Allen and Shire Of Augusta-Margaret River
[2007] WASAT 103
•10 MAY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ALLEN and SHIRE OF AUGUSTA-MARGARET RIVER [2007] WASAT 103
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 10 MAY 2007
FILE NO/S: DR 236 of 2006
BETWEEN: SERENA ALLEN
Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Town planning - Application for development approval - Amenity - Orderly and proper planning - Child care centre - Need for a community facility day care centre - On site parking - Indoor and outdoor space - Traffic impact assessment - Noise impact assessment
Legislation:
Children and Community Services (Child Care) Regulations 2006 (WA), cl 32
Interim Development Order No 16, cl 6
Planning and Development Act 2005 (WA), s 252(1)
Shire of AugustaMargaret River Town Planning Scheme No 11, cl 2.4, cl 4.4.2, cl 4.4.3, cl 4.4.3(a), cl 4.4.3(c), Table 1, cl 4.4.4, cl 4.4.6, Appendix III
State Administrative Tribunal Act 2004 (WA), s 31, s 31(3), s 32(3)
Shire of AugustaMargaret River District Town Planning Scheme No 1 (Proposed), cl 3.7, cl 3.7.1
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr M Swift (Acting as Agent)
Respondent: Ms C Gleeson (Acting as Agent)
Solicitors:
Applicant: Michael Swift & Associates (Town Planners)
Respondent: Shire of AugustaMargaret River
Case(s) referred to in decision(s):
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
Rajneesh Foundation of Australia v Shire of Manjimup No 2 (1985) 3 SR 65
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Shire of Augusta–Margaret River to refuse an application for development approval for the conversion of, and additions to, an existing dwelling for the purpose of a child care centre for 20 children in Waverly Road, Cowaramup.
The Tribunal had regard to the arguments of the parties, the background to and modifications to the original proposal, legislative and policy considerations, reactions from neighbours to the original and modified proposal, and matters of traffic and noise.
Although the Tribunal did not support the rationale behind a number of the reasons for refusal by the respondent, it was unable to conclude, in the absence of certain information specified in this review, that the proposed development would be in the interests of orderly and proper planning, or that the amenity of the locality would not be compromised by the development.
The application for review was dismissed.
Introduction
An application for review, dated 13 July 2006, was lodged by Mr Michael Swift of Michael Swift & Associates on behalf of Serena Allen (applicant) against a decision of the Shire of Augusta‑Margaret River (respondent or Council) on 14 June 2006 to refuse an application for development approval for the conversion of, and additions to, an existing dwelling for the purpose of the use of the land and premises as a child care centre. The land is located at 5 Waverly Road, Cowaramup.
The application, which was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA), was refused on the following grounds:
"1.The [p]roposal is located amongst and is surrounded by single residential properties and is likely to have an adverse impact on the current level of residential amenity of occupiers of these properties.
2.The [p]roposal by reason of its layout, with specific reference to the car park design at the rear, would adversely impact the residential amenity of occupiers of adjoining property to the west.
3.The [p]roposal, by reason of its location, is considered to be inconsistent with the land use planning guidelines of the Cowaramup Village Strategy 2005.
4.The [p]roposal, by reason of its general location and parking design layout, is considered to be inconsistent with the land use planning guidelines and the site design requirements of the advice document – Western Australian Planning Commission's Planning Bulletin No 72, which requires proposals for child care centres to be allocated to pre‑identified or allocated sites and for parking areas to be located at the front of the property."
On the application heard on 15 September 2006, the Tribunal, acting under the provisions of s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision of 14 June 2006 in the light of a modified proposal.
On 29 November 2006, the Council resolved to reaffirm its refusal for the same four reasons given on 14 June 2006, but varied the decision by adding a fifth reason which read:
"5.The proposal is inconsistent with Table 1 of the Shire of Augusta–Margaret River Town Planning Scheme No 11 whereby the front setback is 7.5 [metres] in lieu of 10 [metres] and the land area of 1300 [square metres] is substantially less than the 2000 square metres required."
For the purposes of this review, the Tribunal, acting under the provisions of s 31(3) of the SAT Act, will consider all five reasons for refusal as listed in the respondent's reasons for refusal of 29 November 2006.
Subject land
The subject land is best described as Lot 101 (No 5) Waverly Road, Cowaramup, on Certificate of Title 2130, Folio 664 (subject land). It is located on Diagram 92378.
