CHISHOLM CATHOLIC COLLEGE and CITY OF BAYSWATER - [2008] WASAT 144

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CHISHOLM CATHOLIC COLLEGE and CITY OF BAYSWATER [2008] WASAT 144

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS R MOORE (SENIOR SESSIONAL MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 18 JUNE 2008

DELIVERED : 18 JUNE 2008

FILE NO/S: DR 378 of 2007

BETWEEN: CHISHOLM CATHOLIC COLLEGE
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning - Conditions of development approval - Alterations and additions to school premises - Limitation on maximum number of students - Setback - Restriction on use of carpark - Privacy

Legislation:

City of Bayswater District Town Planning Scheme No 24, cl 8.1, cl 8.2, Table 2

Result:

Conditions varied

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen
Respondent: Mr CA Slarke

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Chisholm Catholic College and City of Bayswater [2008] WASAT 73
Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 86; (2005) 38 SR (WA) 376

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter concerned four conditions of development approval for alterations and additions to a school. The alterations and additions will accommodate an increase of up to 30% in the number of students. The disputed conditions limit the maximum number of students, require additions to be set back further from the street, preclude use of a staff car park between 7 pm and 7 am, and require a landscaping strip adjoining a common boundary with a residential property.
Following the hearing, the Tribunal gave an oral decision in which it varied the conditions.
The Tribunal affirmed the condition limiting the maximum number of students, because traffic analysis and modelling had only been undertaken in relation to that number, and adequate on-site car parking for a school with a greater number would not necessarily prevent adverse traffic impacts, given experience with the operation of the school.
The Tribunal deleted the condition requiring an additional setback, because the previous approval and construction of a monolithic school building in the vicinity of the additions had so significantly and detrimentally affected streetscape and character that the proposed setback is acceptable in that built context.
The Tribunal determined that it is unnecessary and inappropriate, potentially giving rise to safety concerns, to restrict the hours of the car park. Rather, the Tribunal restricted its use to staff and required an electronic gate to regulate use.
Finally, the Tribunal affirmed the condition requiring a landscape strip, because physical alterations to a school building will give rise to overlooking of the adjoining house.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

Chisholm Catholic College (school) seeks review of a decision of the City of Bayswater (City or Council) to grant conditional development approval for additions and alterations to the school premises at No 1104 (Lot 129) Beaufort Street, Bedford (site).
The proposed additions and alterations include the following:
•piping of a drain on a water corporation drainage reserve adjacent to the school site;
•construction of a new carpark and through traffic area over the drainage reserve;
•construction of a new hospitality wing and four new classrooms;
•demolition of a house containing the current uniform shop and construction of a new uniform shop below the hospitality wing; and
•alterations and additions to the building known as Block A to incorporate new tutorial rooms, stores and additions to the music facility.
The school currently has about 1,380 students. However, the number of students will increase to about 1,650 by the beginning of the 2010 school year to accommodate the incorporation of year 7 into the school in accordance with State law. The school estimates that the number of students is likely to increase to up to 1,800 over the next decade.
The school is located in a substantially residential area. Mr Damien Martin, the City's Planning Services Manager, gave evidence that, prior to the construction of the through traffic area in accordance with the subject approval, the school experienced significant traffic flow and parking problems in the mornings and afternoons. Mr Martin said that the problems associated with the traffic congestion and parking have caused difficulties with neighbours in the past.

Background

On 11 October 2007, the City approved the proposed development under the Planning and Development Act 2005 (WA) and its applicable local planning scheme, the City of Bayswater District Town Planning Scheme No 24 (DTPS 24), subject to 30 conditions. On 8 November 2007, the school commenced these proceedings for review of the City's decision, specifically in relation to 12 conditions.
Through a process of mediation and discussion between the parties, the 12 disputed conditions were initially reduced to seven.
One of these seven conditions was reviewed by the Tribunal at an earlier hearing and replaced in a manner that enabled a building licence to be granted for part of the approved development: see Chisholm Catholic College and City of Bayswater [2008] WASAT 73.
More recently, the school has withdrawn its objections to two conditions.
The dispute now before the Tribunal therefore relates to four conditions, namely, conditions 3, 24, 25 and 26, in a consolidated set of conditions provided by the City's solicitors, McLeods, to the school's solicitors, Lavan Legal, on 4 February 2008. In these reasons, we will refer to the disputed conditions as conditions 3, 24, 25 and 26.
We will now address the disputed conditions in turn.

Condition 3

Condition 3, as imposed by the City, is as follows:
"A maximum limit of 1,800 students to be enrolled at any one time unless a formal application for additional students is made, with such application including a master plan demonstrating future development for the entire site."
Mr Paul McQueen, counsel for the school, submits that condition 3 cannot be lawfully imposed, because it seeks to fetter future consideration of development in relation to the school site, and does not fairly or reasonably relate to the proposed development. Mr McQueen relies on the decision of the Tribunal in Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 86; (2005) 38 SR (WA) 376, in which the Tribunal determined that a condition did not fairly and reasonably relate to a development, "as it seeks to maintain strict compliance with the development standards in the Scheme into the future, rather than relating to the development being approved".
The Tribunal considers that Starworld Holdings Pty Ltd and City of Melville is distinguishable in relation to the condition in dispute in this case. The condition in dispute does not fetter future decision‑making. A development application can subsequently be made to allow more students, and indeed the condition contemplates that that may be the case. Any such development application would need to be assessed having regard to the applicable planning instrument and policies, and on its merits.
The condition fairly and reasonably relates to the proposed development. Ms Patricia Rodrigues, the school principal, gave evidence that:
"The proposed development will provide facilities to accommodate a maximum of 1,800 students being present on the campus at any one time …"
The additional classrooms and other new facilities that are the subject of the development presently before the Tribunal will accommodate an increase of up to 420 students or about 30% over the current student population at the site. Additional students will give rise to town planning impacts, most notably, in terms of the history of the operation of the school in recent times, in terms of traffic and congestion issues. Placing a cap on the number of students places a cap on the town planning impacts, and such a condition is, in the circumstances of this case, lawful.
On the merits, the school objects to the maximum cap of 1,800 students and also to the requirement for a master plan. However, at the hearing, subject to its argument in relation to the lawfulness of the condition, the school indicated that it would accept a cap of 2,002 students by way of an alternative condition.
The school presented essentially three reasons for a cap of 2,002 rather than 1,800 students.
First, the number of on‑site car parking bays proposed in the development satisfies the car parking development standard prescribed by cl 8.1 and Table 2 ‑ Development Standards in DTPS 24 for a secondary school with 2,002 students. If a cap is imposed at all, Mr McQueen contends that it should be related to the minimum on‑site car parking development standard in the Scheme.
Second, the Building Code of Australia (BCA) requirements for toilets in schools currently limits student numbers at the school to either 1,650 or 1,800 students; it is not clear on the evidence which.
Third, Ms Rodrigues explained that, as she cannot predict changes in State education requirements in the future, and while she does not intend to enrol more than up to 1,800 students at present, she would like some "room to manoeuvre" if there are legislative or regulatory changes affecting the school.
The City imposed the cap of 1,800 students because it expects that the through traffic system, which is the subject of the development, will operate satisfactorily for this number, but is uncertain about whether it will operate satisfactorily if the school accommodates an increased number of students.
The Tribunal had the benefit of expert evidence from Mr Behnam Bordbar, a traffic engineer, who was called on behalf of the school. In his statement of evidence, Mr Bordbar referred to computer analysis and modelling based on 1,800 students at the school. The modelling showed that the surrounding road network, including a critical intersection, would operate satisfactorily and would have some spare capacity at this number of students, provided that appropriate management is in place. In his statement of evidence Mr Bordbar recommended:
"At the time of any future expansion of the college, in addition to the proposed development, further detailed analysis of [the critical] intersection [should] be undertaken."
When Mr Bordbar was asked by the Tribunal whether the traffic system is likely to operate satisfactorily with an additional 200 students at the school, he replied that, "it should be able to accommodate" this increased number, but that as it is not practicable to make physical provision for absolute peak school traffic, satisfactory operation requires ongoing active management by the school.
The Tribunal ultimately considers that the cap imposed by the Council should not be increased for the following three reasons.
First, the only considered traffic analysis and modelling that has been undertaken is in relation to 1,800 students. While Mr Bordbar expressed the opinion in oral evidence that the traffic system should be able to cater for 2,000 students, this evidence, not based on modelling, was, as Mr Craig Slarke, counsel for the City, observed, at least to some extent speculative, and was qualified by the need for ongoing active management by the school. In addition, Mr Bordbar previously recommended, as noted earlier, that any increase over 1,800 students should be subject to further detailed traffic analysis.
While the Tribunal certainly understands the school's wish to have flexibility in student numbers, it would be contrary to orderly and proper planning to grant an approval for more students than have been the subject of traffic assessment and modelling, particularly given the history of traffic congestion problems associated with the school.
Second, both Mr Bordbar and the designing architect, Mr Bruce Callow, were emphatic that the school has given rise to traffic problems in the past, notwithstanding the provision of more on‑site car parking than has been required by DTPS 24 relative to the number of students. In other words, the fact that the number of on‑site car parking bays proposed is adequate for a secondary school with 2,002 students under DTPS 24 would not necessarily prevent adverse traffic impacts in the circumstances of this case.
Third, the BCA ratio of students to toilets may be amended over time and, in any case, as Mr Martin said in evidence, it may be possible to provide additional toilets without the requirement for further development approval.
However, the Tribunal does not consider that the requirement for a master plan is reasonable or necessary. If ultimately the school wishes to increase student numbers beyond 1,800, it would no doubt discuss any necessary information or requirements with the Council as part of the pre‑development application or development application processes.
Consequently, the Tribunal considers that condition 3 should be retained, other than the words "with such application including a master plan demonstrating future development for the entire site".

Condition 24

Condition 24, as imposed by the Council, states as follows:
"The proposed additions to Block A to be set back a minimum of 6.0 m from the property boundary."
The additions to Block A comprise the extension of a music room, two new stores and new toilets on the ground floor, and two new tutorial rooms on the first floor. The proposed additions would present as a single‑storey building with blank façade and skillion roof, set back approximately 14 metres from the adjoining property at No 6 Young Street to the north, and as a one- to two‑storey building to the south and east, set back by 3 metres from the Young Street boundary.
Block A is located on the western side of the head of the cul‑de‑sac at which Young Street terminates. To the south of the head of the cul‑de‑sac is the school's existing performing arts facility. To the east of the head of the cul‑de‑sac will be the approved new hospitality wing and uniform shop.
Young Street is a short residential street that falls sharply from Coode Street in the north, with dramatic views to the skyline of central Perth. The residential dwellings have fairly consistent setbacks of 6 metres to 8 metres. The closest residences to the school site are separated from existing or approved school buildings by school car parks accessed from Young Street.
Clause 8 and Table 2 ‑ Development Standards of DTPS 24 prescribes minimum setbacks for a secondary school of 13.5 metres to the street and 6 metres to the side and rear boundaries. The parties in this case jointly consider that the relevant setback of Block A to Young Street is a side or rear setback with a minimum development standard of 6 metres. The Tribunal does not agree with the joint position of the parties that the relevant setback to Young Street is a side or rear setback. It is plainly a street setback with a minimum development standard of 13.5 metres.
However, cl 8.2 of the Scheme confers a discretion on the Council to vary the minimum setbacks if it is satisfied that:
"(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
b) the noncompliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality."
Condition 24 would, in effect, require the redesign of Block A additions so as to have a minimum setback of 6 metres from Young Street. Mr Martin considers that the purpose of condition 24 is to:
"(a)maintain a consistent 'rhythm' and setback for buildings fronting Young Street, and
(b)reduce or minimise the sense of enclosure and the effect of the scale and bulk of the school buildings on the residents of Young Street."
Mr Martin, Mr Callow and Mr Ken Adam, a consultant town planner who gave evidence on behalf of the school, agree that the character of the lower part of Young Street in the vicinity of the head of the cul-de-sac is significantly different to the character of the upper part of Young Street.
The performing arts centre that is located to the south of the head of the cul-de-sac is a 38 metre long, two- to three-storey high, monolithic masonry structure, presenting for its full width with an essentially unarticulated blank façade to Young Street. The approval of this structure in this location has had a significant and detrimental impact on the streetscape of Young Street and the amenity of the wider locality. This building shows utter disregard to its location at the culmination of Young Street and its key location in a dramatic vista. However unfortunate and undesirable it is, the performing arts centre has fundamentally changed the built character of Young Street in general and the lower portion of the street in particular.
In this context, we accept the following evidence of Mr Adam:
"In my opinion, the lower scale of the proposed additions and their location at the east side set back from the north‑east corner of the existing building mean that they would have a negligible impact, positive or negative, on the amenity of No 6 Young Street. Further, in the context of the development currently surrounding the head of the cul-de-sac[,] the proposed additions would have, in my opinion, if any, a slightly positive impact on the amenity of the street. I say this because the lower height of the additions would tend to reduce the apparent scale of the current building."
We find that the proposed additions to Block A will have minimal impact on No 6 Young Street, because it will present as a single‑storey building when viewed from the north, the land falls between No 6 Young Street and the proposed additions, and the proposed additions will be set back by approximately 14 metres.
We find that, in the context created by the approval of the performing arts centre, the proposed additions to Block A will have minimum impact in terms of streetscape.
The Tribunal is, therefore, satisfied that approval of the proposed development, with a 3 metre setback to Young Street, would be consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality, and the setback will not have any adverse impact upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality. The discretion conferred by cl 8.2 of the Scheme should appropriately be exercised in the circumstances of this case, such that condition 24 should be deleted.

Condition 25

Condition 25, as imposed by the City, states as follows:
"The carpark adjoining Block A to be restricted to staff only between the hours of 7 am to 7 pm, Monday to Friday, with no after‑hours use."
Mr McQueen submits that the condition cannot be lawfully imposed, because it does not fairly and reasonably relate to the proposed development. Mr McQueen notes that the car park is currently configured as a nine‑bay car park and is used by the school, and will continue to be configured in this way and used.
However, as noted earlier, the development the subject of these proceedings facilitates an increase in the number of students by up to 30%. Such a significant increase in the number of students is likely to require an increase in the number of staff at the school. The car park in question is therefore, likely to be more intensively used than is currently or has been historically the case. We, therefore, find that there is a nexus between the condition and the proposed development, such that the condition can be lawfully imposed.

On the merits of condition 25, the parties agree that the car park can and should be restricted to staff use only. The school has technically restricted use of the car park to staff for some years, although it appears that the car park can be used by non‑staff, particularly by parents picking up children undertaking music studies in the adjoining building. Although there is a gate, it is manually operated and, it appears on the evidence, is left open when staff access the car park.
The school is also willing to provide an electronically‑operated gate to further regulate use of the car park.
The parties, however, disagree as to whether the car park should be regulated in hours of use.
The school contends that the hours should not be restricted, because teachers are, on occasion, required to work before 7 am or after 7 pm, and a restriction on the hours of use would cause inconvenience in having to move cars, and potential safety concerns, particularly for female teachers late at night.
Mr William Vos, who has owned and lived at No 6 Young Street with his family for the past 24 years, gave evidence that the car park has, on occasion, been used very early or very late, and has caused him and his family disturbance. However, it appears that this disturbance has been principally, if not exclusively, caused by parents and other non‑staff users.
The Tribunal considers that the restriction to staff, the allocation of particular bays to staff, and the installation of an electric gate will adequately ensure the appropriate and limited use of the car park, and will minimise amenity impacts on Mr Vos' property to an acceptable level.
It is therefore unnecessary and inappropriate, potentially giving rise to personal safety issues on the part of staff, to restrict the hours of use of the car park.
The condition should be amended to restrict the car park to allocated teacher and other staff parking, with an electronically-operated gate to preclude use by others.

Condition 26

Condition 26, as imposed by the Council, is as follows:
"A buffer zone of mature trees be planted on the boundary of the adjoining Lot 26, No 6 Young Street, in consultation with the adjoining neighbours."
The boundary adjoining No 6 Young Street comprises a landscaped area towards the street with two large and mature trees, the northern edge of the car park adjoining Block A, with a narrow landscaped strip that is not used for landscaping, and a further landscaped area to the west of the car park, which is now generally devoid of substantial vegetation, but which previously included a mature tree.
Block A is set back approximately 12 metres from the common boundary, although this setback includes the narrow planter adjoining the common boundary, and a narrow but more substantial planter adjacent to the building.
Mr Bordbar explained that the car park dimensions would make provision of anything other than very narrow planting strips at the common boundary impossible. Mr Adam considers that planting on the boundary would not have any effect on the visual impact of the proposed development.
However, the Tribunal considers that there is capacity to reconfigure the car park to combine the two narrow landscape strips into a more substantial strip, in the order of one metre in width. Such a reconfiguration would involve a relatively small amount of work in terms of removing the planting strip adjacent to the building.
The Tribunal considers that while the existing car park may be noncompliant with relevant standards, it appears to function, and that if the car park were reconfigured to provide a more substantial one metre wide landscaping strip along the common boundary, it would continue to function in substantially the same way in which it has functioned to date. The Tribunal notes that the car park will only be used by staff who, it may be reasonably assumed, are or will very shortly be familiar with the intricacies of the car park.
The Tribunal considers that condition 26 fairly and reasonably relates to the proposed development, and is warranted in the circumstances of the case, because the development includes alterations to the upper level of Block A in its northern part which is likely to give rise to some overlooking of the property at No 6 Young Street. The alterations involve the replacement of toilets and storage areas with general‑purpose rooms.
The general-purpose rooms GPLA 6 and GPLA 5 have existing north‑facing windows that would plainly allow viewing over the fence line and through the side windows of the adjoining property at No 6 Young Street. While the building at the school site is set back by 12 metres, nevertheless there is clearly potential for overlooking by students in a manner which does not presently occur. A landscape strip in the one metre section adjoining the common boundary would mitigate the privacy issue that is created by the physical works and change of use in the uppermost level of Block A within the proposed development.
Finally, in relation to privacy issues, Mr Vos expressed concern that the alteration of the toilet in the northern part of Block A into the whole of GPLA 7 and part of GPLA 6 will give rise to overlooking, not only into the side windows of his home but also into the rear yard area. Having viewed the site and Mr Vos' property, the Tribunal considers that his concern is well‑founded. We have discussed with the parties this afternoon how the concern might be addressed.
The windows of the toilets are highlight windows with obscure glazing. The proposed development involves the increase in the size of the windows so as to match the general nature of windows on the northern façade of Block A. Mr McQueen submits that the school's preferred solution is to allow the proposed window size, but to incorporate a requirement for obscure glazing up to 1.6 metres above finished floor level, although, ultimately, the school would accept a solution that does not increase the size of the windows.
We consider that the most appropriate solution to the privacy concern from the room in the place of the current toilets is to restrict the windows to their current size and location. We are conscious of the designing architect's understandable wish to provide cross‑ventilation. However, each of the rooms has other existing windows which will be retained, and the current toilet windows will provide cross‑ventilation. As noted earlier, the current toilet windows are obscure glazed. There seems to be no reason why those windows cannot be clear glazing, if that is the wish of the school.

Orders

For these reasons, we make the following orders:
1.The application for review is allowed in part.
2.The decision of the respondent made on 11 October 2007 to grant conditional development approval to the development of No 1104 (Lot 129) Beaufort Street, Bedford is varied as follows with reference to the condition numbers in the consolidated set of conditions provided by McLeods to Lavan Legal on 4 February 2008:
(a)by deleting condition 3 and substituting the following condition:
"3.A maximum of 1,800 students to be enrolled at any one time unless development approval for a greater maximum number is applied for and granted."
(b)by deleting condition 24;
(c)by deleting condition 25 and substituting the following condition:
"25.The carpark adjoining Block A is to be restricted to staff only, with each car bay allocated to a particular staff member, and is to be accessed by an electronically‑operated gate.";
(d)by inserting a new condition 31 as follows:
"31.The existing window openings to the rooms that are designated GPLA 6 and GPLA 7 in Block A shall be retained in their current location and shall not be increased in size."

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER