Charkey*Papp and Town of Cottesloe
[2007] WASAT 319
•19 DECEMBER 2007
CHARKEYPAPP and TOWN OF COTTESLOE [2007] WASAT 319
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 319 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:83/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 18/12/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and decision under review affirmed | ||
| B | |||
| PDF Version |
| Parties: | JULIA CHARKEYPAPP TOWN OF COTTESLOE |
Catchwords: | Town planning Development application Consulting rooms Psychiatric practice Residential area Land reserved for primary regional road under Metropolitan Region Scheme Highway Assessed by Town on delegated authority as if underlying Residential Zone applied Discretionary use of consulting rooms in Residential Zone after advertising Principles applicable in the exercise of that discretion Neighbours' objections including concern over nature of clientele Weight to be given to such concerns Neighbouring properties had commercial uses Subject land refused planning permission in 1995 for chiropractor's rooms Whether overconcentration of commercial uses in this residential area if proposal approved Property uses on either side of the highway considered Scattered non-residential uses demonstrated Comparative interstate and local cases considered Tribunal refused to set aside Town's decision Reasons included the residential nature of precinct, avoiding overconcentration of commercial uses in the immediate locality, upholding consistency of decision-making and the promotion of orderly and proper planning for the Town Application for review dismissed and decision under review affirmed |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA) Town of Cottesloe Town Planning Scheme No 2, cl 4.3.1(a) Draft Town of Cottesloe Town Planning Scheme No 3 |
Case References: | Cistulli v Lane Cove Council [2004] NSWLEC 707 Daehli & ors v Bayside City Council [2001] VCAT 2141 Lang v Woollahra Municipal Council [2007] NSWLEC 679 Mandurah Doctors and City of Mandurah [2007] WASAT 57 Patrick & Anor and Shire of Serpentine-Jarrahdale [2003] WATPAT 28 Von Witt v Hobart City Council (1995) 86 LGERA 134 Wogmed Pty Ltd v Corporation of the Town of Gawler & Anor [2004] SAERDC 66 |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHARKEYPAPP and TOWN OF COTTESLOE [2007] WASAT 319 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 DECEMBER 2007 FILE NO/S : DR 83 of 2007 BETWEEN : JULIA CHARKEYPAPP
- Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning - Development application - Consulting rooms - Psychiatric practice - Residential area - Land reserved for primary regional road under Metropolitan Region Scheme - Highway - Assessed by Town on delegated authority as if underlying Residential Zone applied - Discretionary use of consulting rooms in Residential Zone after advertising - Principles applicable in the exercise of that discretion - Neighbours' objections including concern over nature of clientele - Weight to be given to such concerns - Neighbouring properties had commercial uses - Subject land refused planning permission in 1995 for chiropractor's rooms - Whether overconcentration of commercial uses in this residential area if proposal approved - Property uses on either side of the highway considered - Scattered non-residential uses demonstrated -
(Page 2)
Comparative interstate and local cases considered - Tribunal refused to set aside Town's decision - Reasons included the residential nature of precinct, avoiding overconcentration of commercial uses in the immediate locality, upholding consistency of decision-making and the promotion of orderly and proper planning for the Town - Application for review dismissed and decision under review affirmed
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Town of Cottesloe Town Planning Scheme No 2, cl 4.3.1(a)
Draft Town of Cottesloe Town Planning Scheme No 3
Result:
Application for review dismissed and decision under review affirmed
Category: B
Representation:
Counsel:
Applicant : Mr R Brooks (Acting as Agent)
Respondent : Mr A Jackson (Acting as Agent)
Solicitors:
Applicant : Ron Brooks Planning (Town Planners)
Respondent : Town of Cottesloe
Case(s) referred to in decision(s):
Cistulli v Lane Cove Council [2004] NSWLEC 707
Daehli & ors v Bayside City Council [2001] VCAT 2141
Lang v Woollahra Municipal Council [2007] NSWLEC 679
Mandurah Doctors and City of Mandurah [2007] WASAT 57
Patrick & Anor and Shire of Serpentine-Jarrahdale [2003] WATPAT 28
Von Witt v Hobart City Council (1995) 86 LGERA 134
(Page 3)
Wogmed Pty Ltd v Corporation of the Town of Gawler & Anor [2004] SAERDC 66
(Page 4)
Summary of Tribunal's decision
1 This review dealt with the refusal by the Town of Cottesloe to give its planning approval for a change in the use of certain land on Stirling Highway. The land use was proposed to be changed to that of psychiatric consulting rooms.
2 The Town of Cottesloe had refused approval for various reasons including reference to the concerns that had been raised about the impact upon residential amenity caused by the practice, in part, arising out of neighbouring residents' concerns about the nature of the clientele attending the practice. The Town of Cottesloe conceded, correctly, that while such concerns should be acknowledged, they might not amount to matters relevant to the exercise of a discretion having regard to planning principles.
3 However, the Town of Cottesloe strongly argued that the residential nature of the precinct would be compromised if a further commercial use were to be approved. Already in close proximity to the subject land there are two other existing non-residential land uses (a dentist's practice and an architect's office). Importantly, in 1995, the Town of Cottesloe had refused planning permission for the same land to be used for a chiropractor's consulting rooms.
4 It was common ground between the parties that the decision whether to approve the change of use could be assessed as if this were a proposed use in a "Residential Zone". Such a use would not be prohibited, but it would require special approval from the Town of Cottesloe or, on review, by the Tribunal.
5 The Tribunal reviewed both local and interstate cases which dealt with the proper approach to take when professional consulting rooms were proposed for residential areas. An analysis of land pattern uses in the vicinity on Stirling Highway was also considered.
6 In the result, the Tribunal declined to set aside the Town of Cottesloe's refusal finding that the Town of Cottesloe's position upheld the underlying residential nature of the area, avoided non-residential over-concentration in the immediate precinct, was consistent with the Town of Cottesloe's previous decisions, and promoted orderly and proper planning land use in the Town of Cottesloe.
(Page 5)
7 The application for review was therefore dismissed.
Introduction
8 This review concerns the refusal of the Town of Cottesloe (Town) to give its planning approval in respect of the establishment of certain psychiatric consulting rooms proposed to be located in an existing - now vacant - residence on Stirling Highway, close to the intersection with Eric Street in Cottesloe.
9 The proposal relates to Lot 6 (No 463) Stirling Highway, Cottesloe (Lot 6 or subject land). Lot 9 (No 121 Eric Street), which sits on the corner of Eric Street and Stirling Highway (three lots to the North of the subject land), is a dentist's practice with an associated residential use; next door to that practice (Lot 100) is an architect's business with no residential use; next door to that - going further South - is a residence (Lot 101) and then next door to that is the subject land, all with street frontage to Stirling Highway. The other two remaining lots (Lots 5 and 4) leading down from the subject land to Boreham Street (which intersects with the Highway) are both residential properties.
10 Lot 6 is 754 square metres in size and, according to the applicant, has the potential for the establishment of two grouped dwellings on it. However, if the development under review were approved, the existing inter-war period "Californian Bungalow" dwelling-house upon the land would be retained. Vehicular access to the subject land is by way of a right of way (ROW) off Eric Street.
11 When the Town advertised the matter, a number of neighbouring residents objected to the proposal, in part, on the basis of the dangers or concerns regarding the attendance in the area of patients with mental health problems. As the Town properly conceded, such concerns are not generally matters relevant to planning decisions. In any event, it is clear that the practice proposed by the applicant, Dr Charkey-Papp, is modest in scale with a predominantly female clientele attending the premises with medical problems equivalent to an ordinary general practitioner's surgery.
12 The main reason for the Town's refusal related to upholding the residential character of the precinct.
Planning framework
13 It is common ground that the subject land is reserved under the Metropolitan Region Scheme (MRS) in respect of Stirling Highway and immediately adjacent land as a "Primary Regional Road" reservation. But
(Page 6)
- for such a corresponding reservation, as appears in the Town of Cottesloe Town Planning Scheme No 2 (TPS 2 or Scheme), the land would be locally zoned "Residential" with an R-Coding of R30/60. So much appears from the Scheme's maps. Mr Andrew Jackson, who is the Town's Manager of Development Services and who represented the Town, put the regulatory situation as follows:
"As the land is wholly reserved under the [MRS] for Stirling Highway, a single planning determination under that scheme is required, in this case by council acting under delegation from the Western Australia Planning Commission (WAPC)."
15 Thus, it is largely common ground that although TPS 2 "is not directly applicable to the land, it is a framework for the local planning consideration of the proposal as part of the overall decision [to be made] under the MRS".
16 Under TPS 2, "Consulting Rooms" are defined as follows (emphasis added):
"Consulting Rooms - means a building (other than a hospital or medical centre) used by no more than two practitioners who are legally qualified medical practitioners or dentists, physiotherapists, chiropractors, and persons ordinarily associated with a practitioner, in the prevention or treatment of physical or mental injuries or ailments, and the two practitioners may be of the one profession of any combination or professions or practices;"
17 It is common ground that the proposed development amounts to "Consulting Rooms" within the meaning of TPS 2. It is also common ground that, under the Zoning Table, this use is classified as "AA" in respect of the "Residential Zone", being a use that is not permitted unless "special approval" is granted by the Town or, on review, by this Tribunal. As a consequence of this need for special approval, advertising of the proposal was undertaken by the Town. The results of that process have already been mentioned above.
18 It is briefly necessary to refer to three other regional planning instruments or policies which were the subject of submissions by the
(Page 7)
- parties. These were: Statement of Planning Policy No 9 - Metropolitan Centres Policy Statement for the Perth Metropolitan Region (2000) (SPP 9); the Liveable Neighbourhoods Policy (1997); and the Statement of Planning Policy: Network City (Draft) (2006).
19 In the Tribunal's view, it is unnecessary to refer to these instruments - still less to resolve whether there is any apparent inconsistency in certain statements made in them. They operate at a level of generality which is far removed from the relatively more mundane and practical matter that has to be resolved today in terms of the residential nature of the relevant locality, and the likely impact of the proposed change of use.
20 Reference was also made to the Draft Town of Cottesloe Town Planning Scheme No 3 (draft TPS 3). At the time of consideration of this matter by the Tribunal, that draft had not been approved for public advertising by the Minister. In any event, draft TPS 3 does not appear to materially alter the planning framework already described with respect to these zonings or, generally speaking, the criteria for assessment.
21 There was some debate between the parties on matters of access, Highway and other traffic and car parking. Because of the conclusions reached by the Tribunal on the major issue, it is unnecessary to canvass such matters in any detail. In any event, the impact of such concerns is likely to have been minor and the answer may be as short as was recently said in New South Wales in Lang v Woollahra Municipal Council [2007] NSWLEC 679 where Commissioner Watts, at [41], held (emphasis added):
"I am satisfied that given that under the zoning provisions of the [planning instrument] that allows for 'medical consulting rooms' within the Residential 2(b) zone to occupy the whole of a dwelling house, that the matter of car parking and traffic … is largely beyond the scope of this appeal. It is a matter that was not strongly pressed by the council in this appeal. I would not refuse the application for reason of its shortfall in car parking."
Reasons for refusal and procedural history
22 On 26 February 2007, the Town refused the application for the following reasons:
"(a) The proposal is contrary to the orderly and proper planning and the preservation of the amenity of the locality.
(Page 8)
- (b) The proposal would result in the proliferation of non-residential uses in the residential area, contrary to the intent of the local town planning for the area and the related strategic land use direction.
