Braig Pty Ltd and City Of Joondalup
[2007] WASAT 283
•26 OCTOBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | BRAIG PTY LTD and CITY OF JOONDALUP [2007] WASAT 283 |
| MEMBER | : | MR J JORDAN (MEMBER) |
| HEARD | : | 30 JULY 2007 & 31 JULY 2007 |
| DELIVERED | : | 26 OCTOBER 2007 |
| FILE NO/S | : | DR 19 of 2007 |
| BETWEEN | : BRAIG PTY LTD |
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Refusal - Child care centre - Number of children and play areas - Application of locational requirements of policy - Impact on amenity - Noise of children playing - Impact of traffic - Impact of parking - Orderly and proper planning
Legislation:
Child Care Services Act 2007
(WA) reg 32(2), reg 32(4), reg 84
[2007] WASAT 283
City of Joondalup District Town Planning Scheme No 2, cl 6.6, cl 6.8.1, cl 6.8.2,
Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Result:
The application for review is allowed
The decision of the respondent of 12 December 2006 to refuse the development
of a child care centre at Lots 53 and 54 (Nos 34 and 36) Bridgewater Drive,
Kallaroo is set aside and approval is granted subject to conditions
Category: B
Representation:
Counsel:
| Applicant | : | Mr PD Webb (Acting as Agent) |
| Respondent | : | Mr S Allerding (Acting as Agent) |
Solicitors:
| Applicant | : | Peter D Webb & Associates (Town Planners) |
| Respondent | : | Allerding & Associates (Town Planners) |
Case(s) referred to in decision(s):
Nil
[2007] WASAT 283
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The City of Joondalup refused an application for planning consent by Braig Pty Ltd to develop two houses at No 34 and No 36 Bridgewater Drive, Kallaroo into a child care centre.
2 The Council refused the application because it considered that the
noise and traffic generated by the proposed number of children on the site would have an adverse impact on the amenity of the locality and the neighbours. The Council was also concerned that the location was not consistent with the requirements of its policy on child care centres.
3 Both parties engaged acoustic engineers who agreed that subject to
conditions relating to boundary fences and locations of play areas for different age groups, the development could be made to satisfy the Environmental Protection (Noise) Regulations 1997 (WA).
4 From the evidence and submissions of the parties, the Tribunal
formed the view that noise, traffic and parking impacts on the amenity of neighbours and the local residential area could be adequately addressed and that the locational criteria of the policy satisfied. The Tribunal concluded that, having regard to the matters to be considered under the town planning scheme and the Council policy on child care centres, the proposed development, subject to appropriate conditions, would be consistent with the orderly and proper planning of the locality and could be allowed.
Introduction
5 These proceedings involve an application by Braig Pty Ltd
(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 Joondalup (respondent or Council) to refuse development approval for a child care centre at Lot 53 (No 34) and Lot 54 (No 36) Bridgewater Drive, Kallaroo (No 34 and No 36 or together, the site).
6 On the afternoon of the first day of the hearing, the Tribunal
conducted a view of the site, the adjoining park and the immediate neighbourhood in the company of representatives of the parties. Mrs Fleur Manners of No 38 Bridgewater Drive also kindly let the Tribunal view the site from both her front and back yards.
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Site and locality
7 The site is on the southern side of Bridgewater Drive. No 34 has an
area of 817 square metres and No 36 has an area of 733 square metres. On No 34 is a single house, previously used as a medical practice for one practitioner. This use ceased about five years ago and since then it has been used as a residence. On No 36 is a second single house. To the west of No 36 is No 38, a single house on the corner of Bridgewater Drive and Shelley Place, a cul-de-sac. At the southern rear boundary of No 34, No 36 and No 38 is Lot 56 Shelley Place on which there is a single house.
8 To the east, No 34 has a common boundary with an area of public
open space, Whitfords West Park. This has a frontage of about 20 metres to Bridgewater Drive but fans out to the south to have an extensive boundary to Whitfords Avenue and an area of about 2.7 hectares. East of the open space along the Bridgewater Drive are further single residential lots.
9 Directly opposite the site are single residential lots. Abutting the
eastern boundary the house opposite No 34 is a pedestrian access way
which separates that lot from the Springfield Primary School.10 Bridgewater Drive is a loop that extends about a kilometre
north-south and about 500 metres east-west. It is situated centrally to a residential cell of a grid bounded to the east by Marmion Avenue and the south by Whitfords Avenue, both labelled as district distributor roads and to the west by Dampier Avenue and north by Mullaloo Drive, both labelled local distributor roads. Feeding onto and having access to the loop of Bridgewater Drive are smaller loops and cul-de-sacs of single residential development, a central park, a small shopping centre at the central eastern section and at the southern end, the Springfield Primary School. Access from Bridgewater Drive to the distributor roads is via short connecting residential access streets.
11 From Whitfords West Park, there is a pedestrian underpass south
under Whitfords Avenue which leads to Whitfords City, a regional
shopping centre with associated commercial development and cinemas.
Planning framework
12 No 34 and No 36 are both zoned residential in the respondent's
District Planning Scheme No 2 (DPS 2). In the zoning table of DPS 2, a child care centre is a "D" use in the residential zone. A "D" use is a use
[2007] WASAT 283
that is not permitted unless Council exercises discretion under cl 6.6 of
DPS 2.
One of the objectives of the residential zone is:
"The residential zone is intended primarily for residential development in an environment where high standards of amenity and safety predominate to ensure the health and welfare of the population."
14 Clause 6.8.1 of DPS 2 prescribes the matters to which Council is
required to have due regard when considering applications for planning
approval. These include matters such as:"(a) interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
...
(d) any planning policy of the Council adopted under the provisions of clause 8.11; ... (f) any policy of the Commission or its predecessors or successors or any planning policy adopted by the Government of the State of Western Australia; ... (i) the comments or wishes of any objectors to or supporters of the application;
… (k) any other matter which in the opinion of the Council is relevant."
Clause 6.8.2 of DPS 2 sets out what Council is required to consider in any planning application. These include:
"(a) the nature of the proposed use and its relationship to the
use of other land within the locality;[2007] WASAT 283
(b) the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building; (c) the nature of the roads giving access to the subject land; (d) the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development; (e) any relevant submissions or objections received by the Council; and (f) such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise."
A child care centre is defined as follows under Sch 1 of DPS 2:
"... means premises used for the daily or occasional care of children in accordance with the Community Services (Child Care) Regulations 1988" (now the Children and Community Services (Child Care) Regulations 2006 (WA) (Child Care Regulations)).
17 Clause 6.8.1(d) of DPS 2 provides that Council may prepare policies
and the Council has adopted a planning policy for child care centres, Policy 3-1: Child Care Centres (Policy 3-1). The purpose of Policy 3-1 is stated to be:
"... to provide guidance for the location and development of Child Care Centres to maximise user convenience and maintain a high level of amenity in residential areas."
18 Under the heading "Location", Policy 3-1 includes locational criteria,
including in respect of the road hierarchy and neighbouring uses. These
are addressed below in the discussion on the issues.19 The parties referred to a map produced by Main Roads
Western Australia (MRWA), Sheet No 4 of 11, titled "Perth Metropolitan Area Functional Road Hierarchy", dated 3 August 1999 (tab 16 of the s 24 bundle). This shows the MRWA designation of roads as primary distributor, district distributor (A), district distributor (B), local distributor, and access road.
[2007] WASAT 283
A further document referred to by the parties is the Western Australian Planning Commission Policy DC 1.4: Functional Road Classification for Planning (DC 1.4). Specifically referred to was figure 1, "Illustrative Layout of Roads in Network".
Proposed development
21 The plan of the development considered by the respondent was the
subject of mediation sessions between the parties. As a consequence of those discussions, the development proposal before the Tribunal was, by consent, that shown on the plan put into evidence as Exhibit 16 with the date 31 July 2007 added by the Tribunal.
22 The proposed development would retain the houses on each of the
two lots but adapt them for the child care centre use. The building on No 34 would be renovated to provide the entrance, an office, separate areas for "schoolies" and toddlers, and a toilet. That building would be connected to the building on No 36 by the erection of a kitchen between and attached to both buildings. The house on No 36 would be converted to a staffroom, three areas marked "kindy", "babies" and "cots", and a toilet. The western side of the building, at a setback of 1.5 metres from the western boundary, would be extended to within 1.6 metres of the rear boundary by the addition of a laundry and a store. The western elevation could contain no openings. Behind what was No 36, bounded by the rear boundary, the western side extension and the main building would be outdoor play areas demarcated with 1 metre high fences. An area adjacent to the southern boundary is shown on the plan marked for babies, another area marked "kindy" and a third marked "toddlers". At the rear of what was No 34, and adjacent to the eastern boundary, would be an area with the designation "schoolies". At the front of No 34, the parking area of the former doctor's surgery, with its own crossover, would be converted to a parking area of 12 spaces, two being marked for staff. In front of the former house on No 36 would be a second crossover to a separate parking area of five staff bays and one disabled parking bay.
The applicant listed the number of children in different categories to
be:
Babies (0 - 2 years old) 8 Toddlers (2 - 3 years old) 18
Kindy (3 - 5 years old) 30 "Schoolies" (6 - 12 years old) 20 [2007] WASAT 283
Council's decision
The respondent refused the application at its meeting on 12 December 2006, for the following reasons:
"1. The traffic impact of the development will have an
adverse and potentially dangerous affect on the locality.2. The proposed development is not considered to be located in the preferred location for Child Care Centres, as encouraged by Policy 3.1.1, as it is located adjacent to residential properties. 3. The increased intensity of uses will adversely impact upon the amenity of the adjoining and nearby residential properties. 4. The commercial nature of the proposed use is not compatible with the existing uses of other land within the locality. 5. The proposed design of the development would adversely impact the amenity of adjoining properties by way of the building bulk that will be created by the proposed setback reduction [sic]."
The issues
From the submissions of the parties, the issues that arise in this
matter are:
1) Whether the proposal is consistent with orderly and proper planning;
2) Whether the proposal will impact on the amenity of the area and adjoining properties by way of noise;
3) Whether the proposal will significantly impact upon the amenity of the area and adjoining properties by way of traffic; and
4) Whether the proposal will significantly impact upon the amenity of the area and adjoining properties by way of car parking.
[2007] WASAT 283
Whether the proposal is consistent with orderly and proper planning
26 It was the respondent's contention that DPS 2 and Policy 3-1
provided a proper measure of orderly and proper planning. These set out the Council's strategic intention for the location of child care centres and it was submitted that the proposed development would be inconsistent with this intention.
27 The applicant generally accepted the respondent's contention that the
planning instruments set out the strategic intention of the Council, but disagreed with the respondent's conclusions. It was the applicant's submission that the proposed development was consistent with orderly and proper planning because it met the locational criteria of Policy 3-1 and the planning objectives of DPS 2.
Locational criterion 3 of Policy 3-1 is headed "Existing Child Care Centres" and states:
"When submitting an Application for Approval to Commence Development for a new child care centre, the proponents should demonstrate their awareness of the number, size and location of existing or approved centres within the locality."
29 Mr Craig Scafidis, one of the principals of the applicant, gave
evidence of the research done on existing child care centres and submitted to the respondent with the application for planning approval. This identified child care centres in the neighbouring suburbs and found only one other child care centre west of Marmion Avenue to serve the suburbs of Sorrento, Hillarys, Kallaroo and Mullaloo. The applicant identified the site as suitably located for its proposed child care centre.
30 The respondent did not dispute the applicant's submission that there
was capacity for an additional child care centre in this general locality. It argued, however, that the site did not satisfy other locational criteria and that the proposed development would have an adverse impact on the locality and the neighbours.
The first locational criteria in Policy 3-1 is headed "Road Hierarchy".
This states:
"Child Care Centres are reasonably high traffic generators and therefore should not be located on Primary District Distributors where the primary function is to cater for through traffic or on Local Distributors in close proximity to District Distributors or
[2007] WASAT 283
in or adjacent to Access Roads in residential areas where amenity, safety and aesthetics must take priority. Accordingly, these Centres should be located on Local Distributor roads in such a fashion that they will not conflict with traffic control devices and will not encourage the use of nearby Access Roads for turning movements."
32 The parties agreed that Bridgewater Drive was identified as an access
road by MRWA in its functional road hierarchy plan. There was no explanation of the classifications accompanying the plan. The parties both referred to DC 1.4 when discussing road classification and the local road system.
33 Access roads are, in summary, roads that provide access only to
abutting property with amenity, safety and aesthetic aspects significant. Figure 1 of DC 1.4 shows access roads mostly as cul-de-sacs feeding on to a local distributor. A local distributor is said to carry traffic within a cell and provide the link between access roads and district distributors. Local distributors are meant to discourage through traffic so that the cell formed by the grid of the district distributors is free from extraneous traffic.
34 A description of the road layout in the vicinity of the site is given
under the heading "Site and location" above. The Tribunal finds that in the cell formed by Dampier Avenue, Mullaloo Drive, Marmion Avenue and Whitfords Avenue, the use made of roads simply does not match the label assigned to them. The Tribunal finds merit in the oral evidence at the hearing by Mr Rodney Ding, a traffic engineer called by the applicant, who said Bridgewater Drive exhibited characteristics of both an access road and a local distributor road. This was because it had a 10 metre wide pavement with a median, provided a link from purely access roads to, ultimately, the distributor roads that formed the cell, carried buses, serviced a school, shops and open space and carried about 1500 vehicles per day.
35 Mr Peter Webb, a planning consultant who appeared for, and gave
evidence on behalf of, the applicant, pointed out that nearly all the residents of the cell, once they had moved from their own local access road to Bridgewater Drive must then travel along the short Alicia Street, Cygnet Street and Cambria Street, categorised as access roads, but providing access to the distributor roads forming the cell. These short roads acted as part of the distributor network, despite being not labelled as such. In his view, local residents would not consider what classification
[2007] WASAT 283
the road was given but would observe how it was used and this would
give rise to their expectations on the impact use of it would have.36 Mr Algeri, a town planner called by the respondent, acknowledged
the comments made on behalf of the applicant, but insisted that the classifications given to the roads in the cell were appropriate because Bridgewater Drive was a loop and there was no direct link to the district distributor roads as required by DC 1.4. In his view, the classification would give rise in residents to an expectation of the functions that the road would perform. Having 1500 vehicles per day was not at all near the 12 000 vehicles per day that might be expected on a local distributor road.
37 The Tribunal considers that the classification of the road is the
starting point only. It is then necessary to consider how the road functions. In this instance most of the residential cul-de-sacs in this residential cell feed onto the loop of Bridgewater Drive. While Bridgewater Drive does not feed directly onto the other district distributor roads or local distributor roads that define this residential cell, vehicles must travel the shorter access roads, including Alicia Street, Cygnet Street and Cambria Street, to exit the cell. The width of the carriageway and the non-residential uses fronting Bridgewater Drive support the contention that, notwithstanding the classification as access road, it has some characteristics of a local distributor road. Bridgewater Drive does not have the same amenity, safety and aesthetic characteristics of a road that only provides access to residential uses. The Tribunal is of the view that the location of the proposed use on Bridgewater Drive is sufficiently consistent with the intent of Policy 3-1 for that road frontage to not be, of itself, a reason for refusing the development.
The second locational criteria in Policy 3-1 is headed "Neighbouring Uses". This states:
"Wherever possible it is preferred to locate Child Care Centres adjacent to non-residential uses such as Shopping Centres, Medical Centres/Consulting Rooms, School Site [sic], Parks and Community Purpose Buildings to minimise the impact such centres will have on the amenity of residential areas."
39 As stated above, the site has public open space to the east, a single
dwelling adjoining to the south and a further dwelling to the west. The respondent called as a witness Mrs Fleur Manners who lives at 38 Bridgewater Drive adjoining to the west. Mrs Manners objected strongly to the proposed development. She expressed concern about the
[2007] WASAT 283
noise from vehicles starting at about 7 am and about the noise from the proposed number of children playing throughout the day. She considered that overlooking the parking area from her front yard, which is about half a metre higher than the site, and diagonally from her front window looking towards the car park was objectionable. It was also of concern to her that she had a bedroom window in the eastern elevation, and that this would be affected by noise and if a higher fence were erected along that boundary the impact this would have on the outlook from that window. Mrs Manners was also concerned that the increase in traffic generated by the proposed development would affect sightlines and traffic flow and make unsafe turning into and out of her driveway. She said cars using the crossovers to the site would impact on the safety of pedestrians using the footpath to get to the school and shops.
40 Also called as a witness by the respondent was Mrs Teresa Scott,
who appeared on behalf of her mother who owns and lives in the house adjoining the southern boundary of the site. Mrs Scott said her mother was concerned about the noise from the children at the proposed child care centre. She was also concerned that people she saw as behaving undesirably in the park would be tempted to enter the child care centre site when unattended and cause problems closer to her home.
41 Mrs Scott and Mrs Manners referred to a petition and submissions
from other residents in Bridgewater Drive and nearby streets objecting to
the proposed child care centre.42 Mr Webb referred to the presence of the primary school diagonally
opposite the site. The school has approximately 300 pupils and 30 staff. It was his submission that the amenity of the locality included the noise from the unstructured play of students before, during and after school, and the traffic generated by parents dropping children off at and collecting them from the school. Mr Scafidis referred to signatures they had gathered from residents in Bridgewater Drive who did not object to the proposed centre.
43 In respect of the impact of the proposed use on the adjoining
neighbours, Mr Webb referred to the joint report of the acoustic experts called by the parties who concluded that if appropriate fencing was put in place and the development proceeded with the extension along the western boundary, then noise regulations in respect of those neighbours would be satisfied.
[2007] WASAT 283
44 Mr Webb noted that child care centres were a discretionary use in the
residential zone and was of the opinion as a planner that the discretion should be exercised in favour of the development. This was because it was located adjacent to a park in accordance with Policy 3-1, and the development would be built and managed to minimise the impact on the amenity of the residential area.
45 Mr Webb referred to the former use of No 34 as a consulting room
for a doctor and said that there was this history of non-residential activity
on the site.46 The Tribunal notes that the amenity of the two neighbouring houses
is influenced by the two single residences now on the site. It is the submission of the respondent that the proposed intensification of activity would add discernible noise and movement to the detriment of the amenity of these two houses. It is clear, however, that if the development as proposed were to operate consistent with the conditions recommended by the acoustic experts, then noise regulations would be satisfied. In respect of the house in Shelley Place adjoining the southern boundary, any additional movement on the site would not be discernible from that lot and although the activities outside might be heard, they would be below the noise regulation requirements.
47 The occupants of the house at No 38 would be more aware of
movement at the front of the site. The Tribunal accepts that No 38 would be less affected by the noise of the children playing than the house to the south because of the form of the development along the western boundary. The movement seen would be in addition to the movement generated by the primary school but considering the timing and the number of vehicles involved in that movement, the Tribunal considers that the increase spread over the hours of operation of the child care centre would be within reasonable limits.
48 Relative to concerns about out-of-hours access to the site by
strangers, the respondent requested that, should the development proceed, there be imposed a condition requiring a security management plan to be approved by the respondent. The applicant said at the hearing that a security system would be installed and that it would accept that the system include silent alarms directed to a security firm for monitoring and external security lights located so as to not adversely impact on the neighbours, but objected to the respondent being involved. The Tribunal considers that conditions could be imposed to require an appropriate alarm system.
[2007] WASAT 283
49 An additional concern raised by Mr Allerding was the proposal to
accommodate 76 children on the site. He referred to the requirement in reg 32(2) of the Child Care Regulations that there be outdoor play space of at least 9.3 square metres multiplied by the number of children attending a care session. Proposed was play space of 452 square metres, which could accommodate 48 children at this ratio, not 76. It was his submission that the site was too small.
50 Mrs Jennifer Scafidis, who was called by the applicant as the
qualified person who would operate the centre, said, but provided no evidence, that this issue had been discussed with the licensing authorities. The proposal was that children of different age groups would be outside at different times and the play space, while labelled for different age groups on the plan, would be utilised flexibly to accommodate the number of children outside. She referred to reg 32(4) that gave the chief executive officer of the licensing authority power to waive the play space requirement if there was other playing space nearby or there was suitable additional indoor play space.
51 The Tribunal is of the view that the maximum number of children
could be up to 76, or, if a number less than this is specified by the chief executive officer of the licensing authority in the licence to be issued under the Child Care Services Act 2007 (WA), then that different, lesser number, is to be the maximum number for which planning approval is granted. A condition of planning approval could be worded accordingly.
52 Child care centres are discretionary use in some seven different
zonings of DPS 2, one of which is the residential zone. While the proposal is a commercial venture it also provides a service to families. Policy 3-1, in addition to the objective of maintaining a high level of amenity in residential areas, also includes the objective of development of child care centres to maximise user convenience. The proposed development does abut two residences but it is within a residential cell, abuts a park, is close by to a primary school, on a road that serves the whole residential cell and is on a pedestrian route that leads to an underpass to a major shopping centre. The Tribunal is of the view that, having regard to the matters to be considered under cl 6.8.2 of DPS 2, the proposed development, appropriately conditioned, could satisfactorily address the amenity impact on the neighbours and the local residential area and provide a child care centre consistent with the objectives of Policy 3-1. The proposed development, subject to the issues addressed below, is therefore considered to be consistent with the orderly and proper planning.
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Whether the proposal will impact on the amenity of the area and adjoining properties by way of noise
53 The parties each called an acoustic engineer as an expert witness:
Mr Timothy Reynolds for the applicant and Mr Nick Della Gatta for the respondent. They both considered the matter relative the standards of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). These two acoustic experts put into evidence a joint statement (Exhibit 12) related to noise emissions from the proposed child care centre. The joint report stated that:
"It is agreed by both [experts] that based on the revised plans, noise emissions from the child care centre will be acceptable, provided the following is incorporated:
• staff arriving before [7 am] to use the marked car bays on 34 Bridgewater Drive; • the southern boundary fence to be 2200 millimetres high for length as shown on the Figure 01 attached in Annexure A1, with the remainder of its length to be 2000 millimetres high. The fence material having a surface mass of at least 10 kg/m2 ([for example] brick, limestone, concrete, hardifence etc). • the boundary fence to the west of the car parking area of 36 Bridgewater Drive ([that is] between child care centre and neighbour at 38 Bridgewater Drive) to be 1800 millimetres high. The fence material in this case being either brick or limestone. Provided the above are undertaken, there are no areas of disagreement."
54 The amended plan referred to was the plan before the Tribunal that
had the development extending, at a setback of 1.5 metres, adjacent to the western boundary to within 1.6 metres of the southern boundary with no openings of any type in the western elevation.
55 Figure 01 attached to the joint report showed a section of 2.2 metre
high fence on the southern boundary which, scaled from the drawing, commenced at 2.5 metres from the western boundary and extended for a distance of 17 metres. The remainder of the fence to the eastern boundary
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would be 2 metres high, as referred to in the acoustic experts'
recommended conditions.56 In cross-examination, Mr Reynolds said that the 1.8 metre high fence
on the western boundary would best be measured from the ground level on the higher, neighbour's, side of the boundary. The acoustic experts agreed that older groups of children should not be permitted to play in the designated "babies" play area adjacent to the southern boundary. Comment was also made that the gate to be erected between the southern wall of the store and the fence on the southern boundary should be of solid construction. Conditions to this effect could be imposed.
57 Mr Algeri was of the opinion that the amenity of neighbours would
still be affected by the proposed development even with the acoustic experts' conditions. This was because they would be able to hear the children playing, car doors closing, and vehicles arriving and leaving from opening time in the morning. Then there would be 140 car movements per day as opposed to about 10 per day per dwelling at present. He was of the view that amenity should not be measured in a technical manner.
58 Mr Allerding, for the respondent, was also concerned that the
proposal relied in part on the management controls of the operator of the child care centre rather than physical measures to comply with the Noise Regulations. To comply, times of play and the use of play areas would have to be maintained as described in the evidence of Mrs Scafidis. It was Mr Allerding's submission that the rigidity required would make it difficult to accommodate fluctuations in the numbers of children of different age groups over time. He said that the residences on two sides and the limited area of the site would not provide sufficient capacity for this form of commercial activity to evolve in a manner compatible and sustainable with the local amenity.
59 Mr Webb made the submission that the local amenity included the
noise made from the uncontrolled play of the some 300 children at the primary school over the road. In his examination of Mrs Manners, it was ascertained that this did not cause particular concern. It was Mr Webb's submission that the design of the building and the fencing, together with the programs in place for controlled and supervised outdoor play in restricted time periods, would protect the neighbouring dwellings from undue noise.
| 60 | Mr Webb pointed out that the parking spaces adjacent to No 38 Bridgewater Drive were for staff only and so there would only be a |
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limited number of movements into and out of that parking area. Staff arriving to open the premises would park in the two staff car bays sheltered from the houses by the building on No 34 Bridgewater Drive. Vehicles delivering and picking up children would use the car park at the front of No 34 Bridgewater Drive where the crossover was toward the eastern boundary with the park.
61 The Tribunal accepts that the noise generated by the proposed use
will be discernible. It is concluded, however, that the combination of physical measures, management practices such as the programme for outside play and the spread of car arrivals and departures would result in noise not being continuous; being at a level sufficiently within the objective measure of acceptable noise provided by the Noise Regulations and consistent, relatively, with the noise associated with the existing use of the road and school.
Whether the proposal will significantly impact on the amenity of the area and adjoining properties by way of traffic
62 Bridgewater Drive has a 10 metre wide carriageway with 4 metre
wide traffic lanes in each direction and a 2 metre wide painted medium strip. Mr Ding, in a traffic impact assessment of August 2006 said that the average weekday traffic in Bridgewater Drive was 1500 vehicles per day. The road has a design capacity of about 3000 per day.
63 The parties did not dispute the estimate of Mr Ding that the traffic
generated by the proposed use would be about 140 vehicles per day. In the opinion of Mr Ding, the additional traffic generated would be barely noticeable compared to the daily traffic flow. In his analysis, he found that there would be no excessive queuing of cars on Bridgewater Drive entering the child care centre and that vehicular flow along Bridgewater Drive would not be impeded, nor would pedestrian movement on the footpath on the south side of the road be impeded.
64 Mr Ding estimated that, at the peak period of between 8 am and 9 am
there would be an additional 33 vehicle movements as a result of the child care centre; between 3 pm and 4 pm, an increase of 21 movements; and between 5 pm and 6 pm, 12 movements. Other movements would be spread throughout the day. The primary school starts at 8.50 am and closes at 3.05 pm. Mr Ding estimated the peak periods at the school as 8.30 am to 9 am and 2.45 pm to 3.20 pm.
65 Sightlines from the site were found by Mr Ding to be approximately
85 metres to the west and 400 metres to the right which he said exceeded
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the Ausroad's standard of 40 metres minimum. To note is that Mrs Manners found that reversing from her home at No 38 was difficult if vehicles were parked on the verge. Mr Webb was of the view that the analysis by Mr Ding demonstrated that from a traffic safety, capacity and movement perspective the proposal was acceptable.
66 Mr Algeri was of the view that the nature of the traffic associated
with the development could potentially affect the amenity of the residential area. With two single dwellings there would only be a total of about 20 vehicle movements per day. When the movements are added to those associated with the nearby primary school the impact would be exacerbated. Bridgewater Drive was classed as a local access road and the expectation should be that there not be this increase in traffic movement.
67 Mr Allerding said that while Bridgewater Drive exhibited
characteristics of both an access road and a local distributor road, the 1500 vehicles per day Bridgewater Drive carried was a far cry from the 12 000 vehicles per day a local distributor road might carry. The additional 140 vehicles per day would be clearly discernible and therefore erode local amenity. The traffic was a significant relevant increase for the property.
68 The Tribunal notes that Mr Ding estimated a 20% increase in traffic
movements at the peak period of 8 am to 9 am. The actual number of movements, however, at No 33, is not considered to be such as to such that would result in congestion. Mr Ding estimated there might be, at most, a car queuing for up to 8 seconds to make a right hand turn into the site at the peak time, but it is noted that the carriageway is of sufficient width to enable other vehicles to pass by. The Tribunal is of the view that the traffic generated by the proposal, while discernible because of turns into and out of the site being made, would not have such an impact on the level of service that there would be an adverse impact on the amenity of the locality.
Whether the proposal will significantly impact on the amenity of the area and adjoining properties by way of car parking
69 The proposed development would have two discrete parking areas.
In front of No 36, with a separate crossover, would be five staff parking bays and a disabled parking bay. In front of No 34, with its own crossover, would be a parking area of ten visitor parking bays and two additional staff parking bays. There is no dispute that the parking requirements of Policy 3-1 are satisfied.
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70 Mrs Scafidis, in her evidence, said normal practice was for parents to
arrive, go inside with their child, sign the book, say goodbye and then leave. In her estimation the average time would be three to five minutes. Mr Ding, in his evidence, said traffic engineers used an average stay time of about seven minutes. On Mr Ding's estimate the ten visitor bays could accommodate up to about eight vehicles each per hour. It was his estimation that about 17 vehicles were expected to enter and leave the parking area in the peak period of between 8 am and 9 am each day. There was no dispute that the car park has sufficient bays to cope with peak period use in the manner described.
71 Mr Allerding raised as a concern occasions when parents would
linger for some reason or those occasions were there was a special event where parents, relatives and friends were invited to observe or participate in activities with the children. On such occasions, the visitors would be tempted to park on the verge and the median strip or on the other side of the road. It would also not then be possible for cars to leave the parking area in the front of No 34 in forward gear. This, it was said, would affect traffic safety, cause congestion and have an adverse impact on the local amenity.
72 Mrs Scafidis said sessions with parents to discuss a child were
usually by appointment and special occasion days were rare because of the spread of ages. Staff opening the centre in the morning would use the two staff bays on No 34 adjacent to the main entry and separated from the neighbours by the building. The vehicles of other staff would remain stationary in the bays on No 36 for most of the day. Mr Webb's opinion was that there would therefore be little impact on the neighbours.
73 For special event days, if held, the Tribunal considers that any
congestion would be minimised if these events did not coincide with the peak times for students arriving at and departing from the primary school, and a condition could be imposed to ensure this.
74 The parking provided meets the standard set out in Policy 3-1. From
the evidence, the Tribunal has accepted that it would be a rare occasion, if at all, that parking associated with the proposed use would significantly impact on the amenity of the locality.
Conditions of approval
75 As ordered by the Tribunal, the respondent provided a schedule of
conditions, without prejudice to its position, it would want imposed
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should the Tribunal be minded to grant conditional approval for the
proposed development.76 The applicant took issue with several of the draft conditions. One
was the approval of a security management plan by the respondent. As indicated in the discussion above, the Tribunal considers that no more than the normal security measures need to be taken for the site, but that alarms should be silent and monitored and external lighting directed so to not impact on the neighbours.
77 There was disagreement between the parties about the extent,
materials and height of the fence to be erected on the western boundary. Consistent with the recommendation of the acoustic experts, the Tribunal considers that the western boundary fence, adjacent to the staff car park, should be 1.8 metre high masonry from the front boundary to the front of the building. From that point, between the buildings to the rear boundary the fence is to be 1.8 metres high of a noise attenuation material required by the acoustic experts for security and privacy. The height of the fence on the western boundary is to be measured from the existing ground level of adjoining No 38 Bridgewater Drive, to provide an adequate screen and sound barrier.
78 The respondent recommended a condition setting the maximum
number of children at 76 as applied for. The Tribunal is of the view that the maximum number should be up to 76 or, if a number less than this is specified in the licence to be issued under the Child Care Services Act 2007, then that lesser number is to be the maximum number for which planning approval is granted. The condition could be worded accordingly.
79 The layout of the child care centre playground is to be as set out in
Exhibit 16 except that the "schoolies" play area is to be moved 4 metres from the southern boundary. Consistent with the acoustic experts' comments, the play area marked "babies" adjacent to the southern boundary must be used by no other age groups.
80 The respondent requested a condition requiring a 2.2 metre high
masonry wall to be built along the southern boundary. The applicant referred to Figure 1 of the acoustic experts' joint statement which showed a 2.2 metre high fence along only part of the boundary. Scaling from the acoustic experts' Figure 1, the Tribunal finds that along the southern boundary, commencing at the western boundary of the site, the boundary wall should be 2 metres high for the first 2.5 metres, 2.2 metres high for
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the next 17 metres and from that point to the eastern boundary, the wall
again to be 2 metres high.81 The applicant also referred to the acoustic experts' requirement that
the fence be a material with a surface mass of 10 kg/m2, which included fibrocement. The Tribunal is concerned about the aesthetics and robustness of a fibrocement fence of the length and the height required. The Tribunal supports the respondent's recommendation it be masonry and that it be brick, limestone or concrete, as recommended by the acoustic experts, finished to an appropriate standard on the neighbour's side. The height of the fence along the southern boundary is to be measured from the finished ground level on the child care centre side of the fence.
82 In the recommended condition on landscaping, the Tribunal agrees
with the applicant that a survey of existing trees need only include those taller than 3 metres, but disagrees that the verge be excluded from landscaping requirements. Policy 3-1 requires that verges be appropriately landscaped.
The respondent quite properly recommended a condition that Lot 53 and Lot 54 be amalgamated. The Tribunal considers acceptable the applicant's suggestion that this be completed prior to the issue of a certificate of occupancy, rather than before the issue of a building licence because of the time usually required for the amalgamation process.
84 Mrs Scafidis, in her evidence, outlined how she intended to manage
the child care centre, and Mr Webb emphasised how this related to the impact the development would have on the neighbours. The Tribunal is of the view that certain of the practices outlined be included in the planning approval. These include no play outside by children before 8 am and, as stated by Mrs Scafidis, to comply with "sun smart" practices, no play outside between the hours of 10 am and 3 pm. These hours would bring certainty to when outside play is most likely to occur. Any metal play equipment must be treated, such as the filling of pipes, to soften noise.
85 Mrs Scafidis said she would be providing the Chief Executive
Officer of the licensing authority with a program of activities as required by reg 84 of the Child Care Regulations. The Tribunal considers a current copy of this program should be provided to the respondent so that it is assisted in monitoring management practices relevant to the planning approval.
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Conclusion
86 Proposed is the redevelopment of two residences into a child care
centre. The respondent refused the application because of concerns about the development having an adverse impact on the amenity of the adjoining neighbours and the residential locality. It was supported in this decision by submissions from the two adjoining neighbours.
87 The respondent was also concerned that the location of the child care
centre was in conflict with the location requirements of its Policy 3-1 on
child care centres.88 The Tribunal has noted that Policy 3-1, in addition to the objective of
maintaining a high level of amenity in residential areas, also includes the objective of development of child care centres to maximise user convenience. The site is within a residential cell, abuts a park, close by to a primary school, on a road that serves the whole residential cell and on a pedestrian route that leads to shops.
89 While the site abuts two residences and there are other residences
nearby, the Tribunal is of the view that potential noise, traffic and parking impacts on the amenity of neighbours and the local residential area can be adequately addressed and the locational criteria of Policy 3-1 satisfied. The Tribunal has concluded that, having regard to the matters to be considered under cl 6.8.2 of DPS 2 and the objectives of Policy 3-1, the proposed development, subject to appropriate conditions, would be consistent with the orderly and proper planning of the locality and can be allowed.
| Orders |
The Tribunal makes the following orders:
1. The application for review is allowed. 2. The decision of the respondent of 12 December 2006 to refuse the development of a child care centre at Lot 53 and Lot 54 (No 34 and No 36) Bridgewater Drive, Kallaroo is set aside and approval is granted subject to the following conditions: (i) The development of the child care centre is to be as shown on the plan of development (Exhibit 16), dated 31 July 2007, by the Tribunal (copy attached). The building, including the additions
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extending at a setback of 1.5 metres adjacent to the western boundary to within 1.6 metres of the southern boundary is to have no openings of any type in the western elevation.
(ii) A maximum number of 76 children and eight staff are permitted at the proposed child care centre, or, if a lesser number of children are specified as allowed in the licence issued pursuant to the Child Care Services Act 2007 (WA) then planning approval is for that lesser number.
(iii) The opening hours of the child care centre are restricted to 7 am to 6 pm, Monday to Friday. The children shall arrive no earlier than 7.15 am.
(iv) A sign to be erected to the satisfaction of the Manager Infrastructure Management Services, and at the applicant's cost, to advise parents that they cannot park on the existing verge.
(v) The parking bays, driveway and points of ingress and egress are to be designed in accordance with the Australian Standard of Street Car Parking (AS 2890.01). Such areas are to be constructed, drained, marked and thereafter maintained to the satisfaction of the Manager, Infrastructure Management Services prior to the development first being occupied. These works are to be done as part of the building program.
(vi) The layout of the child care centre play areas is to be in accordance with the attached approved plan, with the exception of the "schoolies" play area in the south-eastern corner of the site which is to be relocated to a point at least 4 metres away from the southern boundary of the site.
(vii) The "babies" play area adjacent to the southern boundary is not to be used by children of any other age group.
(viii) A fence is to be erected at the applicant's cost on the western boundary to comprise a 1.8 metre
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high brick or limestone wall from the front boundary to the beginning of the child care centre building, adjacent to the staff car park, and a 1.8 metre high fence along the remainder of the western boundary of a material having a surface mass of at least 10 kg/m2 (of either brick,
limestone, concrete, or hardifence). The masonry section of the fence along the western boundary is to be finished on the western neighbour's side to the satisfaction of the Manager, Approvals, Planning and Environmental Services. The height of the fence along the western boundary is to be measured from the existing ground level of No 38 Bridgewater Drive.
(ix) A fence is to be erected along the southern boundary at the applicant's cost to comprise for the first 2.5 metres from the western boundary a wall not less than 2 metres high, for the next 17 metres a wall not less than 2.2 metres high and from that point to the eastern boundary a wall not less than 2 metres high. The fence along the southern boundary is to be of masonry with a surface mass of at least 10 kg/m2 (the masonry to
be brick, limestone or concrete). The fence along the southern boundary is to be finished on the southern neighbour's side to the satisfaction of the Manager, Approvals, Planning and Environmental Services. The height of the wall is to be measured from the finished ground level on the child care centre side of the boundary.
(x) The gate separating the "babies" play area from the setback between the laundry and the southern boundary is to be of solid construction.
(xi) No children are to play outside before 8 am or outside between the hours of 10 am and 3 pm. Any metal play equipment is to be treated, such as the filling of metal pipes, to reduce noise.
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(xii) The bin store area is to be provided with concrete floor grades to an industrial waste connected to sewer.
(xiii) The lodging of detailed landscape plans, to the satisfaction of the Manager, Approvals, Planning and Environmental Services, of the development site and adjoining road verge for approval with the building licence application. For the purpose of this condition, a survey of existing trees of a height of 3 metres or higher shall be carried out, all mature tuarts shall be inspected and assessed by a registered arboricultural consultant, a safety/maintenance report shall be prepared for the purpose of this development by this consultant and a detailed landscape plan shall be drawn to a scale of 1:200 and show: the location and type of existing vegetation to be retained or removed, the location of proposed trees and shrubs, any new lawns to be established and areas to be reticulated or irrigated.
(xiv) Landscaping and reticulation is to be established in accordance with the approved plans prior to the development first being occupied and thereafter maintained to the satisfaction of the Manager, Approvals, Planning and Environmental Services.
(xv) Lot 53 and Lot 54 Bridgewater Drive being amalgamated and a new certificate of title being issued for the amalgamated lot, prior to the issue of a certificate of classification.
(xvi) Eight parking bays shall be marked and permanently set aside for the exclusive use of staff.
(xvii) Staff arriving before 7 am to park only in the staff car bays on 34 Bridgewater Drive.
(xviii) Special event days, if any, in which parents, relatives and friends are invited to interact with or to watch the children are not to be held between
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8.30 am and 9 am or between 2.30 pm and
3.30 pm.(xix) The applicant is to provide the respondent with a current copy of the program of activities required by reg 83 of the Children and Community Services (Child Care) Regulations 2006 (WA) so that the respondent can be assisted in monitoring activities relevant to the planning approval.
(xx) A security system is to be installed to include only silent alarms monitored by a security firm and external lighting directed to have no direct impact on the neighbours with these features to be to the satisfaction of the Manager, Approvals, Planning and Environmental Services.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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Exhibit 16
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0
7