BASSENDEAN PRESBYTERIAN CHURCH and TOWN OF BASSENDEAN
[2009] WASAT 196
•13 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BASSENDEAN PRESBYTERIAN CHURCH and TOWN OF BASSENDEAN [2009] WASAT 196
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 30 SEPTEMBER 2009
DELIVERED : 13 OCTOBER 2009
FILE NO/S: DR 265 of 2009
BETWEEN: BASSENDEAN PRESBYTERIAN CHURCH
Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Town planning - Change of use - 'Notforprofit' Christian English language college - Place of worship - Incidental use - Intensity of use - Predominant use - Educational establishment - Objectives for the 'Residential Zone' - Nonresidential activities serving the local residential neighbourhood
Legislation:
Town of Bassendean Local Planning Scheme No 10, cl 4.2, cl 4.2.1, cl 4.2.1(e), cl 4.3.2, cl 4.3.3, cl 9.4, cl 10.2, cl 10(2)(a), Sch 1
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr SG Walker (Representative)
Respondent: Mr B Reed (Representative)
Solicitors:
Applicant: Vanguard Planning Services
Respondent: Town of Bassendean
Case(s) referred to in decision(s):
Inglewood Church of Christ and City of Stirling [2005] WASAT 305
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 29 January 2009, the Bassendean Presbyterian Church applied to the Town of Bassendean seeking approval for the establishment of a Christian English language college at the Church's existing premises at No 14 ‑ 16 (Lot 50) Broadway, Bassendean. At its meeting of 26 May 2009, the Council refused the application and the Bassendean Presbyterian Church subsequently made an application to the Tribunal for a review of that decision.
The issues in this matter were:
•whether the use of part of the Bassendean Presbyterian Church as a Christian English language college represents a change of use of part of the property; and
•whether the proposed land use meets the objectives of the 'Residential Zone', as stated under cl 4.2.1(e) of the Town of Bassendean Local Planning Scheme No 10, or whether the proposal would introduce a non-residential use which would provide a service beyond the local residential neighbourhood.
In regard to the first issue, while the Tribunal found that the proposed use did not constitute an intensification of the use, it would be difficult to reach the conclusion that the proposed use constituted an 'incidental' use. In this context, the Tribunal found that the proposed use did not fall within the 'place of worship' use category under the Town of Bassendean Local Planning Scheme No 10 and constituted a change of use of the subject land.
In regard to the second issue, the Tribunal found that the proposed use, while it clearly provided some local benefits, did not serve the existing local residential neighbourhood. For this reason, the proposal did not, in the Tribunal's view, meet the criteria established by cl 4.2.1 of the Town of Bassendean Local Planning Scheme No 10 or the objectives of the Scheme.
For these reasons, the application for review was dismissed.
Background
On 29 January 2009, the Bassendean Presbyterian Church (applicant or Church) applied to the Town of Bassendean (Town, Council or respondent) seeking approval for the establishment of a Christian English language college at the Church's existing premises at No 14 - 16 (Lot 50) Broadway, Bassendean.
The application was advertised by the Council and two objections were received.
At its meeting of 19 May 2009, a standing committee of Council received a report on the application, prepared by its officers, which recommended approval subject to a number of conditions, which included a limit on the number of students and an approval limited to a two year period. This recommendation was rejected by the Standing Committee which forwarded a recommendation for refusal to the Council.
At its meeting of 26 May 2009, the Council accepted the recommendation of the Standing Committee and refused the application on the following grounds:
1.The proposed land use does not meet the objectives for the residential zone, as stated under Clause 4.2.1(d) of Local Planning Scheme No. 10 as proposed non-residential land-use would not provide a service to the local residential neighbourhood; and
2.The intensification of non residential land uses on the site would further detract from the residential amenity of the locality.
On 8 June 2009, the Council issued a formal refusal to the applicant. On 3 July 2009, the Church made an application to the Tribunal for a review of that decision.
Locality and subject land
The subject land is located at No 14 ‑ 16 (Lot 50) Broadway, Bassendean. The land is zoned 'Residential' in the Town of Bassendean Local Planning Scheme No 10 (LPS 10) with an R coding of R 20/40.
The lot, which is located on the northern side of the street, has a frontage of 30.94 metres to Broadway. The buildings, which are located centrally on the land, comprise an original church on the eastern side of the lot and a new addition constructed, following its approval by the Council in 2001, on the western side of the lot. These structures are set back approximately 12 metres from the front boundary.
There are driveways to the rear of the site along both the eastern and western boundaries. The rear section of the land is occupied by a parking area accommodating 20 car bays. An additional small parking area is provided in the front setback area of the Church.
Immediately to the west of the subject land is a vacant lot owned by the Church. To the north, the site is bounded by a drainage reserve that is 15 metres wide. To the east are four residential properties between the subject lot and Ivanhoe Street. On the southern side of Broadway are residential properties. However, in the section of Broadway between the intersection of Ivanhoe Street and Railway Parade are a number of non‑residential uses which include community, retail and business uses.
The proposed development
The application involves the establishment of a 'not-for-profit' Christian English language college for international students within the existing Church premises. No alterations to the existing buildings are proposed.
The intention is to initiate the college with 30 students in the first year, expanding to 50 students in the second year. It is expected that students will be drawn from Korea, Taiwan, China, India, Malaysia and Indonesia, as well as locally.
The language lessons would take place in the existing air‑conditioned and insulated double brick buildings. The students will be taught by trained teachers and counsellors drawn from the existing congregation. Computer‑based instruction utilising individual headphones will be used. Of the three classes, one will take place in the existing Church and two in meeting rooms in the 2001 addition. The hours of operation would be 9 am to 5 pm Monday to Friday. It is also the intention of the Church to seek accommodation locally for the students.
Relevant planning provisions
There are a number of provisions within LPS 10 which are relevant in the current review.
Clause 4.2 of LPS 10 sets out the objectives for the 'Residential Zone' and includes at cl 4.2.1(e) the following provision in regard to non‑residential activities:
(e) to limit non-residential activities to those of which the predominant function is to service the local residential neighbourhood and for self-employment or creative activities, providing such activities have no detrimental effect on the residential amenity;
Clause 4.3.2 of LPS 10 addresses use categories and sets out the following meaning of an 'A' use as follows:
'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 9.4;
Clause 4.3.3 of LPS 10 deals with changes in the use of land as follows:
A change in the use of land from one use to another is permitted if:
(a)the local government has exercised its discretion by granting planning approval;
(b)the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in the Zoning Table and the proposed use complies with all the relevant development standards and any requirements of the Scheme;
(c)the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot; or
(d)The change is to an incidental use that does not change the predominant use of the land.
Importantly, Note 3 to this clause states that:
In considering a 'D' or 'A' use, the local government will have regard to the matters set out in clause 10.2.
Clause 10.2 of LPS 2 sets out the matters to which the local authority, or the Tribunal on review, shall give due regard in considering an application. These include, at subclause (a), the following:
(a)the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area, including the Metropolitan Region Scheme;
Finally, Sch 1 of the Scheme, 'Land Use Definitions,' sets out definitions of which the following are relevant:
…
'incidental use' means a use of premises which is ancillary and subordinate to the predominant use;
…
'predominant use' means the primary use of premises to which all other uses carried out on the premises are subordinate, incidental or ancillary;
…
'educational establishment' means premises used for the purposes of education and includes a school, tertiary institution, business college, academy or other education centre;
…
'place of worship' means premises used for religious activities such as a church, chapel, mosque, synagogue or temple.
…
Issues for determination
The respondent in its statement of issues, facts and contentions identified the following issues:
1.0Whether the use of part of the Presbyterian Church as a Christian English language college represents a change of use of part of the property.
2.0Whether the proposed land use meets the objectives of the residential zone, as stated under clause 4.2.1(e) of the Local Planning Scheme No 10, or whether the proposal would introduce a non-residential use which would provide a service beyond the local residential neighbourhood.
3.0Whether the intensification of the non-residential land uses on the site would detract from the residential amenity of the locality.
While the applicant, in response, accepted these issues in the 'Joint Statement of Expert Planning Witnesses' prepared by Mr Reed for the respondent and Mr Walker for the applicant, it was agreed that there were no amenity impacts. In clarifying this agreed position, Mr Reed advised that while the respondent could not at this stage identify any adverse amenity impacts, the 'without prejudice' conditions which the Council were advocating were consciously precautionary to ensure that any impacts which might arise could be effectively addressed.
In this context, the issue of amenity impacts falls away to be dealt with in regard to the matter of conditions, should the Tribunal be of a mind to approve the use.
The Tribunal shall deal with each of the other matters in turn.
Whether the use of part of the Presbyterian Church as a Christian English language college represents a change of use of part of the property?
In assessing the question of change of use, the substantive issue is whether the proposed use can defensibly be interpreted as falling within the ambit of the uses associated with a 'place of worship'.
Arguments on interpretation will turn on the nature of the use in terms of the range of activities reasonably expected to form part of the common activities of a church, the intensity of the proposed use, and the related question of whether the use can be regarded as 'incidental' to the predominant use.
The matter of intensity can be reasonably simply dispatched. The approval issued by the Council in 2001 carried a condition requiring that the building 'shall not be used by more than 100 people at any one time'. It was agreed between the parties in this matter that the current proposal would not infringe this condition. For this reason, the Tribunal finds that the proposed use does not constitute an intensification of the use.
In regard to the matter of incidental use, the applicant contended that because the proposed language lessons incorporate teaching about Christianity, and are provided as a service by members of the Church, they are incidental to the predominant 'place of worship' use.
In submitting this argument, the applicant drew on Inglewood Church of Christ and City of Stirling [2005] WASAT 305 (Inglewood Church of Christ) where the Tribunal found that:
The use of land as a 'church' would comprise public worship in the tradition of a recognised religion and incidental uses, such as pastoral care, social and educational activities for congregants, and, to an extent, community education and other activities facilitated by the Church.
The respondent argued that the Church premises were currently attended by approximately 130 people per week. Should the proposed use be approved, this number would increase by a further 250 people comprising the fifty students attending the premises five times a week.
It is usual that the most active usage of Christian church premises occurs on weekends, with other related activities occurring on weekday evenings and more limited activities occurring during the week. In the current case, the proposed use will involve a 60 hour time period from Monday to Friday.
Based on both the distribution of the proportion of the overall number of visits, and the relative distribution of the times of usage, it would be difficult to reach the conclusion that the proposed use constitutes an 'incidental' use of the premises.
As to the issue of whether the proposed use would form part of the common activities of a church, the respondent argued that while a Bible class attended by congregation members would fall within the predominant use, the establishment of an English language course involved the church entering an economic sector comprising a range of providers, many of which were not linked in any way to religion.
The applicant submitted that churches have a range of functions which go beyond normal Sunday services. They host Bible studies, organise play groups and craft groups, and take on a range of activities which vary over time, depending on the needs of their congregation. Some of these activities do not have any direct link to religious activities such as Bible studies. Many of these activities seek to broaden the membership of the church. The applicant submitted that teaching is an integral component of the role of the church function to strengthen the knowledge of members of the congregation and bring this knowledge to others. For the time that they attend the English language course, the students would effectively become part of the congregation.
In Inglewood Church of Christ, the Tribunal recognised 'incidental uses, such as pastoral care, social and educational activities for congregants, and, to an extent, community education' as part of the range of activities facilitated by the church. Relevantly, this recognition was circumscribed to 'incidental uses' and education, primarily for congregants with a more limited role for 'community education'.
In this context, the Tribunal found that the proposal to establish a 'not for-profit' Christian English language college predominantly for international students does not fall within the 'place of worship' use category under LPS 10 and constitutes a change of use of the subject land.
Whether the proposed land use meets the objectives of the 'Residential Zone'?
The respondent submitted that the proposed use falls within the definition of an 'educational establishment' under the provisions of LPS 10. The applicant's submission was that, should the Tribunal find that the proposal was not incidental to the 'place of worship' use, it would be appropriate to treat the proposal as an 'educational establishment'.
'Education establishment' is an 'A' use which is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with cl 9.4 of LPS 10. The application has been advertised in accordance with cl 9.4.
In deciding whether discretion should be exercised, the Council, and the Tribunal on review, is to have regard to the matters set out in cl 10.2 of LPS 10. These relevantly include, at cl 10.2(a), the aims and provisions of the Scheme.
Clause 4.2 of LPS 10 sets out the objectives for the 'Residential Zone' which, at cl 4.2.1(e), reads:
(e)to limit non-residential activities to those of which the predominant function is to serve the local residential neighbourhood and for self‑employment for creative activities, providing such activities have no detrimental effect on the residential amenity;
It was agreed between the parties at the hearing that the reference to self‑employment in this clause was not relevant to the matter on review, and the issue of potential amenity impacts has already been addressed.
In this context, the substantive issue is whether the proposed 'not‑for‑profit' Christian English language college serves the local residential neighbourhood.
The applicant submitted that the proposal would service the local residential neighbourhood in the following ways:
•As many students as possible should be accommodated within the local residential neighbourhood and therefore, the students being served by the proposal would be residents within that neighbourhood.
•Those households within the local residential neighbourhood that accommodated a student could gain an additional income of between $150 - $220 per week.
•Members of the local church would receive a benefit as they are able to exercise their skills and talents in serving others.
•The proposed use would attract legitimate users at times when the majority of residents have left the area for activities such as work or school, and surveillance of the public and private realms is most required.
•Because the Bassendean Town Centre is very close to the subject site, the local business community would gain additional business from students and staff.
The applicant also argued that a range of uses, such as schools, churches and child care centres, already occur in residential zones and could in the future potentially be excluded by a narrow interpretation of cl 4.2.1(e).
The respondent argued that a minimum of 50% of students would need to reside locally to meet the criteria of serving the local catchment and this had not been definitively established. More importantly, the respondent submitted that 'local catchment' should be interpreted as comprising existing rather than future residents.
The respondent also gave evidence that, with one exception, private schools in Bassendean are located on reserves (both regional and local) or in the town centre. This exception had started as a kindergarten which was a 'P' use under the previous scheme.
The construction of cl 4.2.1(e) has two aspects. The first seeks to limit non-residential uses in residential zones to those which serve the local residential neighbourhood. Logically, this suggests such uses would provide for a need within the neighbourhood. The second aspect seeks to ensure that such uses do not infringe the amenity of such areas. Given that the clause is used to evaluate the introduction of new uses within existing areas, it is difficult not to conclude that an institution which basically seeks to attract international students to the locality does not serve the existing local residential neighbourhood.
Thus, the Tribunal finds that while the proposed use clearly provides some local benefits, the use does not meet the criteria established by cl 4.2.1 and does not therefore meet the objectives of the scheme. For this reason, the application is dismissed.
Conclusion
The applicant in this matter seeks to establish a 'not‑for‑profit' Christian English language college at the existing premises of the Bassendean Presbyterian Church at No 14 - 16 (Lot 50) Broadway, Bassendean.
Essentially, the two determinative issues in this matter are whether the use could be regarded as incidental to the existing 'place of worship' use and, if not, whether the use complied with the objectives for the 'Residential Zone' which sought to limit non-residential uses to those of which the predominant function is to serve the local residential neighbourhood.
It is clear that historically the range of incidental uses carried out as part of the activities undertaken by churches has been broadening as the needs of their congregations have changed and evolved over time. Such incidental activities include pastoral care, social and educational activities for congregants, and, to an extent, community education.
It is also clear that the proposed 'not-for-profit' Christian English language college could provide benefits in terms of teaching opportunities for some congregation members, potential income for residents in the neighbourhood who provide accommodation for students, and increased income to the local business community. The proposed college would also strengthen the role of the church in terms of advocacy and pastoral care and broaden the possibilities for cultural exchange for the congregation.
However, in assessing the proposal against the relevant planning provisions, the Tribunal found the proposed use was not 'incidental' to the existing 'place of worship' use and did not serve the existing local residential neighbourhood.
In this context, the Tribunal found for the respondent.
Orders
For the above reasons, the Tribunal makes the following order:
The application for review is dismissed.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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