Belleville and Shire Of Coorow - [2009] WASAT 131

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BELLEVILLE and SHIRE OF COOROW [2009] WASAT 131

MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 19 MAY 2009

DELIVERED : 30 JUNE 2009

FILE NO/S: DR 425 of 2008

BETWEEN: DAVID BELLEVILLE
Applicant
AND
SHIRE OF COOROW
Respondent

Catchwords:

Town planning - Development application - Refusal - Caretaker's dwelling - Industrial zone - Accommodation in industrial areas - Land use conflict - Special circumstances - Whether approval of caretaker's dwelling in Industrial zone would create potential land use conflict

Legislation:

Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998
Planning and Development Act 2005 (WA), s 252
Shire of Coorow Town Planning Scheme No 2, cl 1.6, cl 4.2, cl 4.3.2, cl 4.3.3, cl 10.2, Sch 1, Table 1

Result:

The application for review is dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr P Webb (Acting as Agent)
Respondent: Mr S Lancaster (Representative)

Solicitors:

Applicant: Peter D Webb & Associates (Town Planners)
Respondent: Shire of Chapman Valley

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the Shire of Coorow of a development application for a caretaker's dwelling at No 4 (Lot 640) Tailor Street, Leeman.
The proposed development was the modification of part of an existing building into a caretaker's dwelling on a site located in an industrial area.
The principal issue that emerged for consideration was whether the approval of a caretaker's dwelling within the industrial area would create a potential for land use conflict and impact on the operation of future and existing businesses within the industrial area.
The Tribunal found that there were no special circumstances in this case and that the proposal could lead to possible land use conflicts, particularly as it was to be located within 300 metres of an existing concrete batching plant.
In considering the substantial merits of this case in light of the objectives of the current planning framework, and notwithstanding the prior approval by the Shire of Coorow of five caretakers' dwellings within the same industrial area, the Tribunal held that the proposal did not warrant approval.
The application for review was dismissed and the respondent's decision affirmed.

Introduction

These proceedings involve an application brought by Mr David Belleville (applicant), pursuant to s 252 of the Planning and Development Act 2005 (WA), for review of the decision of the Shire of Coorow (respondent or Shire) made on 15 October 2008 to refuse planning approval for a caretaker's dwelling at No 4 (Lot 640) Tailor Street, Leeman (subject site).

Site and Locality

The subject site is No 4 (Lot 640) Tailor Street, Leeman. It is rectangular in shape with a width and street frontage of 40 metres, a depth of 50 metres and a total area of 2,000 square metres. Currently accommodated on the subject site is a large shed divided into four storage units and a separate building containing a workshop, mezzanine storage area, office and verandah. It is the office area of the existing building which is proposed to be converted into a caretaker's dwelling.
Immediately to the west of the subject site is Lot 641 Tailor Street. This lot and the adjoining Lot 627 Lake Street currently accommodate a concrete batching plant business. According to evidence supplied to the Tribunal, the concrete batching plant is located on Lot 627 Lake Street.
Tailor Street contains 14 lots and is located within the Leeman Industrial Area (LIA). The LIA itself is located to the east of Indian Ocean Drive and is approximately 300 metres from the nearest residential zoned area which is to the west of Indian Ocean Drive, Leeman.

Planning Framework

The site is zoned 'Industrial' under the Shire of Coorow Town Planning Scheme No 2 (TPS 2). Clause 1.6 lists the aims of TPS 2, and includes:
•To assist the effective implementation of regional plans and policies including the State Planning Strategy.
•To ensure there is sufficient supply of serviced and suitable land for housing, employment, commercial activities, community facilities, recreation and open space.
•To provide for housing choice and variety with a community identity and high levels of amenity.
•To assist employment and economic growth by facilitating the timely provision of suitable land for retail, commercial, industrial, entertainment and tourist developments, as well as providing opportunities for home based employment.
Clause 4.2 of TPS 2 lists the objectives of the 'Industrial Zone' as:
•To provide for manufacturing industry, the storage and distribution of goods and associated uses, which by the nature of their operations should be separated from residential areas.
Schedule 1 of TPS 2 includes land use definitions and defines 'caretaker's dwelling' as 'a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant'.
The Zoning Table in Table 1 of TPS 2 lists a Caretaker's Dwelling as a 'D' use in an 'Industrial' zone. Under cl 4.3.2, it states:
'D' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval.
And under cl 4.3.3, Note 3 states:
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 TPS 2 includes the following matters which the Shire is to have due regard to:
(a)the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area;
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, which has been granted consent for public submissions to be sought;
(c)any approved statement of planning policy of the Commission;
…
(e)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
…
(i)the compatibility of a use or development with its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)The preservation of the amenity of the locality;
….
The Western Australian Planning Commission Planning Bulletin No 70 ‑ Caretakers' Dwellings in Industrial Areas (WAPC Bulletin 70) has the following objectives:
(a)To discourage the establishment of residential uses in industrial areas which may compromise the integrity of industrial areas and create unacceptable residential environments.
(b)To provide for caretakers dwellings in industrial areas in limited circumstances and subject to appropriate planning controls.
The following documents are of relevance to this review:
•Environmental Protection Authority (EPA) Guidance for the Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses (No 3, June 2005);
•Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998; and
•Carnamah-Coorow Coastal Strategy Report (May 2008)

Proposed development

The proposed development is the modification of part of an existing building on the subject site to be used as a caretaker's dwelling. The dwelling will consist of a kitchen, reception, office, bathroom and two bedrooms.

Council's decision

The application for a caretaker's dwelling was considered by Council at its meeting on 15 October 2008 and refused for the following reasons:
a)The Council is not satisfied justification offered in support of the caretaker[']s dwelling is sufficient to warrant planning consent being issued;
b)The application fails to provide any substantiated justification for a caretaking residence, such as a demonstrated need for on-site security due to a high level of crime in the area;
c)Lot 640 is located within the 300 ‑ 500m setback distance from the existing concrete batching plant, deemed to be a required buffer for a sensitive land use to a residential development as prescribed by the Environmental Protection Authority.
d)The Council is of the view the grant of planning consent for the caretaker residences will erode the primary purpose and function of the Leeman Industrial Area, and over time may compromise a range of existing and future industrial uses and businesses resulting in serious conflict issues arising between residential and industrial uses.
e)The Council is concerned the continued promotion of caretaker dwellings in the Leeman Industrial Area without sufficient justification will basically result in the development of the area as a defacto [sic] residential estate that is likely to generate on-going conflict and compounding enforcement issues for the Shire.
f)The application is contrary to the Council's Local Planning Policy 6.6.7 ‑ Residential Living in Industrial Zoned Areas and the Western Australian Planning Commission[']s Planning Bulletin No.70, whereby both Policy documents discourage the establishment of residential uses in industrial areas which may compromise the integrity of industrial areas and create unacceptable residential environments.

The issues

The principal issue that arises for determination in this review is whether the approval of a caretaker's dwelling within the LIA will create a potential land use conflict and impact on the operation of existing or future businesses located within the LIA. The Tribunal will address this with regard to the objectives of both TPS 2 and WAPC Bulletin 70.

Whether the proposal is consistent with the objectives of cl 4.2 of TPS 2

Clause 4.2 of TPS 2 lists the objectives of the 'Industrial Zone' as:
•To provide for manufacturing industry, the storage and distribution of goods and associated uses, which by the nature of their operations should be separated from residential areas.
The respondent was represented in this matter by Mr Simon Lancaster, Manager of Planning and Development with the Shire of Chapman Valley. It is Mr Lancaster's evidence that:
The approval of a caretaker's dwelling would create potential for land use conflict and complaint that can prevent the continuing operation of businesses within an Industrial zone, and prevent the establishment of businesses within an Industrial zone.
He is of the view that cl 4.2 of TPS 2 is specific with regard to the purpose of the 'Industrial Zone' in that it is to cater for industrial uses and 'uses that may conflict or compromise the primary intent of this zone should not be supported'.
Mr David Hadden, an environmental health officer employed by the Shire, gave evidence regarding the possible health impacts of noise, dust and sand drift. It was his belief that 'industrial activities and caretaker uses do not mix well' as 'caretakers living in industrial areas expect residential zoned area amenity which does result in complaints being registered against neighbouring businesses'. Mr Hadden provided evidence of three recent complaints from caretakers, primarily regarding motorbikes' noise in surrounding bushland.
Mr Peter Webb, a town planner and the applicant's representative, asked if there had been any complaints arising from the operation of the existing concrete batching plant or any other operation on the LIA. Mr Hadden replied that there had been no complaints but the plant currently operated intermittently and the concern was that it may operate more frequently in the future.
The respondent is also concerned that the subject site is located less than 300 metres from the existing concrete batching plant which is less than the EPA recommended separation distance of 300 ‑ 500 metres between industrial and sensitive land uses.
The applicant's response is that the respondent has placed undue weight on the EPA 'Guidance for Assessment of Environmental Factors ‑ Separation Distance between Industrial and Sensitive Land Uses' and that in any case, the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 apply and have strict requirements regarding the storage, movement and processing of materials, as well as the prevention of polluting materials being emitted beyond the boundary of the site.
The Tribunal agrees with the respondent and finds that the approval of a caretaker's dwelling in the LIA, and particularly within 300 metres of an existing concrete batching plant, does not satisfy the objectives of cl 4.2 of TPS 2 as it gives rise to potential land use conflicts between residents and both existing and future business operators.

Whether the proposal is consistent with the objectives of WAPC Bulletin 70

WAPC Bulletin 70 discusses the issues relating to caretaker dwellings in industrial zones and in particular the issue of land use conflict. It addresses the issues with regard to four categories which include:
•Environment ‑ the potential of industrial activities to cause adverse impacts on the amenity of residents through noise, dust, odour and vibration;
•Community ‑ poor accessibility to services and lack of sense of neighbourhood;
•Economy ‑ financial viability of businesses may improve if not required to purchase residential accommodation and may reduce demand on existing residential land; and
•Infrastructure ‑ operation and expansion of key infrastructure can be restricted and there may be an increased demand for physical and community infrastructure.
In light of these issues, the WAPC Bulletin 70 identifies the following principles to apply in the preparation of town planning schemes and local planning policies:
•Caretakers' dwellings should be a prohibited use in zones which are designed to accommodate strategic industry and industries of a noxious or hazardous nature and zones which are in proximity to existing or proposed major infrastructure or other potentially incompatible uses.
•Caretakers' dwellings should generally be prohibited in zones designed for general industrial uses unless there are special circumstances which justify their establishment in such areas.
•Caretakers' dwellings may be a discretionary use in industrial areas accommodating light, service or commercial activity subject to specific provisions included in the scheme which emphasise the incidental nature of the dwelling to the predominant industrial land use and limit the floor area of the dwelling to not more than 100m2 in accordance with the model provision set out below.
With regard to the relevance of WAPC Bulletin 70, Mr Webb argues that it 'contains statements which are too generalised and do not recognise the particular characteristics of the Leeman Industrial Area'. Mr Webb is of the opinion that the proximity of the industrial area to the residential area to the west of Indian Ocean Drive is inappropriate and consideration should be given to rezoning the LIA to 'Light Industry' as suggested in the Carnamah ‑ Coorow Coastal Management Strategy Report (May 2008).
This report identified the existing LIA as an area that may be suitable for re-zoning from 'Industry' to 'Light Industry' in order to enable further urban development within the Leeman town site. The report did not provide an analysis of the existing industries within the LIA.
The respondent's position is that, notwithstanding the recommendations of the Carnamah ‑ Coorow Strategy Report, the LIA is currently zoned 'Industry' and is unlikely to be rezoned to 'Light Industry' as there is no other land currently identified as suitable for general industrial use. The report supports this and states:
The implication of this would be that the Council would need to find a replacement area for general industries in a location where they are adequately separated from urban development (for the foreseeable future). This land search is beyond the scope of this Strategy brief but should be set in place sooner rather than later.
The Tribunal is of the view that whether or not the LIA is zoned 'Light Industrial' in the future, it is currently zoned 'Industry' and the matter will be considered in that context.
In relation to the proposed caretaker dwelling, Mr Lancaster argues that it will introduce a sensitive land use and consequently 'impinge on the Industrial zone and create potential for restricting the operation and establishment of industrial land uses within the only Industrial zone within the Leeman townsite'.
With regard to special circumstances, the applicant originally expressed a need for affordable accommodation for an employee as one reason for the caretaker's dwelling. Another reason was the provision of on‑site security for the existing storage business, in particular to protect valuable equipment associated with stored boats.
In this case, the respondent is of the view that providing affordable accommodation for an employee is not a sufficient reason for approval. Nor does the respondent believe there is a security concern. Mr Hadden provided, as an attachment to his witness statement, an email from a senior constable of the Leeman Police Station stating that there had been three reported property offences in the LIA since March 2004 (one burglary and two stealings).
Mr Hadden also provided a list of five prior approvals of caretakers' dwellings between July 1987 and August 2006 in the Leeman Industrial Area.
It was the evidence of the applicant that prior to purchasing the subject site he made enquiries with the Shire regarding their position on caretakers' dwellings in the industrial area. He was told of the five previous approvals and it was his belief that 'it was a discretionary use and that approval would be given for a Caretaker's Dwelling when there was an active business on the site'.
The property was purchased in January 2007. Approval for a storage business and associated office and workshop was granted in September 2007. The applicant purchased Lot 629 Lake Street, which abuts the rear of the subject site, in September 2007. In March 2008 an application was made to convert part of the offices to a caretaker's dwelling. This application was not processed by the Shire. The applicant re‑applied for approval of a caretaker's cottage as well as approval for 12 storage units for Lot 629 Lake Street in September 2008. The caretaker's dwelling was refused development approval while the storage units were granted approval.
The respondent is of the view that the approval of further caretakers' dwellings in the industrial area will result in the establishment of a 'de facto' residential estate which may cause conflict and health issues to the detriment of both the residents and industrial operations. Mr Webb argues that this is unlikely as the occupant of any approved caretaker dwelling is required to be associated with an approved industrial business.
It is the Tribunal's role to apply sound town planning principles to the merits of each case and the previous approval of caretakers' dwellings in the LIA does not mean that this proposal should necessarily be approved.
The WAPC Bulletin 70 proposes that caretakers' dwellings should be prohibited in areas zoned suitable for general industry unless special circumstances exist. The subject site is located within an area zoned suitable for general industry and the Tribunal is not convinced that special circumstances exist which would warrant the approval of this proposal.
The Tribunal finds that the proposed development is not consistent with the objectives of WAPC Bulletin 70.

Conclusion

In considering the merits of this particular case in light of the objectives of both TPS 2 and the WAPC Bulletin 70, the Tribunal does not consider the proposal warrants approval. Although a caretaker's dwelling is a discretionary use in the LIA under TPS 2 and can be considered in special circumstances according to the WAPC Bulletin 70, in this case the Tribunal determines that there are no special circumstances and also that there is a potential for land use conflict which may compromise the general industrial nature of the area.

The application for review is therefore dismissed and the respondent's decision to refuse the proposed caretaker's dwelling affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 15 October 2008 to refuse development approval for a caretaker's dwelling at No 4 (Lot 640) Tailor St, Leeman is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER