered and accepted, including consideration of relevant Development Plan criteria - parties came to in-principle agreement regarding conditions altering the fence/structure during hearing and sought to implement that promptly - Court satisfied proposal not seriously at variance and sufficiently in accord with Development Plan to warrant conditional Development Plan Consent and agreed with varied and/or additional conditions of consent - appeal allowed but only to vary and alter conditions of consent.

Development Act 1993, referred to.

1 This matter concerns a third party appeal by Mrs F Vinall against the decision of the City of Holdfast Bay to grant conditional Development Plan Consent to a proposal (Development Application No. 110/00151/11) comprising, generally:

2 The development proposal (Exhibit A), made under the Development Act 1993, by the second respondents, JF & IM Jacques, concerns the rear of land at 70 Myrtle Road, Seacliff Park in the Residential Zone.

3 Mrs Vinall had been a representor to the Council during the public notification process raising concerns about the visual amenity and privacy implications for her adjoining property to the north.

4 In the presence of the parties, the Court viewed the subject land on the morning of Wednesday, 1 February 2012, as well as both in and from the rear of the appellant’s dwelling and rear yard at 31 Maitland Terrace.

5 The Court received the Council’s book of documents (marked Exhibit R1) setting out the details of the proposal, its assessment, including representation by the appellant (refer Exhibit R1 tab 3) and the reply by the second respondent (at tab 4), as well as the staff report and recommendation to the Council’s Development Assessment Panel and the decision of the Council including seven conditions of consent.

6 I have read and considered the statement of evidence of Mr D Batge, an experienced consultant town planner (refer Exhibit R2), proposed to be called by the respondent Council in its case. As it transpired, he was not required by the parties to be called or cross-examined and nor was he required to do so by the Court.

7 Neither the appellant nor the second respondents who may have intended giving evidence, in fact chose to do so in light of the following events.

8 After the view and further discussions between the parties, on commencement in Court, the Court was informed that in-principle agreement had been reached between the parties subject to three additional matters being resolved and incorporated, in the nature of minor amendments to the proposal and that could and were proposed to the Court to be effected through agreement, by way of varied and additional conditions of consent. Those matters covered aspects dealing with height reduction, backing and painting to the rear of the solid wall/fence facing the appellant’s property and material to obscure the transmission of light from down lights under the alfresco building to the rear of the appellant’s property. Draft conditions were, in due course, agreed by all parties and were found to be satisfactory to the Court.

9 Given the above change in positions, the parties were keen to resolve the matter promptly on the day and the Court had become sufficiently involved in the hearing process and appraised of the matter (having viewed the land and locality, received and perused all relevant documents including the expert statement of Mr Batge), so as to make the decision of the Court without oral examination of the only expert intended to be called, or the calling of the two lay persons to give evidence. As it transpired, that decision happened to align with my assessment, the position of the Council and subject to variation to conditions, the agreed positions of the appellant and second respondents.

10 To confirm and summarise, I have assessed the proposal utilising the conventional approach laid down by case law and I have given due regard to all relevant Development Plan criteria and all relevant matters and find that:

11 The appeal is allowed but only to the extent of varying and adding to conditions of Development Plan Consent. The varied conditions of consent comprise: