DAO JI ASSOCIATION and CITY OF GOSNELLS
[2020] WASAT 10
•15 JANUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DAO JI ASSOCIATION and CITY OF GOSNELLS [2020] WASAT 10
MEMBER: MR S WILLEY, MEMBER
MR B HUNT, SENIOR SESSIONAL MEMBER
HEARD: 23 & 24 JULY 2019, FURTHER SUBMISSIONS ON 6 NOVEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: DR 280 of 2018
BETWEEN: DAO JI ASSOCIATION
Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning - Development application - Land use classification - Principles of interpretation of planning schemes - Best fit principle - Whether proposed use is properly classified as 'community purpose', 'place of worship', 'educational establishment' or 'club premises' - Equestrian uses - Traffic - Amenity - Compatibility
Legislation:
City of Gosnells Local Planning Scheme No. 6, cl 1.6, cl 3.3.2, cl 3.4.1, cl 4.11.2, cl 4.13.1, cl 4.13.7.1, Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)
Interpretation Act 1984 (WA), s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 1, cl 64, cl 67, Pt 3, Pt 4
Planning and Development Act 2005 (WA), s 68(1)(a), s 68(1)(b), s 241(1), s 256, s 257B(2)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31
Town Planning and Development Act 1928 (WA)
Result:
Application for review allowed subject to conditions
Summary of Tribunal's decision:
The Dao Ji Association (applicant) sought approval to change the use of Lot 300 (No 5) Canter Court, Orange Grove to allow it to be used for bi-weekly meetings (as well as five three-day philosophy classes per year) (Proposed Development).
The City of Gosnells (respondent) refused the application inter alia on the basis that the Proposed Development:
(a) was inconsistent with the objectives of the General Rural zone in the City of Gosnells Local Planning Scheme 6 (LPS 6); and
(b) would have a detrimental impact on the amenity of the locality.
There was a contest as to the proper classification of the Proposed Development under LPS 6. The applicant considered that the appropriate classification was 'community purpose'. The respondent considered that the proper classification was 'club premises'. The Tribunal also requested the parties to consider whether the Proposed Development should be classified as either a 'place of worship' or an 'educational establishment'. Applying the ordinary canons of construction applicable to planning schemes, the Tribunal concluded that the Proposed Development was properly classified as 'club premises'.
The Tribunal found that the Proposed Development would, subject to compliance with conditions, comply with all applicable standards and requirements of LPS 6.
The Tribunal also found that the Proposed Development warranted support having regard to the various matters identified at cl 67 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). In particular, the Tribunal found that the Proposed Development:
(a) was appropriate from a traffic perspective and that any interaction between horse riders (which use Canter Court to access nearby bridle trails) and vehicles could be appropriately managed;
(b) was not inconsistent with the aims and provisions of LPS 6 nor contrary to orderly and proper planning; and
(c) was appropriate from an amenity and land use compatibility perspective.
The Tribunal found that the Proposed Development should be approved subject to conditions.
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr J Algeri |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | Altus Planning & Appeals (as agents) |
Case(s) referred to in decision(s):
Adams and Western Australian Planning Commission [2007] WASAT 109
ADD Design Pty Ltd v Brisbane City Council [2012] QCA 44; (2012) 186 LGERA 390
APN Outdoor and City of Cockburn [2014] WASAT 32
Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Chiefari v Brisbane City Council [2005] QPELR 500 ; [2005] QPEC 9
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
City of Swan v West Shalom Group Inc [2017] WASC 217
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
Development Watch Inc v Sunshine Coast Regional Council [2018] QPEC 6
Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159
Gerhardt v Brisbane City Council [2017] QCA 285; (2017) 226 LGERA 257
Johnson v Minister for Planning [2018] WASC 334
Livingstone Shire Council v Brian Hooper and M3 Architects [2003] QPEC 63; [2004] QPELR 308
Luzny and Western Australian Planning Commission [2006] WASAT 35
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89
Rando and City of Gosnells [2019] WASAT 6
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Sanders v City of South Perth [2019] WASC 226
Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124
Spartel Pty Ltd and City of Wanneroo [2016] WASAT 110
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
The Bethanie Group Inc and Presiding Member of the Metro NorthWest Joint Development Assessment Panel [2018] WASAT 45
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Urban Resources Pty Ltd and City of Swan [2016] WASAT 81
Vella v Commissioner of Police [2019] HCA 38; (2019) 93 ALJR 1236
West Australian Shalom Group Inc and City of Swan [2018] WASAT 36; (2018) 94 SR (WA) 276
West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41; (2016) 88 SR (WA) 361
Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA)
Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The subject land is known as Lot 300 (No 5) Canter Court, Orange Grove and has an area of 9,978m2 (Lot 300).
Lot 300:
a)is located at the corner of Canter Court and Kelvin Road;
b)is within the City of Gosnells but is only 200 metres south-west of the municipal boundary with the City of Kalamunda; and
c)contains a residential dwelling and associated outbuildings (the Premises).
The Dao Ji Association (applicant) seeks approval for a change in use to allow Lot 300 to be used for what it says is a 'community purpose' for the purposes of the City of Gosnells Local Planning Scheme No. 6 (LPS 6).
Lot 300 is zoned 'General Rural' in LPS 6 and 'Rural' in the Metropolitan Region Scheme.
The proposal was advertised for public submissions and was refused by the City of Gosnells (City or respondent) on 9 October 2018. During advertising there were six submissions received, all of which objected to the Proposed Development.
The applicant applied for a review of the City's decision on 6 November 2018. The matter was mediated and the respondent considered a revised proposal pursuant to an invitation by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On 26 February 2019 the City reaffirmed its decision to refuse the proposal for the following reasons:
1)The use is not consistent with the stated objectives of the 'General Rural' zone, as defined by LPS 6.
2)The scale of the use, in relation to the number of people likely to attend the site, exceeds what could be expected within an established rural-residential area.
3)The proposed use would have a detrimental impact upon the prevailing rural-residential amenity of the area.
On review, the Tribunal has determined that the application for review should be allowed subject to conditions.
The Proposed Development
The objectives of the Dao Ji Association, as set out in its constitution, are as generally follows:
a)to promote a concern for the enhancement of ancient moral education in relation to respect and kindness towards parents, seniors, neighbours and others as laid down by Confucianism, Taoism and Buddhism;
b)to organise and encourage charitable functions and deeds;
c)to promote and spread the philosophy and practice of Confucianism, Taoism and Buddhism in order to purify one's conduct, speech and mind;
d)to represent and advocate the views and wishes of everyone in the followers of the Confucianism, Taoism and Buddhism to help everyone to live in brightness and happiness and more meaningful life;
e)to benefit society through developing good character and with proprietary, benevolence and righteousness while dealing with each other;
f)to recover original true kind nature and strike for peace and harmony for the whole world; and
g)to edit, print, publish, issue and circulate such publications as approved by the executive committee is paying for the edification or education of members and followers.
The Dao Ji Association is a not-for-profit organisation. Membership is open to anyone in the community upon the payment of a fee. However, the Premises are only available for use by members.