(c) Council is not prepared to apply [its] discretion to support the proposed use for this site, which is classified as 'AA' ([that is], not permitted unless granted special approval) under the local town planning scheme.
(d) Significant objections from residential land owners/occupiers in the surrounding area have been received expressing concerns about the nature of the proposal and its impact on residential amenity, including issues of land use control and amenity.
(e) All of the above are considered relevant to determination of this change of use proposal under the [MRS] having regard to the local area planning implications and impacts."
23 An application for review was lodged in March of this year.
24 By consent, it was agreed that the matter was to be determined upon the documents, subject to a view of the subject land in the presence of the parties, which event occurred in September 2007.
25 The Tribunal expresses its gratitude to both parties' representatives for their extensive submissions and statements (and other supporting documents) which were lodged with the Tribunal.
Draft conditions
26 The parties have exchanged views on the conditions that should be imposed if planning approval were to be given. The conditions proposed by the respondent Town are as follows.
"(1) The number of persons involved in the operation of the business on these premises shall be restricted to one professional practitioner and one administrative staff member (or the full-time equivalent) at any one time.
(2) The hours of operation of the business shall be restricted to between [9 am] and [6 pm] weekdays only, excluding public holidays.
(Page 9)
- (3) This approval is to the particular use and practitioner involved only, and any future intended intensification of that use as applied for and approved, or proposed change of use to another practitioner or type of practitioner or any other use, shall require a further application and approval.
(4) If and when the approved consulting rooms use ceases operation, unless another use is applied for and approved beforehand, the premises shall revert back to residential use.
(5) Signage shall be limited to one advertisement describing the name and nature of the business to a maximum size of 0.2 [square metres] to the Stirling Highway frontage of the property, and to one directional sign for parking to a maximum size of 0.2 [square metres] to the rear of the property.
(6) The external profile of the existing building shall not be changed, whether by the addition of any service plant, fitting, fixture or otherwise, except with the written consent of the Town of Cottesloe.
(7) Any intended air-conditioning plant or equipment shall be located closer to the existing dwelling building than to the adjoining properties, and suitably housed or treated as may be necessary, so as to ensure that sound levels emitted from equipment shall not exceed those outlined in the Environmental Protection (Noise) Regulations 1997.
(8) Prior to commencement of the use, the right of way located at the side and rear, adjacent to the property, being kerbed to the satisfaction of the Town of Cottesloe Manager Engineering Services, with details of the proposed works being submitted in accordance with Town of Cottesloe guidelines and approved prior to the commencement of works.
(9) Prior to commencement of the use, revised and detailed (professionally-drawn) plans being submitted for approval by the Town of Cottesloe Manager Development Services, showing:
- (i) the provision of a minimum of five on-site parking bays, including one parking bay for persons with disabilities, to be constructed and marked in accordance with AS2890.1 and AS1428.1; and
(ii) details of the proposed works for vehicular access and on-site parking, including the extent of and materials for paving, kerbing, drainage, landscaping and fencing (including any gates);
and the works being undertaken and completed by the applicant.
- (10) Prior to the use commencing, the building being modified to comply with the Building Code of Australia for a Class 5 (Office) building, to the satisfaction of the Town of Cottesloe Principal Building Surveyor."
27 Apart from a concern with condition (5) above regarding signage and the rejection of condition (8) dealing with the ROW, the applicant was generally content with these conditions.
28 If the change of use were approved with these conditions, then it is likely that the impact on residential amenity (if any) would be kept to a minimum.
Respondent's case
29 Mr Jackson first took the Tribunal to the objections received from surrounding property owners. Objections were received from 11 out of a possible 14 residents in the block containing the subject land bordered by Stirling Highway, Eric Street, Gordon Street and Boreham Street. These objections, he said, can be divided into two categories:
"The first is the land use considerations associated with any such consulting rooms or professional office non-residential use in a residential area; [for example] parking, hours of operation and so on, which may be assessed in relation to overall amenity.
The second field of concern, about the mental health nature of the consulting rooms, is more subjective and not grounded in planning considerations apart from a broad appreciation of amenity. Hence these concerns can be acknowledged, yet are not readily sustained as a planning issue."
(Page 11)
30 This is an entirely proper concession made by Mr Jackson.
31 Next, Mr Jackson drew attention to the original 1988 scheme report which he submitted was relevant to ascertaining the intent behind the creation of the "Residential Zone". This document contemplated "health centre/consulting rooms" but referred to the Town's policy which was "aimed at ensuring these activities are restricted to the incidental use of a residence or the use of existing commercial premises within the zone". A key objective for the current "Residential Zone" is set out in cl 3.4.1(a) of TPS 2, as follows:
"The purpose and intent of the Residential Zone is to promote a residential environment in any particular locality compatible with the maximum residential density permissible in that locality and with the desire of the inhabitants for Cottesloe to retain its quiet residential character."
32 Mr Jackson next argued that because this was an "AA" use under the Zoning Table, that is, a use not permitted unless "special approval" is granted by the Town, there is a presumption that the use cannot occur unless the Town "considers that upon assessment and advertising the proposal would be acceptable" as against the familiar criteria for deciding such matters found in TPS 2.
33 Mr Jackson argued that the proposed development would be better located in one of the Town's "Business Centres" which, according to the Scheme maps, are located near Windsor Street, Chamberlain Street, Forrest Street (residential and office) and the Town Centre, focussed on Station Street, Cottesloe. Mr Jackson relatedly argued that the relevant objectives for these zones reinforce the residential zoning strategy. In other words, these particular centres were designed to protect residential amenity from the encroachment of non-residential uses. Mr Jackson also submitted that draft TPS 3 and the related draft Local Planning Strategy 2006 reinforce the Town's "intentions to consolidate the Residential zone and to enhance residential amenity".
34 Also central to the Town's case are the existing land use patterns surrounding the subject land. It is useful to set out Mr Jackson's argument on this matter in some detail. He says:
"[The evidence before the Tribunal]illustrates that only a small proportion of lots located on Stirling Highway are used for commercial purposes. The majority consist of residential development. Of the 39 lots located between Forrest and
(Page 12)
- Congdon Streets in the Town, with Stirling Highway frontage, only [nine] have a commercial use. On the eastern side of Stirling Highway, within the Town of Claremont and Shire of Peppermint Grove, over the same distance, there are only [four] such lots (church/school; aged person administration, offices and [a] dentist).
This is reflected in the zoning of the land which is Residential in [TPS 2] and also in the schemes of the adjoining councils. The town planning schemes of the Town of Claremont and the Shire of Peppermint Grove also zone properties along Stirling Highway as Residential, with the exception only of the church/school in Peppermint Grove … [Draft TPS 3] proposes to reinforce the area as residential, including increasing the density in the locality at Wentworth, Perth and Napier Streets.
Over the last couple of years, Council has approved a number of new residential developments and additions and alterations within the locality of the subject lot as illustrated [on the marked-up aerial photograph provided]. A significant development is the conversion of an institutional use to residential development for 14 town houses at 3 Clive Road which is in close proximity to the subject site. Also, Council has recently sold a drainage sump in Eric Street for residential development and the proposed subdivision of the dental surgery at 121 Eric Street is intended for residential development. The house located on the adjoining lot at 461 Stirling Highway, situated between the subject lot and the architects' office has recently reinforced its residential use by seeking the development of a new carport structure."
35 Concerning non-residential properties on Stirling Highway either to the west in the Town of Cottesloe or to the east in the Shire of Peppermint Grove and the Town of Claremont, Mr Jackson produced a marked up aerial photograph showing land use extending approximately half a kilometre north of the subject land on Stirling Highway and approximately a kilometre south - towards Fremantle - on Stirling Highway. This helpful diagram showed some 13 or so separate non-residential uses in that area including two offices, a Telstra exchange, a service station, a dentist (with a residence - see above), two more dental practices, another set of offices, a physiotherapist, an aged persons' centre, a church and school, a former jeweller's shop and a medical centre.
(Page 13)
36 On the same aerial photograph there is shown some 20 lots indicating "recent residential activity" in the Town of Cottesloe; these areas lie to the west of Stirling Highway, running from approximately Clive Road down to a point just North of Albion Street.
37 Mr Jackson also drew attention to the fact the Town refused a proposed change of use for the subject land from residential to that of a chiropractic clinic (presumably "Consulting Rooms") in 1995. As will be seen, the Tribunal regards this decision as significant.
38 Finally, Mr Jackson submitted that the Tribunal could receive useful assistance from two Tribunal decisions, one of the State Administrative Tribunal: Mandurah Doctors and City of Mandurah [2007] WASAT 57 and an earlier decision of the previous Tribunal: Patrick & Anor and Shire of Serpentine-Jarrahdale [2003] WATPAT 28.
39 In the first decision, this Tribunal decided to refuse planning approval for a substantial medical centre proposed to be operated on a large lot in a low density residential area. The Tribunal determined that the proposal would have a significant impact on the amenity and established residential character of the area, and affirmed the decision of the respondent local government not to approve the development. In the other decision, the previous Tribunal decided to refuse a change of use application from residential to consulting rooms. The Tribunal found that such development would be ad hoc commercial development along a major road which was contrary to a policy evidenced in the planning framework and in a draft structure plan and would otherwise prejudice the orderly and proper planning for the area. The appeal was dismissed.
40 For all of these various reasons, Mr Jackson submitted that planning approval should be refused.
The applicant's case
41 Dr Charkey-Papp told the Tribunal that she was a legally and locally qualified consultant psychiatrist working in part-time private practice since 2003 in West Perth. The nature of her practice involved "conducting assessments and follow-ups for strictly ambulatory (outpatient) and voluntary outpatients with mild-moderate psychiatric disorders". She would not be undertaking assessments or long-term treatment of patients "with a history of disorganized behaviour (e.g. chronic schizophrenia), alcohol and substance abuse, violent offences, or [those with] severe intellectual disabilities". She would undertake workers' compensation claim assessments for several purposes, but would
(Page 14)
- not undertake pre-sentence criminal assessments nor engage in Family Court work. Her current practice is approximately 150 stable, medium to longer term patients. Her main area of professional interest and practice is counselling or psychotherapy. Dr Charkey-Papp said:
"Given my medical background, certain emergency medicines and small sample packs of non-addictive medications would be located on the proposed premises for dispensing by me only.
The medicines will be safely and securely locked up in a specially designated cabinet.
The property will be fitted with a monitored alarm and Intercom system at the entrance door."
43 First, in his opinion, the proposed development would be compatible for the purposes of the "Residential Zone" in general and in respect of neighbouring development in particular. The existing building on the subject land was to retain both its external and internal form, and would continue to be a small single storey cottage, indistinguishable from other dwellings in the locality. There would be no relevant noise emanating from the site; it would, in fact, be far quieter than the surrounding residential properties, especially after business hours. There would be no after-hours or weekend and public holiday consultations. He noted that the officers' report to the Council estimated that any increase in traffic would be minor and that parking was generally adequate. He drew attention to the analogous low intensity commercial use which existed in the locality. Mr Brooks said that these "buildings interface well with Stirling Highway".
44 On the planning framework, Mr Brooks commented that the zoning and reserving of the subject land as "Primary Regional Road" under the MRS did not prohibit the proposed use. He argued that TPS 2 should be regarded as "supplementary" and not a substitute for the MRS, and that TPS 2 should "therefore be used for guidance only". He noted that the Town had not attempted to amend its town planning scheme or introduce any planning policy to govern the use of "Consulting Rooms" in residential areas. He said that, significantly, draft TPS 3 does not prohibit "Consulting Rooms" in residential areas.
(Page 15)
45 On the objections that had been received, Mr Brooks submitted that they were too subjective, too emotive and too based on "misinformation" for them to carry much weight.
46 With respect to the cases cited by the respondent, namely Mandurah Doctors and City of Mandurah and Patrick & Anor and Shire of Serpentine-Jarrahdale, theywere, in Mr Brooks' submission, distinguishable from the present circumstances. First, Patrick & Anor dealt with a locality that was "not fully developed and therefore there was a real possibility that an approval could be a precedent for future commercial development" and that significant "weight was therefore given to a proposed structure plan that did not support the proposal". And, with respect to Mandurah Doctors, there were significant amenity impacts in terms of noise and traffic movement in a low density residential area. He contrasted the proposal from Dr Charkey-Papp with the much greater scale of the development under consideration in Mandurah Doctors.
47 Mr Brooks also submitted a letter of support for the application from the most immediately affected neighbour at Lot 101 (No 461) Stirling Highway, Cottesloe.
48 Mr Brooks submitted that the proposed use was of a very low intensity and was similar to a passive part-time "Home Occupation" use in respect of the effect on amenity. The existing built structure would be retained in its present form and the highly desirable streetscape would retain a "classic Californian Bungalow". There would be no significant additional traffic than would result from, say, a grouped dwelling development which is the potential for the lot. The operation times would be normal office hours and there would be no activity at the premises when the majority of residents were "home enjoying their leisure time".
49 For all of these reasons, Mr Brooks submitted that the development should be approved upon the conditions agreed to.
Discussion of planning law and principles
50 In Von Witt v Hobart City Council (1995) 86 LGERA 134, Wright J allowed an appeal from the Tasmanian tribunal which had found, in respect of certain proposed medical consulting rooms:
"To grant [planning] approval would not be to sustain or enhance the character and amenity of this established residential area and would not be consistent with the desire to restrict
(Page 16)
- commercial activities generally to existing non conforming uses or to allow them on the scale of a domestic business."
51 This is consistent with the position of the Town in this matter. Wright J disagreed however, saying, at 140 (emphasis added):
"In dealing with the objectives of Residential 1 Zone … it seems to me that the Tribunal has ignored the qualifying effect of the words 'with minimal intrusion of further development of non-residential uses not necessary to serve local residents.' To my mind this provision amounts to a clear recognition that, whilst the desire is to maintain and improve the overall residential character of development in that area, and that non-residential uses necessary to serve local residents may enhance the amenity of the area, other developments are not absolutely excluded although their introduction should be kept to a minimum. This is a numerical rather than a qualitative restriction."
52 The point of his Honour's remarks is that, apart from heeding any textual injunction in the relevant scheme, the discretion must not be applied unnecessarily to restrict such developments. Von Witt v Hobart City Council is also useful because of its discussion on "generalised statements of principles, objectives and desired future character" which often appear in planning instruments (and which were cited here).
53 Robert Stokes in his article "PlanFirst or PlanWorst? Assessing the Impacts of Proposed Changes to the NSW Planning System" (2002) 8 LGLJ 30 argues as follows (at 35, emphasis added):
"Wright J [also] determined that [the relevant] locality statement was not basis enough to impose stringent conditions on a development consent, finding:
'generalised statements of principles, objectives and desired future character cannot be relied upon to the exclusion of subsequent specific provisions contained in any Schedule except where this is provided for by the Scheme itself.'
Locality statements are thus persuasive, but not prescriptive. This does not enhance certainty in the decision-making process."
(Page 17)
54 Stokes goes on, at 36, to note to the same effect Daehli & ors v Bayside City Council [2001] VCAT 2141 (emphasis added, internal citation omitted):
"In overturning council's refusal, the [Victorian] Tribunal determined not to accord much weight to this character statement, finding that:
the character statement describes common attributes of a relatively large area, rather than the different scale and context of the immediate vicinity of the review site. The character statement is therefore given less weight than if the context was consistent with the character description for (the area)."
56 On the central issue of consulting rooms in residential zones, Mr Jackson is essentially arguing for the position adopted by Commissioner Brown in Cistulli v Lane Cove Council [2004] NSWLEC 707. There, the Court said, at [14]-[15] (emphasis added):
"I refer to the objectives of the Residential 2(a1) zone and the provisions of cl 9(3) of [the Scheme] where consistency with the zone objectives is required otherwise approval must not be granted. The retention and improvement of the existing residential amenity of a detached, single family dwelling area is a zone objective. It must be an important consideration in the assessment of the development application. I am not satisfied that the modifications proposed result in a development that is consistent with this objective.
Even though the zoning makes provision for professional consulting rooms in residential zones, this cannot be seen as an unrestricted opportunity for this form of development. …"
57 That case also reminds us that notwithstanding what is proposed by the individual clinical proponent here, "[planning] approval runs with the land and not the specific characteristics of each individual medical practitioner" (at [17]): but cf the draft conditions in this matter set out above.
(Page 18)
58 A similar conclusion to Cistulli v Lane Cove Council was reached in Wogmed Pty Ltd v Corporation of the Town of Gawler & Anor [2004] SAERDC 66 where the Court concluded, at [46], that the proposed consulting rooms, amongst other things, "would have undesirable negative effects on residential character and residential amenity of the locality".
59 Here, the arguments concerning the subject land are finely balanced. On the one hand, the Town has been apparently consistent in recent years in its decision-making (for example, refusing in 1995 to approve a set of chiropractic consulting rooms proposed for the subject land); secondly, the immediate area, if approval were to be given, would then have two non-residential uses in close proximity, and a third mixed use (until that use reverts to exclusively residential following proposed subdivision) which would arguably lead to an over-concentration of such uses, at least when considered relative to the scattered individual dental practices and other non-residential uses which appear up and down Stirling Highway; and thirdly, the precedent effect might make inroads into the residential character of the area, a character reinforced by what is proposed for the corner lot (No 121 Eric Street) in terms of its proposed reversion to exclusively residential use.
60 On the other hand, such non-residential uses are at least cautiously contemplated for the zone and, as we have seen, such analogous developments appear regularly on the Stirling Highway in the vicinity of the subject land; secondly, the impact of this development would be fairly minimal in terms of any significant detrimental effect on residential amenity (residential character might be another matter), and that the residential built form would remain in its current form; thirdly, the Town has not, as Mr Brooks emphasised, sought to better regulate the matter by the adoption of a more certain written policy on the issue.
61 Nevertheless, the Tribunal has concluded, after much reflection, that the Town's decision is right in principle and ought not to be set aside. The Town's position upholds the underlying residential nature of the area, avoids non-residential over-concentration in this immediate precinct, is consistent with its previous decisions, and promotes orderly and proper planning in terms of land use in the Town. That is a fundamental value of town planning and ought not to be lightly departed from - except for a strong case argued in terms of planning law or principle. Such a case has not been presented here, nor, it appears, could it ever be on the type of material currently available to the Tribunal in the circumstances of the case.
(Page 19)
62 The Tribunal wishes to emphasise that the application itself and its proponent have much merit, and that this decision is not for a moment an adverse reflection on either the applicant, the proposal considered in isolation, or upon the nature of the applicant's practice. Still less is it a response to the concerns expressed by some objectors as to the nature of the clientele of the practice and the alleged issues that may arise therefrom.
63 The correct and preferable decision was, and is, to refuse planning approval in respect of the proposed change of use.
Order
64 For the reasons set out above, the Tribunal orders that:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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