The subject land has an area of 1320 square metres with a frontage to Waverly Road of 22.12 metres, a rear boundary of 30.39 metres, a western boundary of 50.97 metres and an eastern boundary of 50.29 metres. The subject land is relatively flat and contains a single residence with an outside laundry and shed as two separate outbuildings.
The subject land is adjacent to four separate residences, is opposite a public open space reserve (community oval) and is the third lot back from Bussell Highway on the north side of Waverly Road. The site at the corner of the Bussell Highway and Waverly Road operates as a transport depot.
Legislation framework
The subject land is zoned "residential" under the Shire of Augusta‑Margaret River Town Planning Scheme No 11 – District Zoning Scheme 1985 (TPS 11).
Of relevance are an Interim Development Order No 16 (IDO 16), a Cowaramup Village Strategy 2005 and the Western Australian Planning Commission (WAPC) Planning Bulletin No 72 – Child care centres (PB 72).
Respondent's position
The position of the respondent is outlined in its Statement of Issues, Facts and Contentions dated 1 February 2007. It contends:
(a)The proposal is non‑compliant with the development standards of TPS 11 and does not satisfy the three variation provisions to qualify for Council approval.
(b)Although it can reasonably be argued that residential properties in the locality are experiencing reduced levels of amenity due to traffic and the associated noise on Bussell Highway and businesses on it, this is not a reason to further reduce the amenity of the locality.
(c)Although the "need" for a community facility, such as a child care centre, may be a relevant planning consideration in certain circumstances, it does not justify the loss of amenity in this case due to:
(i)one adjoining resident will become sandwiched between two commercial uses;
(ii)the five adjoining landowners all opposed the proposal;
(iii)one of the adjoining owners (a quadriplegic) requires a low level of background noise in order to communicate with her carer;
(iv)the proposal does not meet the development requirements of the scheme; and
(v)an alternative site has been earmarked for a day care centre.
(d)Weight should not be given to the petition during the second advertising period, as it was unclear and inaccurate and did not sufficiently describe the proposed location and nature of the development.
The applicant's position
The position of the applicant is briefly outlined in the Statement of Issues, Facts and Contentions dated 6 March 2007. It contends:
(a)The proposal is most appropriately assessed as an "unlisted use".
(b)The proposal is consistent with the objectives and purposes of the Residential zone.
(c)Advertising of the proposal resulted in overwhelming community support for the application to be approved.
Planning issues
The principal planning issues are:
(a)Would the proposal, if approved, be consistent with orderly and proper planning?
(b)Would the proposal, if approved, be likely to reduce, maintain or improve the residential amenity of the immediate locality?
Assessment of proposal
Background
The background to the proposal can be broadly described:
(a)The application for Council's planning consent to commence development was dated 7 March 2006 and received by Council on 13 March 2006.
(b)The proposal (proposal 1) was advertised to eight adjoining and nearby owners as required under cl 4.4.3(c) of TPS 11 and the respondent's Consultation Policy PE 16. Three submissions were received.
(c)On 14 June 2006, the application was refused by Council.
(d)On 12 July 2006, the respondent wrote to the applicant advising that staff were likely to support an application for a "Family Day Care" use subject to it meeting the relevant scheme objectives and development provisions.
(e)On 13 July 2006, the application for review was lodged by the applicant with the Tribunal.
(f)At a directions hearing on 2 August 2006, the Tribunal ordered that a revised application or modified proposal be filed and served by 1 September on a "without prejudice" basis and a mediation take place on 15 September 2006.
(g)On 1 September 2006, an amended site plan (proposal 2) was lodged by the applicant with the respondent.
(h)Following the on‑site mediation on 15 September 2006, the orders issued required that the modified proposal with further amendments (proposal 3), be referred to the respondent for reconsideration.
(i)The proposal was advertised and a total of five submissions were received from adjoining landowners. A petition supporting the proposal was not considered by the respondent as part of the assessment.
(j)On 20 December 2006, the Council reaffirmed its refusal of the proposed development.
Proposed development
The application to commence development, dated 7 March 2006, included a brief outline of the proposal and arguments in support:
(a)There is strong local support and need for the centre in Cowaramup.
(b)Cowaramup is a thriving town with young families.
(c)The closest child care centre is in Margaret River.
(d)The subject land is large, opposite a school and oval, and in a prime position relative to the highway.
(e)The site will have plenty of indoor and outdoor areas for children and provision for adequate parking.
(f)The centre proposes to cater for 20 children with three staff members and one supervisor.
(g)The hours of operation will be 7 am to 6 pm.
(h)Fences will be 1200 millimetres high and made out of childproof steel fencing and childproof gates.
(i)There will be shade cloth over the proposed sandpit, playground and equipment.
(j)Large trees will be retained where possible, but plants and shrubs will be removed to accommodate a lawn area for the children.
The existing residence comprises a three bedroom home with an entry, lounge, kitchen, bathroom and verandah, with a laundry as a separate stand‑alone structure. The initial proposal (proposal 1) envisaged the conversion of the 120 square metre structure to a child care centre comprising a total floor area of 188 square metres.
What was intended in proposal 1 were the necessary internal conversions to provide for playrooms, sleeping quarters, toilets, and an administration and staff room, with the two structures (currently the residence and laundry) linked by a covered walkway. The existing laundry would be expanded from a 6.2 metre by 4.8 metre structure to one of 8.0 metres by 7.8 metres.
The proposal included a drop‑off/pick‑up area to accommodate two vehicles which could enter and leave the site in forward gear, two staff parking spaces and six additional parking bays. The other external areas included a storage shed, a grassed area, a covered sandpit and play area together with appropriate fencing to separate off the car parking areas and two 25 metre leach drains.
Under proposal 2, the six rear parking bays in proposal 1 were reduced to three, the leach drains repositioned from the south‑east side of the lot to a north‑west location, and the proposed sandpit and play area located from a central position along the back fence to a position in the far north‑east corner of the site.
Under proposal 3, the leach drains have again been repositioned to another location along the rear boundary, with a 216 square metre play area positioned away from the north‑east corner; presumably to avoid some existing trees being removed. The three rear parking bays have been retained.
Legislative and policy provisions
In its reasons for refusal, the respondent advised that the subject land, by reason of its location, was inconsistent with the land use planning guidelines of the Cowaramup Village Strategy 2005 (Strategy).
In an examination of the Strategy, it is clear from the introduction to the document that a population of up to 3000 persons is planned for and, according to the witness statement of Ms Mersina Robinson, a qualified town planner for the respondent and former project manager for the Strategy, that the population in January 2007 had reached 809 persons.
It is also clear from page 66 of the Strategy that:
"The development of a child day care centre on Reserve 32824 (for public purposes vested with the Water Corporation) next to the Cowaramup Oval and [sic] is an appropriate location given its proximity to the [P]rimary school, playground and village centre. The development of childcare centres through major centres in the southwest has been seen to follow demand and the appropriate designation of a site that could accommodate such a use is desirable. It is understood that negotiations are currently underway for the return of this land from the Water Corporation to one of the major landowners within the eastern portion of the study area."
Under the Actions and Guidelines on page 67 of the Strategy, it advises to:
"Facilitate the development of a day care centre or similar use on the 'Community Purposes' lot designated on Hall Road."
The actual site is shown on the map included in the Strategy and marked "Day Care".
In the view of the Tribunal, the conclusion that can be drawn is that although the Hall Road site (Reserve 32824) is nominated in the Strategy, that does not mean that other day care centre sites should not be considered on the basis of their particular advantages and disadvantages. That is to say that almost certainly there will be a demand for several day care centres in Cowaramup generated by young parents within the town and surrounds, and a facility for 20 children only on the subject land will almost certainly prove to be insufficient over time.
A further factor in this matter is that, according to the witness statement of Ms Robinson, the Water Corporation wrote to the respondent on 12 July 2005 advising that it was ready to dispose of Reserve 32824 (Lot 56) for a commercial return on the basis of first right of refusal to the respondent. The offer was not taken up by Council.
Regarding PB 72, the Tribunal accepts that although it is only a "draft", it has been in the public arena for almost two years and is accepted as a "seriously entertained planning proposal". The policy is comprehensive and generally advises:
(a)It has been prepared as a guide to local government.
(b)The objectives include locating child care centres appropriately, and minimising their impact on the amenity of existing residential areas.
(c)A traffic impact assessment will normally be required.
(d)A noise impact assessment may be required.
On the important question of noise, the policy outlines certain basic objectives such as "noise mitigation" measures. These include measures to minimise the effect on neighbours from outside play areas, and measures to minimise the impact of outside noise on children within the building and achieving acceptable indoor noise limits.
Under IDO 16, there is a list of exemptions from the need for planning approval which is covered by cl 6. None of the exemptions are applicable in this case, and a child care centre would require planning consent.
Under cl 2.4 of TPS 11 the Council, when considering an application for development, shall have regard to:
"...
(b)the orderly and proper planning of the land within the Scheme Area, and may take into account:
(i)the nature of the proposed development in relation to the development either existing or proposed on adjoining land;
...
(v)the representations of any statutory bodies or other interested parties with whom it may confer;
(vi)the existing and likely future amenity of the Scheme Area;
...
(c)any other matters relevant to town and regional planning, the public interest in general and the locality surrounding the proposed development in particular."
Under Table 1 (Zoning, Site Requirements and Development Standards) of TPS 11 a child care centre is not specifically listed, but under the category of "Public and Community Uses", there exists a day care centre. A day care centre has an "SA" symbol in the Residential zone which is defined in cl 4.4.2 as:
"SAmeans that the Council may, at its discretion, permit the use after notice of application has been given in accordance with [cl] 4.4.3."
Under Appendix III (Interpretations), a day care centre is defined as:
"Day Care Centre – means a day care centre as defined by the [Child Welfare (Care Centres) Regulations 1968], published in the Government Gazette of 15 July 1968, but does not include a family care centre or an occasional care centre as defined by those Regulations."
Under cl 4.4.3 (Advertising of Applications), it states:
"(a)Where an application is made for planning consent to commence or carry out development which involves an 'SA' use, the Council shall not grant consent to that application unless notice of the application is first given in accordance with the provisions of this Clause."
In cl 4.4.3(c) there is provision for notice to be served on the owners and occupiers of land within an area determined by Council as likely to be affected by the granting of planning consent. That is, in fact, what occurred in this case.
Clause 4.4.4 of TPS 11 states:
"If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Classes, the Council may:
(a)determine that the use is not consistent with the objectives and purpose of the particular Zone and is therefore not permitted; or
(b)determine by absolute majority that the proposed use may be consistent with the objectives and purpose of the Zone and thereafter follow the advertising procedures of [cl] 4.4.3 in considering an application for planning consent."
In the view of the Tribunal, although a child care centre is not specifically mentioned in the zoning table, it could reasonably be determined as falling within the day care centre use class, and the various minimum site requirements and development standards outlined in Table 1 would then apply.
In the respondent's reconsideration of the matter on 29 November 2006, it is clear that the report of the officers accepted this view and advised:
"The proposal is consistent with the development standards with the exception of:
•A 7.5 [metre] front setback exists in lieu of 10 metres required; and
•The site comprising 1300 [square metres] in lieu of the minimum 2000 [square metres] required."
On the matter of development standards, cl 4.4.6 of TPS 11 allows the Council discretion to modify standards. It states:
"… The power conferred by this [c]lause may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality.
(b)the non‑compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and
(c)the spirit or purpose of this requirement or standard will not be unreasonably departed from thereby."
In the view of the Tribunal, TPS 11 places strong emphasis on both "amenity" and "orderly and proper planning" and, that if development standards are to be modified, these two important planning principles are not compromised.
In his statement of evidence dated 6 March 2007, Mr Michael Swift, a qualified town planner for the applicant, argues that the proposal cannot reasonably be determined as a day care centre and is an "unlisted use" that should be determined pursuant to cl 4.4.4 of TPS 11. In such a case, TPS 11 would not provide development standards or criteria for that use.
As pointed out in [41] above, the Tribunal does not share that view, and in any event, there is a flexibility provision in cl 4.4.6 of TPS 11 to modify development standards if justified.
An examination of the proposed District Town Planning Scheme No 1 (DTPS 1) shows that a specific use class of "Child Care Premises" is included in the zoning table, but it is not a use that is permitted in a Residential zone unless Council has exercised its discretion after giving special notice in accordance with cl 3.7. Such action would be required, as a child care premises carries the "A" symbol in the zoning table.
Under cl 3.7.1 in "draft" DTPS 1, the symbol "A" and the "use not listed" category require the same advertising process.
In the view of the Tribunal, the differences between the parties on how the matter should have been determined largely fall away as it must now be considered on a de novo basis.
What is important to the Tribunal is that there is sufficient information before it, along with the views of neighbours and others, to allow a fair determination to be made on the grounds of "amenity" and "orderly and proper planning".
Advertisement of proposal
The proposal was initially advertised prior to the Council meeting of 14 June 2006 in accordance with the provisions of TPS 11. Three submissions were received, one of which offered no objection.
Within the two objections, a series of concerns were raised. These included matters relating to traffic and parking, noise emanating from the centre, orderly and proper planning, safety of the children, effluent disposal, storm water management, devaluation of property and loss of privacy.
Prior to a Council meeting of 29 November 2006, a revised proposal [3] was advertised to adjoining owners and five submissions were lodged. The same range of concerns as outlined in [52] were received, together with concerns relating to the inadequacy of on‑site parking and detriment to the streetscape.
A petition in favour of the proposal with over 140 signatures was, as outlined in [15(d)] above, not taken into consideration in the final assessment of the proposal.
In the view of the Tribunal, it is patently clear that there is a need for a child care facility in Cowaramup, as no facility currently exists in a growing town with small children. However, it is the concern of adjacent neighbours that should carry the greatest weight (providing their concerns are justified), as it is they who must contend with the proposed facility on an on‑going basis throughout each working week.
The matter of traffic
Although there is no traffic impact assessment (TIA) before the Tribunal, the matter was addressed in an officer's report to Council on 29 November 2006 in this way:
"It is considered that a traffic impact assessment is not required in this instance as the Proposal is located along a local distributor road that register [sic] significant trip generation due to the existence of the school down the road."
The Tribunal can find no logic in the officer's reasoning, as a road carrying significant traffic is a sufficiently compelling reason of itself to require a TIA.
However, on balance, and with only a small child care centre contemplated (20 children), and with arrivals and departures probably spread over one to two hours in the morning and afternoon, it is difficult to envisage a traffic problem in Waverly Road generated by the proposed land use.
What is of more concern is the adequacy of on‑site parking for staff and parents, and the need to assess the resulting noise impact in terms of the number of "door closure events" on any one day.
The matter of noise
There is no noise impact assessment (NIA) for the Tribunal to consider, but the matter was addressed in the officer's report to Council on 29 November 2006 in this way:
"Child care centres are classified as a non‑residential use and recognised to have the potential of adversely affecting residential amenity due to the noise generation associated by it with the behaviour of children playing in the outdoors. …
The introduction of a land use of this nature will further reduce the current reduced level of amenity experienced by neighbouring residential properties, especially those that are located to the west of the site that is already subjected to noise from the business sites."
What is required to more accurately assess the proposal is an estimated breakdown of the number of children by age group into babies (0 to 2 years), toddlers (2 to 3 years) and kindy (3 to 6 years) in the knowledge that noise increases by age group.
Further information on the times of outdoor play and actions to be taken to mitigate noise is needed. Such matters as the proposed masonry wall on the western boundary, and the types of play equipment, are all things that can be taken to reduce decibel readings. The likely number of "door closing events" is also a factor that would need to be addressed in any NIA.
The matter of amenity
The matter of "amenity" was addressed in Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) at page 5:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
This definition is, to a large extent, subjective and relies on the personal views of individual residents who may suffer from incorrect information, lack of information or bias. However, for them to be fully informed, the information should be available.
In Rajneesh Foundation of Australia v Shire of Manjimup No 2 (1985) 3 SR 65, Mr Malcolm QC (as he then was) expanded on the definition of amenity:
"In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality …"
This latter view is a more objective assessment than Cipriano v City of Perth, but once again the relevant information should be provided.
In this particular case, the matter of amenity is very much linked to noise and the absence of relevant information on noise has not assisted the applicant. It should have been collected and made available to both residents and Council in order to ensure a more comprehensive analysis of the proposal.
Conclusions
The application for review was lodged against a decision of the respondent to refuse an application for development approval for the conversion of, and additions to, an existing dwelling for the purpose of a child care centre for 20 children.
The reasons for refusal were largely based on the likely adverse impact on the current level of residential amenity, particularly in relation to the location of the rear car park and matters of lot size and building setback. The proposal was also considered to be inconsistent with the land use planning guidelines of the Strategy.
In undertaking the review, the Tribunal had regard to the arguments of the parties, the background and modifications to the proposal, legislative and policy considerations, reactions to the original and modified proposal, and matters of traffic and noise.
The first matter that can be put to one side in this review is the "need" for a child care facility. There is, of course, no necessity for the applicant to justify "need", but it is patently clear to the Tribunal that a facility is required in Cowaramup which is a small but growing town with an increasing number of young children. There is no child care facility at this time and parents are required to travel to Margaret River in order to place their children.
On the matter of providing a facility in Cowaramup, one of the reasons for refusal of the application was in relation to the Strategy which shows a well‑located child care centre on Reserve 32824 (Lot 56), Hall Road. However, in the view of the Tribunal, this does not mean that other proposed centres should not be considered elsewhere in Cowaramup on the basis of merit. That is to say that almost certainly there will be a demand for several child care centres in Cowaramup over time, and a small facility for 20 children in the first instance need not jeopardise the future development of Lot 56 for a similar purpose.
A further reason for refusal was that PB 72 requires child care centres to be allocated to pre‑identified sites, and for parking areas to be located at the front of the property.
But this is not how the document, which is only meant as a guide to local authorities, addresses these two matters. It states:
•"Usually adequate provision is made for the development of child‑care centres as part of the structure planning for new areas of development …"; and
•"Parking areas should be located in front of the building. If this is not possible they should be clearly visible and easily accessible from the entry to the site."
In other words, there is no absolute requirement that child care centres be shown in structure plans, and if parking cannot be located in front of the building, it should be clearly visible from the entry to the site. That is the case in the proposal under review.
On matters of lot size and building setback it is the case, as given in the reasons for refusal, that the proposal does not meet the minimum site requirements as set down in Table 1 of TPS 11. However, it is also the case that cl 4.4.6 does provide for Council to modify standards subject to an approval being consistent with orderly and proper planning, and the preservation of the amenity of the locality.
The only point that needs to be made here is that there should be some correlation between the size of the facility and lot size. In other words, a small facility accommodating 20 children only should be easily accommodated on a 1000 square metre site. Again, if the setback of some 7.5 metres to 7.7 metres is provided instead of the required 10.0 metres, then that deficiency would need to be judged on the rationale behind the standard in the first place, and how the land within the setback is proposed to be used. In this case, it can be usefully used for drop‑off/pick‑up purposes.
On the matter of the development application the initial proposal was less than comprehensive and did not address such matters as the adequacy of outdoor play space and indoor play space. These matters are addressed in cl 32 of the Children and Community Services (Child Care) Regulations 2006 (Regulations) where there is a need for at least 3.25 square metres for "indoor space" and at least 9.3 square metres for "outdoor space".
From an examination of the plan (proposal 3) it appears that these standards would be more than met for 20 children, but there is still no base data provided for the Tribunal to consider in the terms of the Regulations.
On the important matter of "amenity", the issues of traffic and noise need to be addressed.
Firstly, there is no TIA for the Tribunal to consider even though, as pointed out in [58] above, it is highly unlikely that a small centre with arrivals and departures spread over, say, one to two hours that there would be traffic problems in Waverly Road. However, the information is still required to allow a proper assessment to be made.
What is of more concern is the adequacy of on‑site car parking for both staff and parents. These requirements are set down in Council's Car Parking Policy (PE 14) which, for a "child day care centre" requires:
"[One] space per staff member or person rostered to supervise children plus adequate [pick‑up/set‑down] area onsite."
In the case of proposal 1, a total of 10 car parking spaces were provided, but in proposal 3, the total has been reduced to seven spaces.
In the view of the Tribunal, the number of spaces would need to be increased; possibly to eight or more in order to accommodate total staff numbers and ample provision for drop‑off/pick‑up in peak times.
In the view of the Tribunal, the most important amenity consideration relates to noise and noise mitigation measures, but there is no NIA for the Tribunal to consider.
What is required, is more information in order to more accurately assess the proposal in terms of the likely breakdown of the number of children into the various age groupings (with the older children making the most noise), the number of hours set aside for outdoor play, the likely number of "door closing events", and the ways and means by which noise may be minimised. The proposed masonry wall along the western boundary is one such measure, but there are other measures such as the type of play equipment and insulation of buildings that would need to be considered.
Again, information on the existing noise levels emanating from nearby commercial premises (if any) and Bussell Highway would be helpful in order to assess whether a child care centre would, in fact, add significantly to noise levels during the week.
In an overall sense, the Tribunal would agree with the observation of Mr Christopher W Hammersley, a qualified town planner for the respondent, where he states in his witness statement of 1 February 2007 that:
"70.In the absence of a site specific noise impact assessment … the [a]pplicant has not sufficiently demonstrated that the [p]roposal will have a minimal impact on the functionality and amenity [of] the locality."
As pointed out in the review, the Tribunal is unable to support the rationale behind a number of the reasons for refusal of the original development application by the respondent, but, in the absence of certain information specified in this review, it is also unable to conclude that the proposed development would be in the interests of orderly and proper planning, or that the amenity of the locality would not be compromised.
Orders
For the foregoing reasons the orders of the Tribunal are:
1.The application for review is dismissed.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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