| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOWMAN and TOWN OF VICTORIA PARK [2013] WASAT 61 MEMBER : MR J JORDAN (MEMBER) HEARD : 31 JANUARY 2013 DELIVERED : 29 APRIL 2013 FILE NO/S : DR 352 of 2012 BETWEEN : MRS N BOWMAN Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords: Planning Development Refusal Retrospective application for use of grouped dwelling as short term accommodation Council policy Onsite parking Impact on amenity of locality Management requirements Legislation: Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)
Town of Victoria Park Town Planning Scheme No 1, cl 36(5)
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Result: Application for review dismissed. Refusal of proposed use of grouped dwelling as short stay accommodation confirmed.
Summary of Tribunal's decision: This proceeding involved an application for retrospective planning approval to use as short term accommodation a grouped dwelling at No 1C Hampton Street, Burswood. The Tribunal found that the proposed use would not be consistent with orderly and proper planning. This was because the proposed use would not satisfy sufficient criteria for such a use under the relevant policy, would have the potential to contribute to the adverse impact on the local amenity by movement of vehicles and people, and because of the potential for a precedent to be set for such a use in this locality in conflict with the objectives and intent of the local planning precinct. The Tribunal dismissed the application for review.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr R Cruickshank
Solicitors:
Applicant : N/A
Respondent : Town of Victoria Park
Case(s) referred to in decision(s):
Burns and City of Fremantle [2006] WASAT 268
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Schotte and Town of Victoria Park [2011] WASAT 134
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This proceeding involved an application by Mrs Natalie Bowman (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the refusal by the Town of Victoria Park (respondent or Council) to grant retrospective planning approval to use as short term accommodation a grouped dwelling, No 1C, at Lot 8 Strata Lot 2 Hampton Street, corner Teague Street, Burswood (site).
Site and locality 2 Hampton Street runs northnorth-east from a 'T' junction with Teague Street along the top of a ridge. The site is on the western side of Hampton Street on the corner of Teague Street and contains four grouped dwellings. Facing Hampton Street are grouped dwellings No 1B and No 1C, and, on the corner, No 8B Teague Street. To the rear of these three dwellings on the site is No 8A facing Teague Street. 3 The site is terraced down to No 8A because of the topography. The view from the rear of the dwellings on the site facing Hampton Street at both ground and first floor level is toward the city skyline. Number 1C has on the ground floor a single garage and a lounge room, family room, dining room, kitchen, laundry and toilet. The upper floor has four bedrooms and balconies to the front and to the rear. 4 To the north along Hampton Street on the same side as the site are grouped dwellings and single residences of one or two storeys. On the east side of Hampton Terrace, directly opposite the site, is a three story block of multiple dwellings, and diagonally opposite are two 10 storey blocks of multiple dwellings. To the north along the east side of Hampton Street are a mix of single dwellings and multiple dwellings and a churchrun hostel for people with addiction problems.
Planning framework 5 The site and lots on the west side of Hampton Street are zoned Residential with a density coding of R40 under Town of Victoria Park Town Planning Scheme No 1 (TPS 1). On the east side of Hampton Street, the Residential zoned lots have a density coding of R60. 6 Under TPS 1, the site is located within Precinct P6 Victoria Park Precinct. The statement of intent refers to Precinct 6 remaining as (Page 4)
essentially low to medium scale residential development. It states that multiple dwellings will not be permitted in areas coded R40. 7 The proposed use of No 1C for short term accommodation falls under the land use classification Residential Building in TPS 1 which, by definition, has the same meaning as given to that use in the, now, Residential Design Codes of Western Australia (2010) (Codes). Under the Codes it states: Residential building 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 hospital or sanatorium, a prison, a hotel, a motel or a residential school. 8 Under TPS 1, a residential building is an 'AA' use within the Residential zone, which means that the use is not permitted unless the Council exercises discretion to grant approval. 9 Clause 36(5) of TPS 1 lists matters to which it is necessary to have regard when considering an application for planning approval. These include: (a) the provisions for the scheme … (b) any relevant planning policy; (c) any relevant precinct plan; … (f) any submission accompanying or related to the application; (g) the orderly and proper planning of the locality; (h) the conservation of the amenities of the locality[.] 10 The Council adopted Policy PLNG 17 'Specialised forms of accommodation other than dwellings' (PLNG 17) in April 2012. PLNG 17 has been 'designed to guide and facilitate the appropriate (Page 5)
provision of specialised forms of accommodation other than dwellings occupied on a permanent basis'. 11 Under PLNG 17 there are identified three different types of 'Residential Buildings'. The proposed use of No 1C is identified as within the type 'Short term accommodation' and, within this category, as an example of 'short stay rental accommodation'. PNLG 17 includes general provisions and provisions specific to short term accommodation. 12 Clause 2.2.4.2 of PLNG 17 provides that short term accommodation will be subject to the parking requirement for 'commercial accommodation' in Policy 5.1 'Parking Policy'. The parking requirement for 'commercial accommodation' in is one car space for every bedroom or one for every three beds provided, whichever is the greater. It was common ground that under that formula, four onsite parking bays were required for the proposed development, but there is discretion to vary the parking requirement.
Proposed use 13 The applicant lives in Grass Patch, a farming locality about six hours' drive from Perth. She and her family use No 1C several times a year when attending football matches, visiting family members or attending to business. The applicant seeks planning approval for No 1C to be used for the purpose of short term accommodation for the remainder of the time. Bookings are to be for not more than six people and for not less than three nights. Parking is available on site for a single car in the garage, and two vehicles in the driveway. The crossover and parts of the verge were also available for parking, but the applicant's submission states that paying customers had not yet required verge parking. 14 The use was advertised on an internet site and bookings were arranged with the applicant by internet or telephone. It was said that prospective customers were vetted for suitability by answers on the application form, in telephone conversation and on the internet. Customers were subject to a use agreement, a code of conduct and a bond of $500. A local cleaner prepared the premises for each new arrival.
The issues 15 The issues identified by the parties can be listed as follows: 1) whether the use of the dwelling as short term accommodation has the potential to have an impact on the amenity of surrounding residents; (Page 6)
2) whether the use of the dwelling for short term accommodation is appropriate within a residential area within a Residential zone and consistent with the statement of intent of the Victoria Park Precinct; 3) whether approval of the proposed use would undermine the standing of the Council's policy on short term accommodation; and 4) whether approval of the proposed use would be in accordance with orderly and proper planning.
Discussion
Issue 1: Whether the use of the dwelling as short term accommodation would have an impact on the amenity of surrounding residents 16 The respondent called as a witness Ms Lynette Livesy, who lives in a multiple dwelling in the three story building directly opposite the site. Ms Livesy said she had 'vigilantly observed' what was occurring at No 1C. She then reported her observations to the Council and asked that the matter be investigated. 17 Ms Livesy said that she had observed after hours activity and been disturbed by noise from people arriving and leaving in vehicles. She produced photographs of two incidents of vehicles, said to be associated with activity in No 1C parked in the street and on the verge adjacent to No 1C and the adjoining dwellings. 18 Mr Christian Buttle, a town planner, was called as a witness. Mr Buttle was employed at the Town of Victoria Park at the time that the application to use No 1C, for short term accommodation was assessed and determined. Mr Buttle said that when the proposed use was advertised, ten letters of objection were received, all from the owners of the multiple dwellings at No 4 Hampton Street, opposite the site. A petition signed by other neighbours on the opposite side of Hampton Street was also received. 19 Mr Buttle acknowledged that the site was well managed from an 'appearance perspective', but was concerned that the use was being managed from the applicant's home six hours' drive from Victoria Park. It was Mr Buttle's submission that because the use had been operating and the application was for retrospective approval, it was possible to have regard to the actual impact the use had had while operating. He was of (Page 7)
the opinion that while Hampton Street was an area of medium to high density, the proposed use, when previously operating, had a negative impact on the residential amenity of the immediate locality. This had been the result of traffic movements, vehicles in excess of the two parking spaces he considered could only be provided on site because of vegetation and noise generated by the activities of the short stay residents. In his submission, the potential for adverse amenity impacts from the proposed use remained. 20 The applicant called as witnesses Mr Martin Weight and Mr Ross Fisher, the residents of the respective dwellings abutting each side of No 1C. Mr Weight said that he had not been disturbed by noise from No 1C, and the parking of vehicles by customers had not caused him any difficulty. 21 Mr Fisher pointed out that the rear outdoor living areas of No 1C adjoined his outdoor area and he had not noticed or been disturbed by what objectors had described as 'partying' or by other noise. Vehicle movements and occasional parking on his verge by the guests had not been a problem. 22 Both Mr Weight and Mr Fisher referred, in photographs provided by the parties, to vehicles that consistently parked on the verge which appeared to belong to residents of the multiple dwellings on the east side of Hampton Street. 23 The applicant emphasised the control that was exercised over those booking the short term accommodation by a management plan, the code of conduct and booking agreements. Applicants for accommodation were vetted, with an emphasis on families. Guests had to pay for premium accommodation and a bond of $500. Any guests who did not comply with the requirements were evicted. The applicant said that two family members in Perth could immediately attend to any complaints and the adjoining neighbours had the appropriate telephone numbers. She or the Council had received no complaints about the behaviour of customers. 24 It was the applicant's submission that by comparison to the proposed use, there was a greater impact on the amenity of the street from the 'comings and goings', varied work hours, parking, vehicle movement and noise associated with the residents of the blocks of 'rental' accommodation on the other side of Hampton Street. The applicant considered that any impact on Hampton Street and the neighbours would be insignificant by comparison. The applicant pointed out that, of the letters of objection (Page 8)
received by the respondent from the block of units over the road, three were signed by the same person relating to different units, and two other letters were signed by the same person and appeared to come from owners, not residents personally. 25 The applicant provided a copy of the 'Management Plan' for the use. Included in the plan were copies of the information given to guests, which included rules for use of the premises, booking conditions, arrangements for a bond and a copy of the 'industry' standard code of conduct. Expected standards of behaviour were clearly set out. Telephone numbers of the two family members who reside in Perth were included for problems with the accommodation. The applicant referred to Burns and City of Fremantle [2006] WASAT 268 (Burns) in which it was found effective management arrangements can overcome or minimise any behaviour incidents. 26 The Tribunal accepts that a management plan can be prepared for the use, as illustrated by the documents provided, and additions or variations could be made to the documents if necessary. The Tribunal also considers it is not necessary that a manager reside on site as suggested by the respondent, although the management of the use from the applicant's home would appear to be to the other extreme, notwithstanding the availability of communication technology. 27 In Burns, the short stay use was proposed for a mixed use development that included residential, commercial and a bed and breakfast use within the tourist area of Fremantle. The proposed use is in a residential street. The Tribunal remains concerned that the use is managed from Grass Patch. It is not considered adequate to have the immediate control of the use relying on others, albeit family members, volunteering to respond to particular circumstances. 28 The Tribunal had before it photographs of cars, a bus and tradesmen's vehicles parked on or near No 1C at various times. The applicant said some of these vehicles were those of her family, but there was dispute whether the other vehicles were used by customers of No 1C. 29 The Tribunal accepts that the amenity of Hampton Street is affected by the movement of vehicles and cars associated with the residents of the multiple dwelling buildings on the east side of Hampton Street. The Tribunal does not agree, however, that the existing environment provides a reason for allowing the proposed use as a matter of course. (Page 9)
30 There were conflicting comments made before the Tribunal about the impact of the proposed use on the amenity of the residents of Hampton Street. The Tribunal has formed the view that the proposed 'commercial accommodation' use of No 1C has the potential to introduce occasions where the local amenity would be affected by movement of vehicles and people not usual in a residential area, particularly after hours. This might be viewed as extending to the western side of Hampton Street, the impact from such activity attributed by the witnesses to some people in the multiple dwellings on the east side of the street.
Issue 2: Whether the use of the dwelling for short term accommodation is appropriate within a residential area within a Residential zone and consistent with the statement of intent of the Victoria Park Precinct 31 The 'statement of intent' for the Victoria Park Precinct includes the following: The Victoria Park Precinct will remain as attractive and essentially low to medium scale residential area set on some of the highest land within the locality.
…
Development or expansion of existing nonresidential uses in the precinct will be limited, to safeguard residential amenity. The existing industrial use should desirably move to a more suitable location.
32 Mr Buttle referred the intention for the Victoria Park Precinct to remain a low to medium scale residential area. He describes a residential area as comprising mostly of single and grouped dwellings used for human habitation on a permanent basis. In his submission, short term accommodation was not considered a dwelling as it did not involve permanent habitation. 33 As stated above, short term accommodation falls within the use class Residential Building and discretion must be exercised to allow such a use in the Residential zone. Whether the use of No 1C as a residential building is to be considered appropriate in this residential area is assisted by the conclusions reached in the other issues identified by the parties. 34 Under the consideration of Issue 1, it was determined that while there was limited evidence of any substantial prolonged impact on the amenity of locality from the use of the premises for short term accommodation to date, the potential certainly remains. If the incidents that have caused some neighbours annoyance were to become more commonplace, then the (Page 10)
potential for a detrimental impact on the locality of the amenity would be realised. 35 Further to reaching a conclusion on this matter, it is then necessary to examine the remaining issues.
Issue 3: Whether approval of the proposed use would undermine the standing of the Council's policy on short term accommodation 36 Mr Leigh Parker, a planner from the Town of Victoria Park, was called as a witness by the respondent. Mr Parker referred to the Tribunal's decision in Schotte and Town of Victoria Park [2011] WASAT 134 (Schotte). The Tribunal upheld an application for a review of the respondent's refusal to grant planning approval for the use of a grouped dwelling as short term accommodation. He said the decision in Schotte had highlighted that the objectives for the Victoria Park Precinct, and generally in TPS 1, were general in nature in respect to proposed short term accommodation use. 37 Mr Parker said PLNG 17 was adopted by the Council in April 2012 to provide specific policy guidance for the determination of applications for short term accommodation. Under PLNG 17, the respondent was able to apply specific location, design and management criteria. The objective was to protect and minimise the potential for adverse impacts on the amenity of residential areas and to encourage the location of short term accommodation in areas convenient to the needs of its occupants. Clause 2.2.1 of PLNG 17 lists as a preferred location: i. On a Primary, District or Local Distributor road; ii. Within 400 metres of a train station or high frequency bus route stop; iii. Within 400 metres of an area of tourist potential, such as adjacent to the Swan River foreshore, an entertainment centre or other attraction; iv. In or within 400 metres of a District Centre zone, Commercial zone or other location providing convenience shopping and access to everyday goods and services[.] 38 The respondent said that the proposal for No 1C was the first to be assessed against the provisions of PLNG 17. Mr Parker said that in his opinion, the application did not comply with the PLNG 17 and if it were to be approved then this would weaken the standing of PLNG 17. It was his concern that an approval would result in other applications being made (Page 11)
for short term accommodation either in noncompliant locations or without the necessary management measures. 39 The Tribunal must point out that the fact that this application may be the first to be considered under PLNG 17 is not relevant to determining the merits of the proposed use. The proposal is to be considered on its merits, having regard to the provisions of TPS 1 and the guidance available in the relevant policies, including PLNG 17. The conclusion reached, therefore, would not undermine Policy PLNG 17.
Issue 4: Whether approval of the proposed use would be in accordance with orderly and proper planning 40 The Tribunal has formed the view that the proposed use would not be consistent with orderly and proper planning. 41 As found in Issue 1 above, the Tribunal is satisfied that a suitable management plan could be agreed for the proposed use. It was also found, however, that the proposed use has the potential to make a negative contribution to the local amenity. In this regard, the proposal would be inconsistent with the objectives for TPS 1 and the Victoria Park Precinct. 42 The applicant produced a sketch with circles drawn to illustrate the distance from the various uses and services listed in PLNG 17 as relevant to the location of short stay accommodation. The site is within 400 metres of retail and commercial uses in Albany Highway and bus stops. It is further than this to the other items listed at cl 2.2.1 of PLNG 17. The site is on a residential street, not a distributor road. 43 As found above, the Tribunal has formed the view that the proposed use is inconsistent with: The proposed use is therefore found to be inconsistent with the orderly and proper planning of the locality. 44 The issue of whether the proposed use might set an undesirable precedent was raised with the parties. The applicant quite properly responded by saying the proposal must be assessed on its individual merits. The applicant's submission was that, because of the standard of (Page 12)
the accommodation, its location and the way it would be managed, the use would not set a precedent for the same use in other premises at a lesser standard than that proposed. 45 As set out above, the Tribunal has determined that the proposed use is not consistent with orderly and proper planning. The proposed use is not, therefore, in itself, unobjectionable. The Tribunal is also of the view that there would not be any means to distinguish this proposal from later, similar applications for other premises in the immediate locality. The Tribunal has therefore concluded that precedent is a relevant consideration (Nicholls and Western Australian Planning Commission) [2005] WASAT 40; (2005) 149 LGERA 117 and the precedent set would be undesirable for maintaining the essentially residential character of the Victoria Park Precinct. 46 The Tribunal has therefore decided to dismiss the application for review.
Orders |