BURNS and CITY OF FREMANTLE
[2006] WASAT 268
•7 SEPTEMBER 2006
BURNS and CITY OF FREMANTLE [2006] WASAT 268
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 268 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:182/2006 | 17 AUGUST 2006 | |
| Coram: | MR J ADDERLEY (SESSIONAL MEMBER) | 7/09/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for review upheld | ||
| B | |||
| PDF Version |
| Parties: | JILLE BURNS CITY OF FREMANTLE |
Catchwords: | Change of use Short term accommodation Deemed refusal Residential amenity Mixed use Management policy |
Legislation: | City of Fremantle Town Planning Scheme No. 3, cl 16, cl 77 Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia 2002 |
Case References: | Nil Nil |
Orders | 1. The application for review of the City of Fremantle's decision to defer determination of the proposal for change of use of the premises at Unit 3, 15 Essex Street, Fremantle from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is upheld.,2. The application for change of use of the premises at Unit 3, 15 Essex Street from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is approved subject to the following condition:,(i) The applicant shall lodge a management policy with the respondent demonstrating measures to be undertaken in order to effectively manage short term tenancies in a manner consistent with the reasonably expected amenity of the Port Mill complex. In this regard the management policy should include measures to:,• Establish a responsible management entity.,• Provide for strict limitation of resident numbers.,• Set appropriate letting periods for the premises.,• Establish security protocols.,• Ensure car parking protocols are observed.,• Establish a day to day contact and complaints resolution arrangement.,3. This approval is valid for a period of 12 months from the date of this decision. The approval shall be reviewed by the respondent after 12 months having regard to the conduct of short term tenancies at Unit 3, compliance with the management policy lodged with the respondent and conformity with any town planning policies then relevant to the management of short term residential accommodation in the City of Fremantle. Subject to continued satisfactory conduct of the premises in accordance with the lodged management policy, this approval may be further approved with or without conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BURNS and CITY OF FREMANTLE [2006] WASAT 268 MEMBER : MR J ADDERLEY (SESSIONAL MEMBER) HEARD : 17 AUGUST 2006 DELIVERED : 7 SEPTEMBER 2006 FILE NO/S : DR 182 of 2006 BETWEEN : JILLE BURNS
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Change of use - Short term accommodation - Deemed refusal - Residential amenity - Mixed use - Management policy
Legislation:
City of Fremantle Town Planning Scheme No. 3, cl 16, cl 77
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia 2002
(Page 2)
Result:
Application for review upheld
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr S Bain (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 An application for a change of use of a residential apartment, in the Port Mill complex in Essex Street, Fremantle, in order to allow short term residential accommodation, was deferred by the respondent pending preparation of a town planning policy to regulate short term accommodation in the City.
2 In the absence of a decision by the respondent within 60 days, the applicant sought a review of a purported deemed refusal of the proposal.
3 The Tribunal heard evidence from the respondent as to the incompatibility of short term accommodation with the residential amenity of the Port Mill complex.
4 The Tribunal heard evidence from the applicant as to the mix of commercial, residential, entertainment and tourist uses of the Fremantle CBD and the substantial incidence of short stay accommodation in Fremantle. The applicant further identified that the proposed use had in fact operated at the premises for some years without cause for specific complaint and was managed to a high standard in accordance with a defined management policy. The unit is advantageously located near the front of the Port Mill complex with reasonable prospect of avoiding nuisance with other residents because of ease of access from Essex Street.
5 The Tribunal acknowledged the importance of protecting residential amenity and concluded that in terms of advantageous location and effective management practice demonstrated in relation to the unit, and having regard to the respondent's Town Planning Scheme and associated town planning policy that encourages mixed use and specifically tourist accommodation in the west end of the City, the application for change of use to allow short stay accommodation should be conditionally approved for a period of 12 months, renewable subject to satisfactory compliance with practical tenancy management standards.
Introduction
6 This is an application for review of the decision of the respondent not to grant planning consent for the use of Unit 3, 15 Essex Street, Fremantle for the purposes of short term residential accommodation.
7 Application for the proposal was lodged with the respondent on 8 February 2006.
(Page 4)
8 The proposal was considered by the respondent on 26 April 2006, whereupon it was resolved that the application should be deferred pending preparation by the respondent of a policy for assessment of short term residential accommodation.
9 Following the elapse of 60 days from the date of the original application without further notification by the respondent as to determination of the matter, the applicant presumed a deemed refusal of the proposal by the respondent and lodged an application for review with the State Administrative Tribunal which was registered on 6 June 2006.
The Proposal
10 The application to use Unit 3, 15 Essex Street for short term accommodation needs to be understood in physical and historical context.
11 Unit 3, 15 Essex Street is a residential apartment within a two and three storey complex of strata titled residential and commercial tenancies situated in the central business area of Fremantle. The complex is also known as the Port Mill in recognition of its previous function as a flour mill. There are fifteen units in the complex ranged around a gated courtyard accessed from Essex Street. Several of the units located towards the Essex Street frontage are commercial tenancies. A "bed and breakfast" business operates from Unit 13 (also described as Port Mill Bed and Breakfast, Unit 13, 17 Essex Street) which is situated across the courtyard opposite Unit 3. An undercroft car park is accessed via a ramp from Essex Street with provision for one car parking bay for each tenancy.
12 The character of the complex is partly derived from its location in the busy commercial and entertainment district of central Fremantle. The buildings also derive much of their character and architectural heritage qualities from the original 150 year old limestone flour mill structure which was converted to the present day residential and commercial use of the complex in 1993.
13 The location of Unit 3, 15 Essex Street is zoned Central Business under the City of Fremantle Town Planning Scheme No 3 (TPS 3 or Scheme).
14 The expression "short term (or short stay) accommodation" refers to the letting of premises to residential tenants for periods of short duration. In this case, the applicant described that typical short term tenancies at Unit 3 are between three nights minimum stay and three months
(Page 5)
- maximum stay. The number of tenants that can be accommodated is commensurate to the beds provided. There are two double beds and one single, thus providing for a total of five persons.
15 The applicant has owned Unit 3 since 1993 and resided there until about 2000. For the last six years the applicant has apparently rented Unit 3 to other parties for long term and short term accommodation from time to time.
16 The respondent wrote to the applicant on 6 February 2006 advising that planning approval is required for "short term accommodation" under TPS 3.
17 Under TPS 3, the respondent contends that "short term accommodation" falls within the scheme definition of the use class "Residential Other" which is a use class that is not permitted in the Central Business zone unless consent is granted by the Council.
18 The application to allow short term accommodation at Unit 3 is therefore a change of use from "Residential" to "Residential Other" as required by TPS 3.
Town Planning Scheme and policy provisions
19 As described above, the respondent's TPS 3 pertains to the premises in question.
20 Again, as described above, "short term accommodation" falls within the use class "Residential Other" under TPS 3, which is defined as:
"The occupancy of a residential building or of a welfare hostel or home excluding a Residence - Private."
21 The term 'residential building' needs to be clarified in relation to this definition. It is further relevantly defined under the Residential Design CodesWA (2002) to mean:
"A building or portion of a building...used for the purpose of human habitation...temporarily by two or more persons..."
22 "Residential Other" is a use class not permitted in the Central Business zone unless consent is granted by the Council.
23 The respondent has advised that cl 16 of TPS 3 requires that the responsible authority for determination of planning applications shall have
(Page 6)
- regard to the orderly and proper planning of the locality, the preservation of amenities of the locality and to matters listed under cl 77 of the Scheme.
24 Clause 77 of TPS 3 lists a range of matters which should be taken into account by the responsible authority in determining planning applications. The following matters are most pertinent to this particular application for a change of use from Residential to Residential Other in order to allow short term accommodation:
(a) the intensity and nature of the proposed use, including its environmental impact by way of emissions, illuminations and hours of operation;
(f) the plot ratio, site coverage, setbacks, height, landscaped area and parking accommodation;
(q) the position of signs;
(t) any other matters.
25 The respondent has adopted a policy titled the "Fremantle West End Conservation Area Policy" which provides at S 4.2.2(b) that:
"The Council will encourage the development of the West End Conservation Area as an area of mixed uses (people uses generally) where office, service uses, residential and retailing activities are integrated with entertainment and tourist accommodation facilities."
The decision of the respondent
26 Following receipt of the application for the change of use of Unit 3, 15 Essex Street from "Residential" to "Residential Other", the respondent solicited public comment resulting in six submissions from proprietors of other units within the Port Mill complex.
27 The submissions, as summarised in a report to the respondent's planning committee, amounted to "significant objection to the application" citing concerns as to "security, noise and the behaviour of short term tenants".
28 Following consideration of the planning committee report, the respondent, on 26 April 2006, resolved to defer the application pending the development of a Policy for Short Term Accommodation.
(Page 7)
The respondent's argument
29 The respondent's argument was presented in the text of the witness statement of Mr S Bain, a qualified and experienced town planner.
30 Mr Bain argued that the applicant had not addressed relevant matters that should be taken into consideration in determining the proposal as identified at cl 77 of TPS 3.
31 Specifically, Mr Bain argued that the proposed use manifests a different nature to a residence in that the occupants are short term and most likely on holidays. This circumstance would tend to a likelihood of occupants arriving and leaving at different times, having parties or visitors and generally giving less consideration to the needs of residents in other units. The impacts of noise, anti-social behaviour and security breaches will be unable to be controlled in a timely and effective manner.
32 Mr Bain advised that only one car parking bay was provided to service the needs of the unit and that consequently a deficiency may occur in the event of visitors attending the premises. Upon examination, Mr Bain accepted that street parking was available to service visitor parking needs and that as often as not short term tenants may not rely on car access at all.
33 The proposed use is likely to require signage. Mr Bain contended that signage will impact on the pleasant entry to the complex.
34 Mr Bain noted that the submissions objecting to the application identified concerns with security, noise, inappropriate behaviour and car parking.
35 Mr Bain concluded that the proposed use would adversely affect the expected amenity of the complex which is otherwise configured to reflect commercial activities oriented to Essex Street whilst residential use and quieter amenity expectations are located behind and within the complex.
36 Mr Bain observed that land use conflicts associated with short stay accommodation are normally dealt with by the physical separation of land uses or such uses being housed within purpose built facilities.
The applicant's argument
37 The applicant, Ms J Burns, tendered her witness statement evidencing the argument in support of the proposal.
(Page 8)
38 Ms Burns described that the Port Mill complex is in the centre of Fremantle CBD activity in the vicinity of cinemas, a pool hall, late night restaurants and a night club at the end of the street.
39 The complex is composed of mixed uses including a restaurant, a cafe, a bed and breakfast and residential apartments. Two of the internal tenancies were originally approved as residential/commercial including Unit 3.
40 Ms Burns contrasted the nature of the Port Mill complex and its surrounds with the differing expectations of a suburban residential cul-de-sac.
41 Ms Burns acknowledged the importance of respecting the amenity of the Port Mill complex and identified that the continued compatible use of Unit 3 depended on effective management of short term rentals. In this regard, Ms Burns referred to her management policy for the conduct of rentals at Unit 3, which sets out criteria for minimum stay, maximum guest numbers, parking allocation and security arrangements, a requirement for personal management introduction at the commencement of a rental and provision of information on emergency management contact arrangements. Importantly, the management of Unit 3 is conducted by resident proprietors of the Port Mill Bed and Breakfast thus affording immediate and effective on site attention to any problems as they arise.
42 Ms Burns emphasised the role of the Strata Council of Management in overseeing the conduct of premises in the complex and resolving complaints.
43 The objections to the application received by the respondent were related to nuisance generated at another property within the complex. According to Ms Burns, no complaints have been made to the applicant, the manager, or the Strata Council of Management in relation to the conduct of short stay accommodation at Unit 3.
44 Ms Burns stated that the conduct of short stay accommodation at Unit 3 had occurred since 2000 without concern of the respondent. There are many residential short stay accommodation facilities located in Fremantle as evidenced by the respondent's website and the Fremantle Visitor Centre website. Many operate without planning permission. Given the substantial presence of short stay accommodation in Fremantle and as the respondent advised that an application for planning consent was required in the case of Unit 3, it would be reasonable to expect that the
(Page 9)
- respondent would be in a position to determine the application in a timely manner. As of the date of the Tribunal hearing, the respondent has apparently not prepared the policy referred to in April and no decision has been made in respect of the application for short term accommodation use of Unit 3.
Analysis
45 The respondent's argument is centred on the proposition that the change of use from "Residential" to "Residential Other" in order to allow short term accommodation tenancies at Unit 3 will lead to a deterioration of residential amenity in the Port Mill complex.
46 Reasons offered by the respondent leading to a conclusion of reduced amenity include argument that the behaviour of short term tenants is not compatible with the interests of permanent residential tenants occupying the remainder of the Port Mill complex. Objections to the application signify a level of concern by other residents of the complex as to potential noise nuisance and the possible compromise of security.
47 The applicant responded to these issues with two arguments. Firstly, that the Port Mill complex is a mixed use development integrated into the busy entertainment area of the Fremantle CBD where there is an expectation of amenity rather different from a suburban residential street. Secondly, because careful tenancy management arrangements have been put in place by the applicant, it has allowed the conduct of short term rentals of Unit 3 without cause of nuisance or complaint during several years of operation of short stay accommodation.
48 The Tribunal took note of the amenity arguments and accepts that they are central to the consideration of this application for change of use. In this regard, the Tribunal accepts the argument of the respondent that there may be circumstances that arise where short term residents behave in a manner inconsistent with the interests of permanent residents. However, the Tribunal also acknowledges that a practical and effective management arrangement can overcome or at least minimise the incidence of possible anti-social behaviour associated with short stay residents. In this regard, the operation of the bed and breakfast business at Unit 13 appears to signify a tolerable form of short stay residential in the complex. The apparent tolerance over several years of short stay accommodation at Unit 3 without cause for complaint also seems to indicate that effective management arrangements are important.
(Page 10)
49 The location of Unit 3 towards the front of the Port Mill complex, its association with commercial activity in the Essex Street environs and the convenience of access and egress for guests with reduced occasion for nuisance to other residential premises further to the rear, establishes a degree of advantage for the use of the premises for short term accommodation.
50 The Tribunal was made aware of the substantial incidence of short term residential accommodation advertised in the City of Fremantle, some of which allegedly operate without planning consent. Further, it was evidenced that the respondent's current policy for the West End of Fremantle encourages mixed uses including residential, entertainment and tourist accommodation. It is also evident that the respondent seeks to more comprehensively administer the conduct of short term residential accommodation by the introduction of appropriate policy measures.
51 The Tribunal deduces from these circumstances that there is a reasonably held presumption that short term residential accommodation continues to be anticipated and encouraged in the locality.
52 The respondent has not, however, set in place a policy to administer its discretion to approve or refuse the operation of short term residential accommodation, notwithstanding the presence and continued operation of such facilities in the City. In the absence of such a policy against which to measure the determination of applications for change of use, it appears to the Tribunal that if an application is required by the respondent to be considered then it ought, as a matter of fairness, be determined on its merits notwithstanding the absence of a policy.
53 The Tribunal acknowledges the desirability of a policy based approach and encourages the respondent to prepare an appropriate instrument as soon as practicable. In this regard, the Tribunal contemplates the possibility of conditionally consenting to the application for a limited period of time in order to allow further consideration of this matter at a future date in order that a renewed consent could be brought into consistency with the administration of the respondent's policy.
54 The Tribunal reiterates its acknowledgement that any change of use to allow short term accommodation at Unit 3 must have regard to minimising any impact on the reasonable amenity expectations of residents of the Port Mill complex. In this regard, the ongoing adherence to an effective tenancy management policy is considered critical. Additionally, a periodical process of renewing consent will allow the
(Page 11)
- respondent the opportunity to review the ongoing effectiveness of the tenancy management policy.
55 On balance, the Tribunal is satisfied that subject to appropriate conditions, the proposal is capable of being managed compatibly with the amenity expectations of the residents and is otherwise a use of premises consistent with zoning under the City's TPS 3 and consistent with the City's West End Conservation Area Policy.
Conclusion
56 For the reasons described in the preceding sections of this decision, the Tribunal concludes that the application for review of the respondent's decision to defer determination of the proposal for a change of use of premises at Unit 3, 15 Essex Street Fremantle from "Residential" to "Residential Other" in order to allow short term residential accommodation is upheld and that conditional planning consent to the change of use should be granted.
Orders
57 The application for review of the City of Fremantle's decision to defer determination of the proposal for change of use of the premises at Unit 3, 15 Essex Street, Fremantle from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is upheld.
58 The application for change of use of the premises at Unit 3, 15 Essex Street from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is approved subject to the following condition:
(i) The applicant shall lodge a management policy with the respondent demonstrating measures to be undertaken in order to effectively manage short term tenancies in a manner consistent with the reasonably expected amenity of the Port Mill complex. In this regard the management policy should include measures to:
• Establish a responsible management entity.
• Provide for strict limitation of resident numbers.
- • Set appropriate letting periods for the premises.
• Establish security protocols.
• Ensure car parking protocols are observed.
• Establish a day to day contact and complaints resolution arrangement.
59 This approval is valid for a period of 12 months from the date of this decision. The approval shall be reviewed by the respondent after 12 months having regard to the conduct of short term tenancies at Unit 3, compliance with the management policy lodged with the respondent and conformity with any town planning policies then relevant to the management of short term residential accommodation in the City of Fremantle. Subject to continued satisfactory conduct of the premises in accordance with the lodged management policy, this approval may be further approved with or without conditions.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SESSIONAL MEMBER
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