ASSOCIATION OF ISLAMIC DAKWAH IN WESTERN AUSTRALIA and CITY OF GOSNELLS
[2011] WASAT 80
•16 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ASSOCIATION OF ISLAMIC DAKWAH IN WESTERN AUSTRALIA and CITY OF GOSNELLS [2011] WASAT 80
MEMBER: MR J JORDAN (MEMBER)
HEARD: 15 APRIL 2011
DELIVERED : 16 MAY 2011
FILE NO/S: DR 323 of 2010
BETWEEN: ASSOCIATION OF ISLAMIC DAKWAH IN WESTERN AUSTRALIA
Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning Development Refusal Proposed use of existing buildings as place of worship, community purposes and caretaker's dwelling Discretionary uses in a rural zone - Rural zoned locality - Cul-de-sac - Objectives for the Rural zoned locality - Traffic impact - Noise - Existing local amenity - Impact on local amenity - Effluent disposal
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 4.2, cl 4.2.3, cl 5.13.1, cl 5.13.3, cl 11.2, Sch 1, Table 1, Table 3A
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Kalamunda Town Planning Scheme No 3, Table 1
Result:
Application for review is dismissed
Refusal of the proposed development of a place of worship, community purposes, caretaker's dwelling and residential building is affirmed
Category: B
Representation:
Counsel:
Applicant: Ms S Brandsby (Town Planning Consultant)
Respondent: Mr J Algeri (Town Planning Consultant)
Solicitors:
Applicant: Sandra Brandsby Planning & Construction Consultant
Respondent: Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Tempora v Shire of Kalamunda (1994) 10 SR (WA) 296
Townsend & Anor and Shire of Donnybrook-Balingup [2005] WASAT 276
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of an application for approval for the use of existing buildings as a place of worship, community purpose, residential building and caretaker's dwelling on a rural zoned lot in Valcan Road, a culdesac in Orange Grove.
The City of Gosnells was concerned that the proposed uses would not be consistent with the objectives of this rural zoned locality and that the traffic generated by the uses would have the potential to detrimentally affect the existing rural amenity of the locality.
The town planning scheme provided discretion to consider whether the proposed uses might be allowed in the rural zone. The Tribunal weighed the proposed uses against the zoning objective of retaining the rural character and amenity of the locality and against the matters to be considered for a development application under the town planning scheme.
The Tribunal concluded that the buildings currently on the site were consistent with improvements found on many other lots in Valcan Road and that the activities proposed to be carried on in the buildings would not be discernible from outside the site. The Tribunal found that Valcan Road could accommodate the increase in vehicle movements that would result from the proposed uses and the site could accommodate the required number of car parking bays.
The expert evidence was that the activities on the site and the car movements, with works to mitigate vehicle noise in one location, would satisfy the Environmental Protection (Noise) Regulations 1997 (WA).
The Tribunal found, however, that it was proposed to introduce into the rural culdesac uses that necessitate people arriving and leaving by car at specific times, including night time. A 40 metre long, 1.6 metre high solid boundary wall would be required to mitigate the impact of the noise from the vehicles.
The Tribunal formed the view that the proposed uses would produce noise that would be a nuisance. In the context of the locality of the lot, the Tribunal concluded that the proposed uses would be unusual, and the intensity of the traffic introduced, the noise produced and the requirement for the sound barrier wall would not otherwise be expected in this locality. The Tribunal concluded that the proposed uses would result in an undesirable impact and so be incompatible with retaining the local character and amenity as required by the town planning scheme.
The Tribunal dismissed the application for review.
Introduction
These proceedings involve an application brought by the Association of Islamic Dakwah in Western Australia (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Gosnells (respondent, City or Council) to refuse an application for planning approval for development and use of No 39 (Lot 30) Valcan Road, Orange Grove (site) for purposes associated with instruction in and the practice of the applicant's faith.
Site and locality
This site is a 2.02 hectare rectangle with frontage of 89.5 metres to Valcan Road at the northwestern boundary and a depth of 226 metres.
Set back about 70 metres from the front boundary are two dwellings joined to form a U shape, with the opening between the houses facing the grassed paddocks at the front of the lot. The houses are set back about 30 metres from the southwest boundary and 20 metres from the northeast boundary. A gravel driveway about 3.8 metres wide extends adjacent to the northeast boundary from Valcan Road to an open area about 15 metres wide that extends across the rear of the two houses.
A 195 square metre metal shed with a concrete floor (large shed) is situated about 20 metres behind the houses and 20 metres from the southwest boundary. Adjacent to the shed is an area of about 20 metres by 20 metres of loose sand previously used in association with the agistment of horses on the site. There are three small sheds between the large shed and the rear of the houses, and a further shed towards the rear of the lot. The remainder of the property is developed as pasture.
Valcan Road is a culdesac extending about 950 metres southwest from Crystal Brook Road. Mature trees grow along the length of the road reserve and a 5 metre wide bitumen carriageway has been constructed to deviate around trees at locations along its length. Lots fronting Valcan Road are mostly 2 hectares except for four lots of about 1 hectare. The lots in Valcan Road are in a rural zone but are mostly used for residential purposes with areas of retained vegetation and paddocks. Some lots are used for the keeping of animals, mostly horses.
No 49 Valcan Road abutting the site to the southwest has a house set back about 20 metres from the road and about 10 metres from the common boundary with the site. This lot is developed with horse paddocks. No 16 Valcan Road to the northeast has a common boundary with the site extending about 80 metres back from the road frontage. A second house on No 16 Valcan Road usually occupied by tenants is set back about 15 metres from the road and 5 metres from the site boundary.
Abutting the rear boundary of the site is Lot 388 Kelvin Road of about 6 hectares, on which is the Crystal Brook Caravan Park. This caravan park accommodates in excess of 100 caravans.
Prior to the hearing, the Tribunal viewed the site and neighbouring lots in Valcan Road, accompanied by representatives of the parties and the witnesses.
Planning framework
The site is zoned rural under the Metropolitan Region Scheme and is zoned general rural in the City of Gosnells Town Planning Scheme No 6 (TPS 6). The northeast boundary of the site abuts the boundary of the Shire of Kalamunda.
The objective of the general rural zone at cl 4.2 of TPS 6 is 'to provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality'. Pursuant to TPS 6, a 'rural pursuit' is defined as:
… any premises used for
(a)the rearing or agistment of animals;
(b)the stabling, agistment or training of horses;
(c)the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d)the sale of produce sown solely on the lot,
but does not include agriculture extensive or agriculture intensive[.]
Under Table 1 - the zoning table of TPS 6:
‘P’ means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
‘D’ means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
‘A’ means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 10.4;
For the general rural zone, 'P' uses are rural pursuit, family day care and a single dwelling. There are a number of 'D' and 'A' uses that can be considered for the zone in Table 1 that are not a 'rural pursuit'. These include: childcare premises, club premises, caravan parks, commercial vehicle parking, community purpose, corrective institution, educational establishment, exhibition centre, industry (cottage, extractive, service), place of worship, reception centre, recreation private, restaurant, and veterinary centre. Under TPS 6, a place of worship and a residential building are designated 'A' and a community purpose use and caretaker's dwelling are designated 'D'.
Clause 11.2 of TPS 6 sets out matters to which it is necessary to have due regard when considering an application for planning approval. These include:
…
(b)the requirements of orderly and proper planning …
(c)any approved statement of planning policy of the Commission;
…
(i)the compatibility of a use for development with its setting;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to the development on adjoining land or on other land in the locality including but not limited to, the unlikely effect of the height, bulk, scale, orientation and appearance of the proposal;
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect of traffic flow and safety;
…
(s)whether public utility services are available and adequate for the proposal;
…
(y)any relevant submissions received on the application;
…
(za)any other planning consideration the local government considers relevant.
Schedule 1 of TPS 6 includes the following definition:
'amenity' means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Clause 5.13.1 with Table 3A of TPS 6 set out parking requirements for various uses. Clause 5.13.3 provides for a reduction in the number of car parking spaces if the Council is satisfied 'there will not be any resultant lowering of safety, convenience and amenity standards'.
The respective expert planning witnesses called by the parties agreed that also relevant in the consideration of this matter is the City's adopted 'Foothills Rural Strategy' 2004 (Foothills Strategy). The site is within Rural Planning Precinct 3 Tonkin Highway East (Precinct 3). Clause 4.2.3 of the Foothills Strategy provides an overview of the issues, opportunities and constraints for Precinct 3. Under Objective L 'Strategies', the Foothills Strategy recommends a minimum lot of 1 hectare a rural lot and minimising potential for land use conflicts through appropriate location of land uses.
Within the Shire of Kalamunda, abutting the northeast boundary of the site, lots, including No 16 Valcan Road, are zoned special rural under Shire of Kalamunda Town Planning Scheme No 3. Under Table 1 the zoning table of this Scheme the uses 'place of worship' and 'community uses' are not permitted within the special rural zone.
Proposed development
Proposed is the use of the 195 square metre large shed as a 'place of worship (prayer hall)'. In addition, one house would have three rooms used for 'community purpose' (religious studies), one room as an office and the remainder of the house as a residential building for pupils and adherents of the applicant's faith. A caretaker would live in the other house. Four cars would park in the house carports, and 24 car parking bays would be provided on the cleared areas at the rear of the houses and adjacent to the large shed. The cleared area adjacent to the large shed has room for an additional 16 car parking bays.
The applicant advised that there would be prayer sessions throughout the day for those on site. Events when others from the community would travel to the site would include festivals about three times a year, but regularly would be:
•Tuesdays 7 pm to 9 pm for religious education;
•Fridays 1 pm to 2 pm for prayers; and 7 pm to 9 pm for religious education; and
•Sundays 10 am to 1 pm every fortnight for religious education.
The applicant is said to currently have about 60 members, comprising family groups, who are adherents or receiving instruction in the faith. If they are not a family that is resident in one of the houses, they would visit the site with a family of about three to four persons per car.
There was discussion between the parties as to whether the proposal included the use 'residential building', which under TPS 6 has the same meaning as in the Residential Design Codes of Western Australia (2010) (Codes). The definition in the Codes is:
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
Temporarily by two or more persons; or
Permanently by seven or more persons, who do not comprise a single family, but does not include a sanatorium, a prison, a hotel, a motel or a residential school.
The discussion related to the current occupancy of the house by two families of less than seven persons. The Tribunal was informed the purpose of occupancy was related to religious education, and the number and relationship of the people might vary over time. The Tribunal considers that, from its understanding of the use to be made of the site, there would be occasions when the use of the house would be as a 'residential building'. To be consistent with the intended use, the Tribunal has interpreted the proposed development as including a residential building.
Refusal
The original application to the Council for development approval also included the proposed retrospective planning approval for the large shed, which was on the site when purchased. The Council granted planning approval for the large shed. The Council refused the application for the remainder of the proposed development for the reasons:
1)The use is not consistent with the stated objectives of the general rural zone.
2)The use will cause a significant increase in traffic which has the potential to detrimentally affect the existing rural amenity of the local area.
3)The proposed parking area is not provided with a driveway of sufficient width to accommodate the proposed traffic movements to and from the site.
4)The number of car parking bays provided does not comply with the requirements of TPS 6.
5)The site's current effluent disposal system is not sufficient to cater for the proposed number of visitors to the property.
Issues
From the parties' respective statements of issues, facts and contentions and the witness statements of the planning experts, the Tribunal has identified the following issues:
1)Whether the proposed uses would be contrary to the objectives of the general rural zone.
2)Whether the proposed uses would be incompatible with retaining the existing rural character and amenity of the locality.
3)Whether excessive noise will emanate from the proposed uses and whether it will be outside the noise expected from the class of potential uses permitted or that might be allowed in rural areas.
4)Whether traffic generated by the proposed use could be accommodated in Valcan Road.
5)Whether the increase in traffic volume would adversely affect the existing rural amenity.
Discussion
Issue 1: Whether the proposed uses would be contrary to the objectives of the general rural zone
As stated above, the objective of the general rural zone at cl 4.2 of TPS 6 is 'to provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality'.
The proposed development is not within the definition of 'rural pursuit' under TPS 6 but, as set out above under the planning framework, TPS 6 does provide for consideration of whether discretion might be exercised and certain other uses, such as those proposed, might be allowed in the zone.
Consistent with orderly planning, discretionary uses other than rural pursuits should also be weighed against the zoning objective of retaining the rural character and amenity of the locality. As stated by Ms Sandra Bransby, who appeared for and was an expert planning witness for the applicant, when considering whether the proposed uses could coexist with rural pursuits, consideration is also required of relevant factors listed at cl 11.2 of TPS 6, including the scale of the proposal, ability to exist in harmony with neighbouring uses and the prevailing amenity.
This leads to consideration of the following particular issues.
Issue 2: Whether the proposed uses would be incompatible with retaining the existing rural character and amenity of the locality
In the opinion of Ms Bransby, any change of use would alter the existing character of the area, and the proposed use would result in some intensification of activity. Ms Bransby emphasised, however, that the uses would effectively be integrated within the existing buildings. There would be no additional buildings and no significant modification to the external appearance of the existing buildings.
Ms Bransby said the up to 40 vehicles in the car parking area would be an obvious change, although these would be screened from neighbours by the houses on the site and by improvements such as a high wall and a shed on No 49 Valcan Road. No clearing of vegetation was required for the car parking area and the proposed development would not preclude the remainder of the site to again be used for the rural pursuit of the agistment of horses.
Ms Bransby said that in 2009, the uses operated without planning approval. During that year, no complaints were made to the Council about the uses, demonstrating that they could coexist with existing rural pursuits. The complaints were made after the proposed uses were brought to the attention of the neighbours and, in her opinion, are based on what neighbours consider might happen rather than how the uses would operate.
In respect of the concern expressed by the respondent about on-site effluent disposal for the number of people proposed having an adverse impact on the local environment, Ms Bransby referred to the caravan park to the rear having on-site effluent disposal with no reported problems. The applicant would install a system to the required standard.
Mr Tim Price, a planner at the City of Gosnells called as a witness by the respondent, described the locality as a quiet rural culdesac serving about 25 properties. In his opinion, the physical characteristics of the locality engendered a sense of privacy and community for residents of the street.
Mr Price considered the site to be inappropriate for a place of worship because there would be an intensification of land use resulting in increased traffic, activities by people visiting the site and the parking of additional cars. Having regard to the considerations under cl 11.2 of TPS 6, Mr Price considered the proposed uses were not compatible with the setting or with the neighbouring uses because of this intensification. He was of the opinion that the proposed uses would be inconsistent with maintaining the amenity and character of the locality.
Mr Brett Easton and Mrs Phillipa Easton, who live next door to the site at No 49 Valcan Road, appeared as witnesses. Mr and Mrs Easton described life in the culdesac as peaceful and serene, with an emphasis on equestrian activities. Valcan Road was suitable for horses and children on bicycles. They were of the view that the proposed uses would change the dynamic of the street and would have a direct impact on the amenity of their house. They expressed concern that it would be difficult to control future use if the application was allowed.
Mr George Allingame, a resident of 36 years at No 16 Valcan Road, also appeared as a witness. His concern was that this was a quiet rural area, and proposed was an intensification of use that would introduce additional traffic and noise. He was concerned there would be an impact on the equestrian activity along Valcan Road by strangers unfamiliar with the use made of the road. Mr Allingame was also concerned about the impact the intensification of activities on the site would have on residents in the second house on his lot.
The respondent's submission was that, in Gosnells, places of worship were usually in more accessible locations, with access from local distributor roads and closer to associated services. The proposal would erode the amenity and character of this secluded area because of its scale and the nature of the uses, and so would not be consistent with the objectives of the zone. It would be too difficult to monitor any conditions imposed restricting the hours of operation and too difficult to monitor who was on the site and for what purpose.
'Amenity' is defined in TPS 6. The Tribunal would restate that, in considering amenity, there is required a determination of the objective amenity of the locality, an assessment of the manner in which the proposed use may change that existing amenity, and a conclusion on what effect that change would have on the amenity: Tempora v Shire of Kalamunda (1994) 10 SR (WA) 296. To this objective analysis has been added consideration of the comments of neighbours placed to identify qualities and characteristics that contribute to their residential amenity: Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48].
The Tribunal agrees with the applicant that the buildings currently on the site, which will not be added to, are consistent with the improvements found on many other lots in Valcan Road. It is also clear that the activities carried on in the buildings would not be discernible from outside the site. The proposed use would, however, introduce into this rural culdesac a gathering of people who must, of necessity, arrive by car. The cars will arrive and leave at specific, concentrated times, including at night time. A 40 metre long solid wall, discussed below, is required to mitigate the impact of the noise from the vehicles on the gravel driveway.
The locality currently has an amenity that might reasonably be expected of a rural culdesac. The Tribunal is of the view that while there is a list of uses that might be considered for the general rural zone under TPS 6, it is necessary to consider the proposed use in the context of the locality in which the site is situated. The proposed uses will have an impact on the existing amenity because the hours of use and the vehicle numbers attracted will be unusual in the locality. The Tribunal has concluded that, on balance, the scale of the change resulting from the development would be sufficient to have an undesirable impact and so be incompatible with retaining the local character and amenity.
The concerns about potential traffic and noise impacts are more specifically addressed in the issues to follow.
Issue 3: Whether excessive noise will emanate from the proposed uses and whether it will be outside the noise expected from the class of potential uses permitted or that might be allowed in rural areas
The applicant called as a witness Mr Timothy Reynolds, an engineer expert in noise modelling. Mr Reynolds considered noise emissions relating to engines, door slamming and from people congregating in the carpark at the time of departure. He found that, with one exception, the noise emissions from the proposed uses would be deemed to comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). The exception would be the noise from vehicles travelling along the accessway received by residents of the house adjoining the site boundary to the northeast. Mr Reynolds found that noise received at that neighbouring residence would comply with the regulatory requirements if one of the following noise amelioration measures was implemented:
(a)relocate the driveway to maintain a minimum separation of 30 metres from the boundary;
(b)build a 1.8 metre high boundary fence extending from the front boundary for 40 metres along the northeastern boundary; or
(c)change the surface of the driveway to asphalt.
The comment from the applicant was that its preference was the construction of the fence to address vehicle noise emissions. When asked what noise neighbours might find an irritant, Mr Reynolds said it usually depends on what they are used to.
The planning witnesses for each of the parties disagreed on whether the level of noise generated would be evident to residents and have a detrimental impact on the local amenity. Ms Bransby said that there would be some increase in noise with the change of use but that the volume of noise would not have an adverse impact on the neighbours. Mr Price said that, in his experience, even when the Noise Regulations were not exceeded, neighbours complained when additional noise and different noises were introduced into a locality.
Mr and Mrs Easton of No 49 Valcan Road said that the noise from the uses would 'destroy' the peace of the locality. The noise would be close to their outdoor living area and would occur at least twice a week. When questioned, Mr and Mrs Easton said that their son's drum practice had an 8 pm curfew and the use of their motor bikes was a noise that was heard in the locality similar to lawnmowers and other rural residential machinery.
Mr Allingham of No 16 Valcan Road said he was concerned about the impact of vehicle noise from the accessway on the tenants of the house adjacent to the driveway. He noted the need to seal the driveway or erect a screen fence along the common boundary adjacent to the house to alleviate noise.
The Tribunal must consider what impact on local character any steps to ameliorate noise nuisance will have. The Tribunal has also previously determined, in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [19] that:
Compliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
A further principle is found in Townsend & Anor and Shire of DonnybrookBalingup [2005] WASAT 276 at [54]:
For noise to be offensive it must be unreasonable or unwanted; it is not sufficient that it merely be audible. The offensiveness of the noise should be gauged by reference to the particular context and area in which it is audible.
The Tribunal has formed the view that a 1.8 metre high solid wall extending 40 metres back from the front boundary of the site to ensure compliance with the Noise Regulations would introduce a visual element unusual in this locality. It is considered that in a locality of mostly post and rail and rural wire fencing, such a style of fence would have an undesirable impact on the local visual amenity.
Other uses that are discretionary uses in the zone might make worse noise than the proposed uses, but whether they would be allowed in Valcan Road is another consideration. Other uses having a worse noise impact does not lead to allowing a use or uses that make less noise where that lesser noise is still a nuisance.
The Tribunal has also formed the view that the proposed development would produce noise that would be a nuisance. Valcan Road is a rural locality with small lots. Noise associated with maintaining a rural lot or family activities in this locality might be expected. The noise from voices might be audible at times from the site, but the Tribunal does not consider this is likely to be offensive. However, the proposed use would introduce the noise of up to 25 vehicles arriving and leaving together with, it was stated, up to four occupants opening and closing the doors. The vehicles would be departing after lessons finished at 9 pm on two nights a week and periodically on Sundays. Noise of this type and concentration would not otherwise be expected in this locality.
Issue 4: Whether traffic generated by the proposed use could be accommodated in Valcan Road
Mr Michael Lee, a traffic engineer, was called as a witness by the applicant. In his witness statement, he included information provided by the applicant on traffic movements, which referred to 15 cars arriving and leaving at certain times. For Fridays and Sundays, Mr Lee allowed for an increase to 25 cars. The trips were listed as follows:
Friday trip generation
Additional trips
•25 inbound trips for the start of Friday prayers at 1 pm
•25 outbound trips for the end of Friday prayers at about 2 pm
•25 inbound trips for the start of Friday community purpose activities [at] 6.45 pm
•25 outbound trips at the end of Friday community purpose activities [at] 7.45 pm
Existing
•10 inbound trips daily for the two dwellings
•10 outbound trips daily for the two dwellings.
Sunday traffic generation
Additional trips
•25 inbound trips for the start of Sunday community purpose activities between 9.30 am and 10.30 am
•25 outbound trips at the end of [Sunday] community purpose activities between 12.30 pm and 1.30 pm.
Existing
•10 inbound trips daily for the two residences
•10 outbound trips daily for the two residences[.]
Mr Lee found existing hourly traffic movement along Valcan Road to be in the order of 17 to 25 twoway trips per hour and 170 to 250 twoway trips per day. The additional traffic generated by the use would increase daily traffic flows to around 270 to 350 twoway trips. This, he found, was well within the daily capacity threshold of 3,000 vehicle twoway trips or an hourly capacity of 300 twoway trips for the class of road of Valcan Road.
When questioned by the respondent, Mr Lee said that, because of the 5 metre carriageway width and the curving alignment of Valcan Road, it appeared that the City had aimed at a lower traffic movement target. He said that he would be concerned if the daily vehicle movement was up to 2,000 twoway trips per day. Mr Lee considered, however, that the increase in 20 cars at a time would not result in any further problems on Valcan Road. Mr Lee's evidence was that the traffic associated with the proposed uses would not result in adverse impacts on the surrounding roads and intersections.
Mr Lee also gave his opinion on the driveway width and the number of car parking bays provided in the proposed development. Mr Lee considered that a 3.8 metre wide 'one way at a time' access leg would be sufficient to accommodate the vehicle movements to and from the site. For the occasional two-way traffic, a passing bay 7 metres long and 5 metres wide could be provided. Mr Lee noted that at peak vehicle flows, all vehicles would be either entering or leaving the site. In his opinion, a driveway of greater width would be unusual for 'highly directional' traffic.
The respondent's preference was that, because it was 70 metres long, it was preferable that the access leg be constructed to a width that would allow two-way movement of traffic for its full length.
The Tribunal has formed the view that if the proposed uses were allowed as applied for, the 3.8 metre wide access leg with a passing bay would be adequate to accommodate the potential vehicle movements.
Mr Lee also concluded that, based on the information provided by the applicant and his assumed increase in the number of vehicle movements to 25, the proposed 28 car parking bays would be adequate for the proposed uses. That is, four parking bays for the caretaker's house and the residential use, and for the place of worship and community uses, which would not occur at the same time, 24 car parking bays.
The officer's report to the Council said that, under Table 3A of TPS 6, 92 car parking bays were required for the proposed uses. Even with the 'future additional' 16 car parking bays shown on the application sketch, there was still a shortfall. The report said that 78 car parking bays are required for the place of worship and 10 car parking bays are estimated for the community purposes use.
Mr Price said the number of car parking bays had been calculated on the gross floor area of the large shed, not on any analysis of how many people might be able to occupy the shed for the proposed use. No consideration was given to the reciprocal use of car parking bays by the community use and the place of worship, which, it was proposed, would not occur at the same times. These factors might reduce the gross figure of car parking bays required.
In their joint witness statement, Mr Price and Ms Bransby agreed that, based on the accuracy of the applicant's current attendance figures and car occupancy information, 28 car parking bays would be adequate. The Tribunal would add that the addition of the 16 additional car parking bays would certainly ensure that adequate parking could be provided on the site, were the uses proposed be allowed to proceed.
The Tribunal, having regard to the uncontested evidence of Mr Lee on this issue, has formed the view that Valcan Road could accommodate the increase in vehicle movements that would result from the proposed uses. What the impact of the additional traffic might be on the local amenity is addressed as a separate issue below.
The Tribunal is also satisfied that the site could accommodate the proposed number of car parking bays and even an increase in the number of car parking bays without affecting any vegetation. Any increase in the number of cars proposed to be parked on the site would become visually intrusive.
Issue 5: Whether the increase in traffic volume would adversely affect the existing rural amenity
The considerations relevant to assessing amenity impacts are set out under issue 2 and issue 3 above. Mr Price said that it was appropriate not to look at the capacity of Valcan Road but to the change in traffic flow that would result from the proposed use. He said that, while Mr Lee had said that any percentage increase would be calculated from a very low base, the additional vehicles generated by the proposed uses would increase traffic flow by up to 50% at peak times. Mr Price considered this level of increase would have an unacceptable impact on the amenity of the locality.
Mr Allingham and Mr and Mrs Easton expressed concern that the drivers of the additional vehicles attracted to the proposed use would not be aware of the use of Valcan Road by young people, and by people riding horses and people leading them.
The Tribunal notes that the entrance to the site is about one third of the length of the Valcan Road culdesac from Crystal Brook Road. Vehicles would pass six lots to reach the accessway to the site. The evidence of the neighbouring witnesses, however, was that the full length of Valcan Road was used for what could be described as recreational purposes involving horses and children.
The Tribunal has formed the view that the concentrated arrival and departure of the cars would be at a scale that will introduce into the locality an amenity impact that would not otherwise be expected in a rural culdesac. This impact is considered adverse to the expectations for the existing and future local amenity.
Conclusion
The proposed development is not, by definition, a rural pursuit as referred to in the objectives for the general rural zone under TPS 6. TPS 6, however, provides for consideration of whether discretion might be exercised, and certain other uses, such as those proposed, might be allowed in the zone.
Consistent with orderly planning, the proposed uses have been weighed against the zoning objective of retaining the rural character and amenity of the locality and against the matters to be considered for a development application at cl 11.2 of TPS 6.
The Tribunal has found, consistent with the applicant's submissions, that the buildings currently on the site, which will not be added to, are consistent with the improvements found on many other lots in Valcan Road. It is also clear that the activities carried on in the buildings would not be discernible from outside the site.
The Tribunal has accepted that Valcan Road could accommodate the increase in vehicle movements that would result from the proposed uses, and that the proposed number of car parking bays would be adequate for the uses. In addition, the expert evidence was that the activities on the site and the car movements, with works to mitigate noise in one location, would satisfy the Noise Regulations.
The Tribunal has found, however, that it is proposed to introduce into this rural culdesac uses that necessitate people arriving and leaving by car at specific times, including night time. A 40 metre long, 1.8 metre high solid boundary wall is required to mitigate the impact of the noise from the vehicles.
Further, the Tribunal has formed the view that the proposed development would produce noise that would be a nuisance. This is because Valcan Road is a rural locality with noise usually associated with maintaining a rural lot or family activities, but the proposed use would introduce the noise of up to 25 vehicles arriving and leaving together with associated opening and closing the doors. The vehicles would be departing after lessons finished at 9 pm on two nights a week and periodically on Sundays. Noise of this type and concentration would not otherwise be expected in this locality.
In the context of the locality in which the site is situated, the Tribunal has concluded that the proposed uses will be unusual and, on balance, the intensity of the traffic introduced, the noise it would produce, and the requirement for the 40 metre long wall would be sufficient to have an undesirable impact and so be incompatible with retaining the local character and amenity.
The Tribunal has decided to dismiss the application for review.
Orders
1.The application for review is dismissed.
2.The decision of the City of Gosnells dated 13 September 2010 to refuse the proposed development of place of worship, community purposes, caretaker's dwelling and a residential building is affirmed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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