The activities undertaken at the Premises include group singing sessions, silent meditation, sharing meals and philosophy classes. These meetings take place in the Premises in Lot 300 in what appears to be a cleared lounge/dining room.
During the biweekly sessions any attendee has the opportunity to raise awareness of any cause they seek to support. The class then discuss whether to organise support for that cause.
The following outreach programs have been, or are being, supported by the Dao Ji Association:
a)local authority tree planting events;
b)multicultural events;
c)food and culture events;
d)animal rights activism groups;
e)raising money to assist other charities operating in the community;
f)regular blood donations to the Red Cross;
g)volunteering at various nursing homes; and
h)social touring and spiritual counselling family groups in crisis.
The applicant also raises funds to assist philosophers from around the country and globally to attend and lead seminars, both at the Premises and externally. The funding normally includes accommodation, airfares and food.
The hours of operation of the Premises and expected number of attendees are:
a)weekly philosophy classes between 7.00 pm and 9.30 pm on Wednesday for a maximum of 25 attendees;
b)weekly philosophy classes between 10.00 am and 3.00 pm on Saturdays for a maximum of 60 persons; and
c)a maximum of five three-day philosophy classes annually, held from Friday to Sunday between the hours of 8.00 am and 7.00 pm, for a maximum of 60 persons.
The Proposed Development also includes:
a)the provision of 21 unconstructed and unsealed car bays as well as an area for overflow parking;
b)placement of four demountable structures to be used as ablution facilities, an indoor playground, outbuilding and kitchen; and
c)the Premises to be used as a dwelling for two people with four further people staying there on an incidental basis.
The Tribunal observed Lot 300, the Premises and the surrounding locality at a site visit at the commencement of the final hearing.
The Tribunal will refer to the applicant's proposal as the Proposed Development.
Applicable planning framework
Local planning scheme No. 6
As the Tribunal noted in Rando and City of Gosnells [2019] WASAT 6 at [34]-[35], LPS 6 is a local planning scheme prepared under the former Town Planning and Development Act 1928 (WA) and continued pursuant to s 68(1)(a) of the Planning and Development Act 2005 (WA) (PD Act).
LPS 6 commenced on 15 February 2002 and has force and effect as if it were enacted by the PD Act: s 68(1)(b) of the PD Act. Pursuant to s 256 of the PD Act the Minister for Planning has prepared regulations for local planning schemes including a set of provisions which are deemed to apply to local planning schemes. These 'deemed provisions' are contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations).
By reason of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations), the deemed provisions have effect and may be enforced as part of each local planning scheme. The deemed provisions form part of LPS 6. What the Tribunal considers to be the relevant matters identified in cl 67 of the deemed provisions applicable to the Proposed Development are set out at [142].
The objectives of the General Rural zone are to provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality.
LPS 6 includes the following aims (at cl 1.6):
…
(e)To protect and enhance the quality of the urban and rural living environments of the District, and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community.
…
(g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment[.]
The Proposed Development was put forward on the basis that it is properly classified as a 'community purpose' for the purpose of planning assessment under LPS 6. The City does not agree with the applicant's classification. Rather, the City submits that the Proposed Development is a 'club premises'.
Club premises is an 'A' use in LPS 6 in the General Rural zone. By reason of cl 3.3.2 of LPS 6, an 'A' use cannot be approved unless the local government (and now the Tribunal) exercises discretion by granting planning approval after giving notice pursuant to cl 64 of the deemed provisions.
Community purpose is a 'D' use within the General Rural zone. Pursuant to cl 3.3.2 of LPS 6 a 'D' use means that the use is not permitted unless the local government (and now the Tribunal) has exercised its discretion by granting planning approval.
Clause 3.4.1 of LPS 6 provides that if a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
The question of the appropriate classification of the Proposed Development is discussed at [95]-[137] of these reasons.
Setbacks and vehicle parking under LPS 6
Table No. 2C: Rural Zones of LPS 6 requires setbacks of any development on land which is zoned General Rural to be 15 metres to a primary and secondary road and 3 metres for rear and side setbacks.
Clause 4.13.1 of LPS 6 provides that:
Unless otherwise provided by the Scheme, all non-residential development (other than a Residential Building) is required to provide concrete or bitumen sealed, kerbed, marked and drained onsite car parking in accordance with the requirements in Table No's. 3A and 3B. All residential development is to comply with the car parking requirements of the R-Codes.
Where a development is not specified in Table 3A the City shall determine car parking requirements having regard to the nature of development, the number of vehicles likely to be attracted to the development and the maintenance of desirable safety, convenience and amenity standards: cl 4.13.1 of LPS 6.
Pursuant to Table No. 3A - Parking Standards in LPS 6 the parking requirements for a club premises are as follows:
a)one space for every four seats;
b)one space for every four persons the facility is designed to accommodate; or
c)one space every 4m2 used for tables and chairs, whichever is the greater.
Clause 4.11.2 of LPS 6 sets out the following in relation to development in unsewered areas:
Where connection to a comprehensive reticulated sewerage system is not available, no development within on-site effluent disposal in excess of that of a single house or single residential equivalent, shall be approved unless the proposed development is in accordance with the provisions of the Government Sewerage Policy.
Clause 4.13.7.1 of LPS 6 requires that Table No. 3B: Parking Design Requirements be used to establish the dimensions, parking angles and carriageway width in the layout of the car parking areas.
State Planning policy 3.7 - Planning in Bushfire prone areas
Lot 300 is located within a designated bushfire prone area. State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7) applies to the Proposed Development: cl 4 of SPP 3.7.
In accordance with the requirements of SPP 3.7 the applicant prepared a bushfire management plan (BMP) in support of the development proposal which identifies that the Proposed Development, on completion, would be rated with an acceptable bushfire attack level rating of BAL 29.
It is therefore not necessary to address, in any detail, the issue of bushfire in these reasons.
Foothills Rural Strategy
The Foothills Rural Strategy (FRS) was adopted by the City in 2004 and was revised in November 2016. The FRS identifies and addresses the amenity of the City's rural areas.
However, the lawfulness of the City's revisions to the FRS undertaken in November 2016 are challenged by the applicant. The applicant submits that the City did not advertise the revised FRS and no consent to advertise the FRS (or certification) has been received from the Western Australian Planning Commission (WAPC) which is required under Pt 3 of the LPS Regulations.
Perth and Peel @ 3.5 million
In March 2018 the State Government released Perth and Peel @ 3.5 million which comprises a suite of documents outlining a growth strategy for land use and infrastructure for the Perth and Peel region.
Four sub-regional land-use planning and infrastructure frameworks are included in that suite of documents. These frameworks detail what is considered to be a 'whole of government' approach to structure planning and will form the basis of future schemes and amendments thereto.
Lot 300 is located within the South Metropolitan sub-region and is depicted as urban expansion on the relevant plans.
The deemed provisions
The parties consider that the following matters identified in cl 67 of the deemed provisions arise for consideration in these proceedings.
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
…
(c)any approved State planning policy;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of -
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(y)any submissions received on the application;
…
(zb)any other planning consideration the local government considers appropriate.
Issues
The Tribunal considers that the following issues arise for determination.
1)the proper classification of the Proposed Development under LPS 6;
2)whether the Proposed Development complies with the applicable standards and requirements set out in LPS 6;
3)whether the Proposed Development is acceptable having due regard to the relevant matters set out in cl 67 of the deemed provisions; and
4)whether the Proposed Development should be approved in the exercise of discretion.
The role of the Tribunal
This matter arises in the Tribunal's review jurisdiction. The role of the Tribunal is to hear the matter de novo and to make the correct and preferable decision: s 27(2) of the SAT Act.
Evidence before the Tribunal
The applicant called Mr Robin White from Transcore Consulting. Mr White is a transport and traffic engineer.
The Tribunal heard evidence from two expert planners: Mr David Maiorana (from the town planning/surveying firm Harley Dykstra) for the applicant and Mr Benjamin Laycock (from the town planning firm Altus Planning & Appeals) for the respondent.
The respondent also called Ms Nicole Christie who is a resident of the locality and the current President of the Orange Grove Horse and Pony Club. With the agreement of the parties, Ms Christie was not required to give oral evidence at the final hearing.
Traffic evidence
Mr White gave evidence about the traffic impacts arising from the Proposed Development. As part of his evidence he reviewed the Traffic Impact Statement (TIS) prepared by Cardno Consultants (dated 30 August 2018) which was prepared in support of the Proposed Development.
Mr White's evidence was that the TIS was prepared in accordance with the WAPC's Transport Impact Assessment Guidelines (2016). Mr White agrees with Cardno Consultant's conclusions in the TIS that the Proposed Development will not cause any material impact on the surrounding road network, including horse riders.
As will be explained, this locality is used for equestrian activities as horse riders use the road network to move between properties, bridle paths and the Korung National Park. There is also a trotting track south-west of Lot 300 on the opposite side of Kelvin Road.
Mr White observes that the Proposed Development only impacts Canter Court for the first 60 metres (where cars access and egress Lot 300). Canter Court is designed to accommodate 3,000 vehicles per day and therefore the Proposed Development does not raise concerns from a road capacity perspective. To the extent that horse riders use Canter Court, Mr White considers that it is reasonable to expect them to use the gravel verge - not the road pavement area.
Mr White does not consider that the speed of vehicles, as they turn from Kelvin Road into Canter Court, will be excessive nor does he consider that the sight lines at the intersection of Canter Court and Kelvin Road are inadequate.
Mr White's opinion is that, with appropriate conditions, the Proposed Development is acceptable having regard to its likely effect on traffic flow and safety in the locality.
Planning evidence
Mr Benjamin Laycock
Mr Benjamin Laycock has assessed the Proposed Development against a number of the considerations set out in cl 67 of the deemed provisions.
Mr Laycock outlines that the Proposed Development is not a rural pursuit for the purposes of LPS 6. However, Mr Laycock considers that the fact that the Proposed Development is not for a rural pursuit is not fatal as the proposed use is capable of approval in the General Rural zone.
Mr Laycock considers that the broader locality consists of various rural pursuits, namely the keeping of horses and hobby farms, as well as rural-residential properties. There is also a caravan park and associated lunch bar on Kelvin Road north of Lot 300. Camp Wattle Grove and the Perth Keswick Convention are also located north of Lot 300 on Kelvin Road (within the City of Kalamunda). Mr Laycock also refers to the relatively recent approval of a 'place of worship' on Lot 18 (No 347) which he estimates can accommodate 250 people.
Mr Laycock considers that Canter Court is distinguishable from the broader locality of which Lot 300 forms part due to it being a 'ruralresidential enclave' and the fact that limited traffic currently uses Canter Court.
Mr Laycock does not consider the Wednesday evening classes would be problematic in terms of interactions between vehicles and horses on Canter Court. Mr Laycock is more concerned with the potential interactions between vehicles and horses on Canter Court during the Saturday (daytime) classes.
Mr Laycock is generally satisfied with the appearance of the proposed car park as it is proposed to be treated in a red finish which better integrates with its context. However, Mr Laycock has concerns about the scale of the car park having regard to this context but does acknowledge that the planting of further vegetation on the south-eastern extent of the car park and the south-eastern boundary of Lot 300 will assist in reducing any visual impact from adjoining properties.
In terms of the question of orderly and proper planning, Mr Laycock notes that the City has prepared draft City of Gosnells Local Planning Scheme No. 24 (LPS 24) which proposes to split the land use 'community purpose' into 'community purpose - small' and 'community purpose - large'.
Draft LPS 24, in its current form, proposes that 'community purpose - small' will be an 'X' use in the rural-residential zone and 'club premises' will remain as an 'A' use. Lot 300 is proposed to be zoned 'Rural-Residential'. However, draft LPS 24 has not yet been advertised pursuant to Pt 4 of the LPS Regulations.
In relation to State planning policies, Mr Laycock outlines that SPP 3.7 is relevant. Mr Laycock is satisfied that the BMP satisfies the requirements of SPP 3.7.
On the question of the compatibility of the Proposed Development with its setting, Mr Laycock notes that the Proposed Development seeks to utilise the existing residence on Lot 300 and is therefore consistent with what would be expected in a rural-residential area. However, as stated, Mr Laycock has concerns with the scale of the proposed car park.
In relation to amenity Mr Laycock considers that the Proposed Development will impact on the character of the area having regard to the scale of the car park and the volume of traffic accessing and egressing Lot 300 at particular times.
Mr Laycock considers that visual appearance of the traffic will impact the character of the area. Mr Laycock is also concerned that perceived safety conflict between vehicles and horses may adversely affect the character of the area as horse riders will become fearful or reluctant to use Canter Court.
Mr Laycock does not raise any particular issue in terms of the number of car bays that are proposed to be provided.
On the issue of traffic, Mr Laycock considers that attendance by the applicant's members on the weekends would impact the existing character and amenity of Canter Court.
Mr Laycock notes that there were six submissions which objected to the Proposed Development.
Overall, Mr Laycock considers that the Proposed Development is contrary to the objectives of the General Rural zone in LPS 6 on the basis that it will not retain the rural character and amenity of the locality.
Mr Laycock considers that Canter Court is something of a ruralresidential enclave with existing low levels of vehicular traffic which is used as a thoroughfare for equestrian activities. Mr Laycock is concerned that the Proposed Development will result in traffic increases in Canter Court which is of concern to local residents.
Mr David Maiorana
Mr Maiorana has also reviewed the Proposed Development in the context of cl 67 of the deemed provisions.
Mr Maiorana considers that the Proposed Development is consistent with the objectives of the General Rural zone.
Mr Maiorana considered that the Proposed Development is consistent with the objective of the General Rural zone. He notes that a proposed land use does not need to be a rural pursuit, or incorporate some aspect of a rural pursuit, in order to be approved provided that the rural character and amenity of the area is preserved.
Mr Maiorana notes that the Proposed Development does not include any additional external works to the existing dwelling or outbuildings and therefore the current visual amenity resulting from the built form is unchanged. The ablution facility, which is already situated on Lot 300, is screened from Canter Court.
Mr Maiorana also notes that the use of Lot 300 for the Proposed Development does not limit or exclude rural pursuits from being undertaken on the remainder of Lot 300.
Mr Maiorana has considered the locality in two contexts. He refers to an immediate context which is a radius of 200 metres from the edge of Lot 300 which was the basis for the advertising of the Proposed Development under cl 64 of the deemed provisions.
Beyond the immediate context, Mr Maiorana considers there is a general context which encapsulates a more extensive radius, notionally within 500 metres of Lot 300.
Mr Maiorana considers existing character of the Orange Grove locality in its general context to be characterised by the following:
a)Kelvin Road, which adjoins Lot 300 to the northwest, is a local distributor under the Main Roads WA road hierarchy which carries approximately 5,800 vehicles per day;
b)Rural properties, generally with areas between 1 and 2 hectares, the majority of which appear to have been predominantly cleared with retained vegetation along lot boundaries.
c)Building setbacks vary between 9 and 22 metres; and
d)Various land uses including equestrian and low key agricultural pursuits/hobby farming; caravan and park homes (at the Crystal Brook Caravan Park comprising 165 part-time sites and capacity for over 100 caravans); lunch bar and delicatessen land uses (Crystal Brook Deli & Lunch Bar); a religious campground (Camp Wattle Grove) and the Perth Keswick Convention.
Mr Maiorana notes that the character of the area is not confined to land contained within the City but also includes land within the City of Kalamunda.
On the question of future amenity, Mr Maiorana notes that a place of worship has been approved on Lot 18 Kelvin Road (which is located only two lots to the south-west of Lot 300) and will accommodate up to (he estimates) 400 persons on worship days. He also refers to the potential up-zoning of land in the Orange Grove locality arising from the subregional framework prepared as part of Perth and Peel @ 3.5 million potentially as early as 2022.
As a result as the approved place of worship on Lot 18, Kelvin Road and the sub-regional framework planning, Mr Maiorana considers there must be an expectation that Kelvin Road is likely to increase in traffic volumes once the place of worship is constructed and urban rezonings commence.
Mr Maiorana considers that there will be no impact on the amenity of the locality due to the physical works or the intensity of use of Lot 300 arising from the Proposed Development. Mr Maiorana does not consider that the proposed use of Lot 300 would be overly intensive having regard to the existing amenity of the locality, the number of proposed patrons attending (and associated vehicle movements) and the nature frequency, and duration of the activity being undertaken.
Mr Maiorana does not consider there would be any impact on amenity due to traffic generated by the Proposed Development nor does he consider that noise is an issue.
Ms Nicole Christie
The respondent called Ms Nicole Christie who lives on Canter Court. She has lived on Canter Court for 21 years. As explained, Ms Christie's evidence was received without her having to give oral evidence at the final hearing.
Ms Christie considers that Canter Court is a quiet street where approximately half of the 16 residences own horses. She values the quiet enjoyment of the locality. The horse riders in the locality use both Kelvin Road and Canter Court.
Ms Christie is concerned about the impact that traffic associated with the Proposed Development will have on horses and horse riders in the locality. She considers that additional vehicles using Canter Court would be 'unsafe'.
Analysis and Disposition
Consideration of Issue 1 - the proper classification of the Proposed Development
As explained, during the final hearing the question of the classification of the Proposed Development under LPS 6 was in contest. The City argued that the classification that 'best fit' the Proposed Development was 'club premises'. The applicant argued that the Proposed Development was properly classified as 'community purpose'.
During the Tribunal's deliberations, the Tribunal requested that the parties file submissions on whether the Proposed Development should be classified as either a 'place of worship' or an 'educational establishment'. These uses are also capable of approval in the General Rural zone. The land use definitions under consideration by the Tribunal are defined as follows in Sch 1 to LPS 6:
'club premises' means premises used by a legally constituted club or association or other body of persons united by a common interest[.]
'community purpose' means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organizations involved in activities for community benefit[.]
'educational establishment' means premises used for the purposes of education and includes a school, tertiary institution, business college, academy or other educational centre[.]
'place of worship' means premises used for religious activities such as a church, chapel, mosque, synagogue or temple[.]
The ultimate position of the applicant on the classification of the Proposed Development is that because the applicant's activities are said to be for the purposes of community benefit, the most specific land use that describes the proposed activities is 'community purpose'. Whilst the Proposed Development may fall within the terms of 'club premises', community purpose is the more specific definition. Therefore, perforce of cl 3.4.1 of LPS 6, that is the classification that must apply.
The applicant's alternate position is that if the Proposed Development is not a 'community purpose'; it is an 'educational establishment' on the basis that 'educational establishment' is a more specific land use than 'club premises' or is the next 'best-fit'.
The City's position is that the Proposed Development is a 'club premises' on the basis that it is a 'practical and common-sense best fit'. The City submits that the applicant is a collection of people united by a common interest. The City considers that the activities that a group may support are irrelevant (for the purposes of land use classification) unless those activities take place on the Premises. In this instance, any activities that may be said to be a community benefit take place away from the Premises and are therefore irrelevant.
The classification of the Proposed Development, while a matter in contest, is not crucial to the outcome of the proceedings because all these land uses are capable of approval under LPS 6.
However, the classification of a proposed land use is a critical element of development control and it is therefore necessary that the Tribunal satisfy itself as to the proper classification of a land use. That is so even where the classification of the proposed use is not in contest: Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [30]-[53] (Barker P, Parry SM); Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89 at [57] (Buss P, Murphy JA and Mitchell JA).
Interpretation of planning schemes and the 'best fit' principle
LPS 6 is a 'written law' for the purposes of the Interpretation Act 1984 (WA) (Interpretation Act). By reason of s 18 of the Interpretation Act, a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object.
Section 18 of the Interpretation Act is not directed to a construction which 'will best achieve' the object of the legislation, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the legislation, as against one which would not: Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 at [37] (Banks-Smith J).
Even though LPS 6 has statutory effect and the orthodox rules of construction apply, it is relevant, as matter of legislative context, that planning schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament: Sanders v City of South Perth [2019] WASC 226 at [98][99] (Quinlan CJ) (Sanders).
Planning schemes are to be construed broadly and sensibly, not pedantically: Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
In circumstances where there are competing land use classifications in relation to a proposed development, some Tribunal decisions have adopted what is termed the 'best fit' principle of construction. This canon of construction emerged from the Queensland Planning and Environment Court (QPEC): see for example Yu v Brisbane City Council [2005] QPEC 78; [2006] QPELR 102 at [16] (Rackermann DCJ); Chiefari v Brisbane City Council[2005] QPELR 500 ; [2005] QPEC 9 at [24] (Wilson DCJ); Livingstone Shire Council v Brian Hooper and M3 Architects[2003] QPEC 63; [2004] QPELR 308 at 315 (Robin DCJ).
The 'best fit' approach appears to be a principle that has only been adopted by the QPEC and the Tribunal.
The 'best fit' principle of construction seeks to, quite simply, identify what is considered by, in this instance, the Tribunal to be the 'best fit' where there are two or more competing land use classifications 'which are apt to cover a proposal': see for example APN Outdoor and City of Cockburn [2014] WASAT 32 at [19]; DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104 at [31]; Spartel Pty Ltd and City of Wanneroo [2016] WASAT 110 at [57].
However, we note that the Queensland Court of Appeal has expressed 'considerable doubt' about the 'best fit' principle of construction. In ADD Design Pty Ltd v Brisbane City Council [2012] QCA 44; (2012) 186 LGERA 390 (ADD Design) at Chesterman JA (with whom Phillippides J and Wilson AJA agreed) stated (at [46]) that the 'best fit' approach is a maxim which:
… offends the legal principle applicable to statutory construction pronounced by courts of the highest authority, and facilitates planning appeals be reference to intuitive judgments by those who specialise in that jurisdiction rather than by an objective and logical examination of the words of the statutory instruments in question, according to established legal doctrine.
Since AAD Design, the best fit approach has been abandoned by the QPEC. More recent QPEC authorities adopt the reasoning of AAD Design and emphasise that the ordinary principles and canons of statutory construction should be applied to the classification of land uses: Gerhardt v Brisbane City Council [2017] QCA 285; (2017) 226 LGERA 257 at [31] (Fraser JA, Morrison JA, Flanagan J); Development Watch Inc v Sunshine Coast Regional Council [2018] QPEC 6 at [33] (Long J).
Having regard to the analysis of the Queensland Court of Appeal in AAD Design we consider that the 'best fit' principle should be approached with caution. We agree with the analysis in AAD Design that it is a principle that, in our view, purports to grant a planning authority or review body an omniscience as to how a land use should be best classified.
It is also our view that the 'best fit' approach cannot be easily reconciled with the accepted principles for the objective construction of legislative instruments such as planning schemes. This is because the 'best fit' approach allows us to, in effect, make an intuitive judgment as to what we consider a proposed land use should be best classified as. We are not certain that such an approach to land use classification is sound.
Further, it seems to us that cl 3.4.1 of LPS 6 dictates how the question of construction is to be resolved where a proposed land use falls within more than one possible use class. That is, the more specific land use is to be preferred over the more general.
It follows that we consider that the question of construction is to be answered having regard to the terms of LPS 6 and the orthodox principles that apply to the interpretation of legislative instruments (including planning schemes) as outlined in authorities such as Australian Unity and Sanders. Despite both parties' submissions on the 'best fit' principle, it is not a principle of construction that we will apply.
The nature of the proposed activities
There are two activities that form the basis of the Proposed Development. The first is that the Premises are occupied as a dwelling which is proposed to continue.
The other activities which are proposed, and which are the focus of these proceedings, involve the applicant's lectures or teachings based on the principles of Confucianism, Taoism and Buddhism.
The Proposed Development is not a 'place of worship'
There may be a question as to whether Confucianism, Taoism and Buddhism are faiths or philosophies (or both) but that is not an issue that we can, nor do we need to, resolve for the purpose of land use classification. However, in our view, the relevant activities are in the form of lectures and teachings as opposed to the worship of a particular deity.
It is also the case that an adapted lounge/dining room, which is to be used for lectures and teachings, is not in the same nature as a 'church, chapel, mosque, synagogue or temple' which each fall within the terms of the 'place of worship' definition in LPS 6. A 'church, chapel, mosque, synagogue or temple' is a structure erected and dedicated to the practice of a particular faith. Unlike these other structures, the Premises in question is a residential dwelling and the teachings and lectures are held in an adapted lounge/dining area and involve discussions of multiple faiths/philosophies.
It follows that we do not consider that the Proposed Development should be classified as a 'place of worship'.
The Proposed Development is not an 'educational establishment'
The central element of the proposed activities at the Premises is that members attend classes where the teachings of Confucianism, Taoism and Buddhism will be discussed.
In addition to the lectures, the members may then agree on a range of other activities that may be undertaken in the community which are consistent with these teachings. As set out at [13], these activities include tree planting, festivals, donating blood and raising money for charities.
The word 'education' is not defined in LPS 6 and therefore carries its ordinary dictionary meaning. 'Education' is defined to mean 'systematic instruction' (Australian Oxford Dictionary (2nd Edition), page 399) or 'systematic instruction or training' (Macquarie Concise Dictionary, page 379).
In our view, whilst the lectures and teachings of Confucianism, Taoism and Buddhism have an educational component, the members are not attending the Premises for 'education' in the relevant sense of that word. Rather the members are attending classes for spiritual and emotional nourishment which has an educational component.
The definition of 'educational establishment' in LPS 6 expressly refers to a 'school, tertiary institution, business college, academy or other educational centre'. In our view, the term 'other educational centre' must take its meaning from the context in which it is used. A 'school, tertiary institution, business college and academy' all involve studies towards formal and recognised qualifications. The activities that comprise the Proposed Development, which do not involve formal or recognised studies, cannot be said to be of the same nature.
We do not consider that the Proposed Development is an 'educational establishment' for the purposes of LPS 6.
The Proposed Development is not a 'community purpose'
The gravamen of the applicant's submissions on land use classification is that the members are engaged in activities for 'community benefit' and therefore the Proposed Development is properly classified 'community purpose'.
An identical definition of 'community purpose' to that in LPS 6 has been considered by the Supreme Court in City of Swan v West Shalom Group Inc [2017] WASC 217 (Banks-Smith J) (Shalom 2017). In Shalom 2017, her Honour allowed an appeal by the City of Swan against the Tribunal's decision in West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41; (2016) 88 SR (WA) 361 on the basis that there is no requirement that a community purpose be 'sufficiently local': Shalom 2017 at [88].
In West Australian Shalom Group Inc and City of Swan [2018] WASAT 36; (2018) 94 SR (WA) 276 (Shalom 2018) Judge Parry considered the definition of 'community purpose' in detail.
He noted that the terms 'adapted', 'educational services', 'social services' and 'community benefit' are not defined terms and therefore they each have their ordinary dictionary meaning: at [118].
After a lengthy analysis of the relevant terms (from [119] to [142]), in the context of the applicable facts, Judge Parry found, relevantly at [130], that the term 'community benefit' means:
… anything that is for the good of, or a beneficial outcome for, all the people of a specific locality or country.
Judge Parry's ultimate conclusion in Shalom 2018 was that the Shalom House programme, which treats and restores the lives of men who suffer from life-controlling addictions, most notably arising from the methamphetamine epidemic facing our society, was a 'community purpose' for the purpose of the City of Swan's planning scheme.
The question of 'community benefit', for the purposes of the definition in LPS 6, needs to be approached in a sensible and practical manner and having regard to the town planning purpose of LPS 6.
It is also the case that Judge Parry's analysis in Shalom 2018 needs to be carefully read and understood. Shalom 2018 does not stand for the proposition that every group or association that undertakes some activities that may be said to be of general community benefit is a 'community purpose' for the purposes of land use classification.
If that were the case what may be commonly termed an 'outlaw motorcycle gang' (noting that the High Court considered that term to be 'misleading vernacular' in Vella v Commissioner of Police [2019] HCA 38; (2019) 93 ALJR 1236 at [25] (Kiefel CJ, Bell, Gageler J, Keane J, Nettle J, Gordon J and Edelman J)) may have an argument that its clubhouse is a community purpose use if the club arranges a charity bike ride each year. The point being that questions of fact and degree arise and any proposed land use must be evaluated in an overall sense.
In Shalom 2018 the Tribunal found, in broad terms, that the raison d'être of Shalom House was to restore the lives of men suffering from life controlling addictions. All the various activities and components of the Shalom House programme were geared towards that outcome.
In this instance, there is, in our view, something of a disconnect between the teachings and lectures at the Premises and the activities that are undertaken that are said to be of community benefit. The range of activities undertaken by the applicant are not fixed or settled as was the case in Shalom 2018. Suggested activities or causes are put forward by members during class and then there is a decision as to whether the suggested activity will be supported.
In our view, planting trees, arranging cultural festivals and lobbying for animal rights, while certainly commendable and altruistic, are not for 'community benefit' in the sense contemplated by the definition of community purpose in LPS 6.
The core activities of the Proposed Development are the teachings of Confucianism, Taoism and Buddhism. However, these teachings do not include fixed or focused activities on specific causes that are integral to, or 'part and parcel' of, the land use. The applicant's community activities are broad and variable and may, or may not, have any connection with the teachings in class (but we accept that supported causes must be consistent with the teachings).
The applicant's objects include 'organising charitable functions and deeds' but, again, those functions and deeds are not fixed nor are they geared towards any particular community purpose.
Because the applicant's community activities are, in our view and based on the evidence before us, somewhat divorced or separate from the teachings relating to Confucianism, Taoism and Buddhism, we do not consider that the Proposed Development is a 'community purpose' for the purposes of LPS 6.
The Proposed Development is properly classified as 'club premises'
That leaves the classification of 'club premises'. The applicant accepts that the Proposed Development falls within the terms of 'club premises': ts 3, 23 July 2019. However, the applicant's submissions were that the Proposed Development fell more specifically within the terms of 'community purpose' and because that definition is the more specific, by reason of cl 3.4.1, that is the definition that applies.
For the reasons we have explained, the Proposed Development is not properly classified as 'community purpose'. As we have also explained, we are not satisfied that the Proposed Development is classified as either an 'educational establishment' or a 'place of worship'.
We are satisfied that the Proposed Development involves 'premises [to be] used by a legally constituted club or association or other body of persons united by a common interest'. That 'common interest' is an interest in the teachings of Confucianism, Taoism and Buddhism.
The Proposed Development is therefore properly classified as 'club premises' for the purposes of LPS 6.
Consideration of Issue 2 - whether the Proposed Development complies with the standards and requirements of LPS 6
No submission was put to the Tribunal that the Proposed Development does not, or could not, comply with the relevant requirements of LPS 6.
There was no discussion that the Proposed Development could not comply with the requirements of LPS 6 in relation to setbacks, car parking or any other requirement.
It is also the case that the parties agree that the Proposed Development, subject to conditions, can comply with the requirements of the Government Sewerage Policy as is required by cl 4.11.2 of LPS 6.
Accordingly, we find that the Proposed Development complies, or can comply, with the standards and requirements of LPS 6.
Consideration of Issue 3 - whether the Proposed Development is acceptable having due regard to the relevant matters sets out in cl 67 of the deemed provisions
Having regard to the range of matters set out in cl 67 of the deemed provisions, it is our view that we need to give consideration to the following matters:
a)the aims and provisions of LPS 6 (cl 67(a));
b)orderly and proper planning (cl 67(b));
c)the compatibility of the Proposed Development with its setting (cl 67(m)) and amenity considerations (cl 67(n));
d)access (cl 67(s)) and traffic issues (cl 67(t)); and
e)submissions (cl 67(y)).
The aims and provisions of LPS 6 (cl 67(a) of the deemed provisions)
We consider that the Proposed Development is not contrary to the aims of LPS 6. The fact that the Proposed Development is not a rural activity does not mean it must be refused. LPS 6 makes it clear that a number of non-rural uses can be approved in areas zoned for general rural purposes.
The Proposed Development will not detract from the rural environment or amenity nor will it result in significant adverse outcomes in physical or social terms.
In terms of the relevant provisions of LPS 6, we have addressed these at [29]-[34].
We consider that the Proposed Development is acceptable having due regard to the aims and provisions of LPS 6.
Orderly and proper planning (cl 67(b) of the deemed provisions)
The term 'orderly and proper planning' is a common planning term which, prior to the decision of then Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), had been the subject of little judicial commentary. We gratefully adopt the President's analysis and explanation of the concept of orderly and proper planning set out at [179]-[182] of Marshall.
In our view, while the applicable planning framework for this locality is in a state of flux, there is no relevant planning instrument, or proposed scheme (or amendment) that has the effect that the Proposed Development ought not be approved as a matter of orderly and proper planning.
While the applicant queries the lawfulness of the revisions that the City undertook to the FRS in 2016, that is not an issue that is before us in any formal sense. Our authority is confined to the reviewable decision in question: The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 (Pullin, Newnes and Murphy JJA).
However, that said, the City does not suggest that the WAPC has certified the revisions to the FRS nor does the City suggest that the WAPC's certification is not required. It would therefore appear that the process to formally revise the FRS is not yet complete.
Accordingly, we find that the current iteration of the FRS should only be given limited weight in the circumstances of this case. Whilst Mr Algeri noted (ts 117, 24 July 2019) that the FRS has been given weight in decisions such as Luzny and Western Australian Planning Commission [2006] WASAT 35 at [30] and Adams and Western Australian Planning Commission [2007] WASAT 109 at [41] these authorities predate the commencement of the LPS Regulations in October 2015 which, at Pt 3, sets out the process for preparing and amending local rural strategies such as the FRS.
However, whilst we only give the FRS limited weight in this case, we broadly accept the premise that Lot 300 is in an area where some land use change may be expected in the future.
The sub-regional framework developed under Perth and Peel @ 3.5 million also indicates that there may be future urban development in this locality.
The FRS and Perth and Peel @ 3.5 million are regional planning instruments that are strategic in nature. The purpose of these strategic instruments are to inform how the statutory planning framework should evolve. In most instances, regional strategies and framework plans have little application to individual development applications that arise for determination.
We do not consider that there is any basis on which it may be concluded that the Proposed Development should not be approved as a matter of orderly and proper planning for the purposes of the deemed provisions.
Amenity and compatibility (cl 67(n) and cl 67(m) of the deemed provisions)
We will address the issues of amenity and compatibility together. Amenity is defined in cl 1 of the deemed provisions to mean:
All those factors which combine to form the character of an area and include the present and future amenity.
The impact of the Proposed Development on the amenity of the locality is a central issue in these proceedings. The principles which inform the question of amenity are settled and need not be recited in full. The leading authorities remain Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 and Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Barker J).
These principles have been followed in many Tribunal decisions: The Bethanie Group Inc and Presiding Member of the Metro NorthWest Joint Development Assessment Panel [2018] WASAT 45 at [76]; Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159 (Evangel) at [54]; Urban Resources Pty Ltd and City of Swan [2016] WASAT 81 at [47]-[52]; Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [75]-[78].
It terms of the relevant locality for the purposes of assessing amenity, we do not agree with Mr Laycock that the locality of Canter Court is 'distinguishable' from the broader locality in which it sits by reason of it being a cul-de-sac. We also do not agree with Mr Laycock's oral evidence that the locality is, in effect, a 200 metre radius from Lot 300 that coincides with the consultation area: ts 76, 23 July 2019.
In our view, Lot 300 fronts Kelvin Road and sits as part of the 'broader locality' that is defined by Kelvin Road. The locality extends beyond a 200 metre radius and, consistent with Mr Mairoana's evidence, is elongated by Kelvin Road.
In our view, it is not necessary to determine the limits of the locality with mathematical precision. However, the locality includes Canter Court, especially the section closest to Kelvin Road, the Crystal Brook Caravan Park, the Crystal Brook Lunch Bar & Deli as well as the Perth Keswick Convention and Camp Wattle Grove.
The locality also includes Lot 18 Kelvin Road which has approval for a significant place of worship development for up to at least 250 people on worship days. While Mr Maiorana estimates that the place of worship can accommodate up to 400 people we do not need to resolve that difference of opinion. On any view, a significant place of worship has been approved on Lot 18 which will influence the traffic conditions on Kelvin Road and the locality generally.
In our view, the locality can be said to be Canter Court together with the land that fronts Kelvin Road on each side for approximately 500 metres in both directions from Lot 300.
This locality cannot be described as purely rural in nature. Whilst we accept that there is an equestrian element to the existing character and amenity, there are a range of other rural and non-rural, even commercial, activities that are in close proximity to Lot 300. The locality clearly has an equestrian element.
In that context, we consider that the Proposed Development is largely benign in terms of its amenity impacts. The Proposed Development involves largely activities and minimal physical works are proposed (aside from the proposed car park). The ablution facility and other outbuildings are already in situ.
The Proposed Development is a use that will only operate two days a week (aside from the five weekend events throughout the year) and, even then, the Wednesday classes are in the evenings.
The activities in question, being classes and discussion followed by some social interaction, are not objected to on the basis of noise. As we will discuss below, the level of traffic is also not an issue.
We find the scale and intensity of the Proposed Development would not be inconsistent with, or discordant to, the existing character and amenity.
Having regard to the range of non-rural uses in this area, including the Crystal Brook Caravan Park and the Crystal Brook Lunch Bar & Deli, we do not accept Mr Laycock's evidence that the Proposed Development, in particular the car park, would be incompatible and inconsistent with the visual character of the locality.
Nor do we accept Mr Laycock's concerns about the potential for traffic conflict between vehicles, pedestrians and horses. As we have stated, in our view, the level of traffic that would result from the Proposed Development is not unacceptable in terms of amenity impacts.
We do not agree with Mr Laycock that horse riders would have reasonably held fears in relation to vehicles using Canter Court. We consider that a horse rider must reasonably anticipate that a motor vehicle may choose to use a public road. Furthermore, mere fears and concerns without more, are not a sound basis on which to determine amenity: Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124 at 56; Woolworths Ltd and City of Joondalup [2009] WASAT 41; (2009) 61 SR (WA) 38 at [76].
To the extent that Mr Laycock raised concerns that the traffic generated by the Proposed Development will increase traffic flows on Canter Court by 14% on Wednesdays and 28% on Saturdays would be contrary to the existing character and amenity of the locality, we do not agree.
We consider that traffic on Wednesday will not be an issue given that the classes are in the evening. We also consider that increased vehicle traffic in this area on weekends is to be reasonably expected having regard to the range of rural and non-rural uses in this locality.
There is also nothing in the planned or future amenity of the locality that would suggest that the Proposed Development is an inappropriate use for Lot 300. To this end, we note that the draft LPS 24 is not yet a relevant planning consideration for the purposes of cl 67(b) of the deemed provisions. Nor is draft LPS 24 a 'seriously entertained planning proposal' in the sense outlined in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.
We agree with Mr Maiorana that the Proposed Development is acceptable from an amenity perspective.
We therefore find that the Proposed Development would not be adverse to the amenity of the locality for the purposes of cl 67(n) of the deemed provisions.
We do not consider that the Proposed Development would be inconsistent, or would jar, with the context and setting of Lot 300. This is primarily due to the diverse range of uses in the locality and the fact there are little physical works associated with the Proposed Development. The most prominent physical works aspect will be the car park and we consider that there are adequate measures proposed to ensure that the car park is adequately screened so as not to detract from the amenity of the locality.
We therefore find that the Proposed Development is compatible with its context and setting for the purposes of cl 67(m) of the deemed provisions.
Access and traffic issues (cl 67(s) and cl 67(t) of the deemed provisions)
The Proposed Development will operate twice a week - on Wednesday evenings and Saturdays. There will also be five weekends a year where three-day courses will be run.
In our view, traffic is not an issue on which this matter turns. The nature of the Proposed Development is not at a scale at which traffic is a significant issue.
The evidence of Mr White, which was not controverted or contradicted and which we accept, is that the access and egress arrangements for the Proposed Development are safe and acceptable. The respondent did not call any expert evidence on the question of traffic that would provide a basis on which Mr White's conclusions may be doubted.
We also consider that the Proposed Development does not result in an unacceptable traffic risk. Whilst there may be times that vehicles and horses will both be using Canter Court, it is a low speed environment and vehicles accessing Lot 300 are only on Canter Court for 60 metres. We also note that currently both vehicles and horses use Canter Court although we accept that the Proposed Development will result in an increase in the use of Canter Court on Saturdays.
There is also no question in relation to road capacity. Kelvin Road is a distributor road and the traffic generated by the Proposed Development does not raise questions of road capacity or road design. As we have stated, the Proposed Development will also not be disruptive in a traffic sense - although immediately before and after classes we accept that there will be a notable increase in traffic entering and existing Lot 300 but that traffic is not constant and will dissipate quickly. The Proposed Use is not disruptive in terms of traffic.
Public submissions (cl 67(y) of the deemed provisions)
Mr Laycock's evidence addresses the public submissions that were made in relation to the Proposed Development. Six objections were received by the City including three from outside of the public consultation area.
The central thrust of the objections is that the Proposed Development is inconsistent with the rural character of Canter Court as well as amenity impacts arising from increased traffic movements.
Concerns relating to noise were also raised. However, provided that the outdoor play area was not utilised in the 'night period' and that mechanical services were screened from view, the Proposed Development would comply with the Environmental Protection (Noise) Regulations 1997 (WA).
An objection was also received from the Orange Grove Horse and Pony Club. The submission outlined that members of the club use Canter Court to access the Darling Regional Park bridle trails. The club highlights potential conflict between horses, horse riders and vehicles particularly on Saturdays.
Tribunal's conclusions on Issue 3
In our view, having 'due regard' to the range of planning considerations identified in cl 67 of the deemed provisions, the Proposed Development warrants conditional approval.
The Proposed Development is not inconsistent with the aims and provisions of LPS 6 nor is it contrary to orderly and proper planning. We accept that there are strategic documents which identify this locality as an area that may have closer development potential, however that fact, of itself, does not render the Proposed Development inappropriate as a matter of orderly and proper planning.
The strategic planning framework suggests that this may be an area with urban potential. That being the case, it would reasonably be anticipated that there will be further zoning changes in the locality. Furthermore, draft LPS 24 is not a yet a seriously entertained planning proposal for the purposes of cl 67 of the deemed provisions as it is yet to be advertised.
We find that the locality comprises a range of rural and non-rural uses. We are also mindful that a place of worship (of a significant scale) has been approved on Lot 18 Kelvin Road. In that context, we find that the Proposed Development will not adversely injure or be inconsistent with the existing character and amenity of the locality. We also consider the built form to be compatible with its context and no major physical works are proposed that would render the Proposed Development incompatible with this context.
While we accept that there is an equestrian element to the existing character and amenity of the locality, we do not consider that the planning framework - considered as a whole - prioritises equestrian uses over other uses permissible or capable of approval. In our view, each development proposal needs to be considered on its merits and 'club premises' is a use capable of approval in the General Rural zone.
We consider that traffic and access issues are not of concern. There is no concern that the Proposed Development will result in significant volumes of traffic in a broad sense - but we do accept there will be increased traffic on Canter Court particularly on Saturdays. However, we do not find the volume of anticipated traffic to be unreasonable in terms of raising traffic safety issues or amenity concerns.
We accept that there were objections lodged against the Proposed Development but, having closely analysed the planning issues that arise, we do not consider that these objections are reasonable.
It follows that we do not accept Ms Christie's evidence to the extent that the she suggests the Proposed Development is inappropriate, especially from an amenity perspective, from a land use planning viewpoint.
Overall, having regard to the various matters identified in cl 67 of the deemed provisions, we consider that the Proposed Development warrants conditional approval.
Consideration of Issue 4 - whether the Proposed Development should be approved in the exercise of discretion
In addressing what may be regarded as the ultimate issue, we are mindful that the matters identified in cl 67 of the deemed provisions do not displace the discretion that is to be exercised under LPS 6.
Clause 67 of the deemed provisions only requires that we give 'due regard' to the relevant considerations. In the context of the PD Act 'due regard' has been interpreted to mean that we must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46].
Along with the cl 67 considerations, it is also the case that we are required to give 'due regard' to any 'relevant planning considerations' pursuant to s 241(1) of the PD Act. In Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 (Pullin JA, Buss JA and Martin J) Martin J found that the term 'relevant planning considerations' is a term of broad import: at [121].
In our view, the Proposed Development warrants conditional approval having regard to the cl 67 provisions and the planning framework generally. The cases presented by both the applicant and the respondent were premised on whether approval ought to be granted having regard to the various matters identified in cl 67 of the deemed provisions.
In our view, the Proposed Development is compatible with its context, will not be prejudicial to the existing and planned amenity of the locality and is safe from a traffic viewpoint.
No other relevant planning consideration beyond the cl 67 provisions was identified that would suggest that the Proposed Development should not be approved in the exercise of discretion.
Mr Algeri, agent for the City, referred to the decision of the Tribunal in Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80 (Islamic Dakwar) in his closing submissions: ts 118, 24 July 2019. In Islamic Dakwar the Tribunal refused a proposal for a place of worship, community purpose, residential building and a caretaker's dwelling on Lot 30, Valcan Road in Orange Grove.
However, the facts, circumstances and planning context of Lot 30, Valcan Road compared to the Proposed Development on Lot 300 are very different. For example, Lot 30, Valcan Road was located one-third of the way down a 950 metre cul-de-sac. The scale of the respective proposals is also very different. The proposal in Islamic Dakwar was of a greater scale and far more intensive that the activities associated with the Proposed Development. We find that Islamic Dakwar is of little comparative value and, in any event, is distinguishable.
We therefore find that the Proposed Development should be approved as a 'club premises' subject to the conditions identified in the orders.
Orders
The Tribunal orders:
1.The application is allowed.
2.The respondent's decision made on 26 February 2019 to refuse the application to use a portion of Lot 300 Canter Court, Orange Grove for the purposes of a 'club premises' is set aside and instead the application for development approval is allowed, subject to the following conditions:
1.Prior to occupation or use of the development, vehicle parking, manoeuvring and circulation areas shall be designed, constructed, sealed, drained, line marked and kerbed in accordance with:
(i)the approved plan(s);
(ii)Australian/New Zealand Standard AS/NZS 2890.1:2004, Parking facilities, Part 1: Off-street car parking (for User Class 1A);
(iii)Australian/New Zealand Standard AS/NZS 2890.6:2009, Parking facilities, Part 6: Off-street parking for people with disabilities;
(iv)Australian Standard AS 1428.1-2009, Design for access and mobility, Part 1: General Requirements for access-New building work (by providing a link to the main entrance of the development by a continuous accessible path of travel); and
(v)The City of Gosnells' engineering requirements and design guidelines.
The car parking is to be maintained to the satisfaction of the City of Gosnells for the duration of the development.
2.The applicant is to install signage to inform patrons to be cautious of equestrian activity in the local area, to the satisfaction of the City of Gosnells.
3.Prior to applying for a Building Permit, the applicant shall submit details (in the form of a prescribed Treatment of Sewage application) of an appropriate on site effluent disposal system in accordance with the requirements of the Government Sewerage Policy.
4.Prior to the occupation of the development, the approved on site effluent disposal system must be installed to the satisfaction of the City of Gosnells and maintained thereafter.
5.A Landscape Plan for the development site, generally in accordance with the site plan, is to be submitted and approved to the satisfaction of the City of Gosnells. The following details are to be included:
(i)additional screening trees along Canter Court boundary, to the extent possible;
(ii)existing street trees and vegetation to be retained on the site;
(iii)the location, species, quantity and pot size of the proposed trees and shrubs, and
(iv)areas (if any) which are to be irrigated.
6.The landscaping and irrigation of the development site is to be implemented in accordance with the approved Landscape Plan and thereafter maintained to the satisfaction of the City of Gosnells.
7.Prior to the occupation of the development, a notification must be registered over the Certificate of Title of the subject lot to notify owners and prospective purchasers of the land of the factor affecting the use of the land. The notification is to be prepared and executed at the applicant's cost to the satisfaction of the City of Gosnells and is to state as follows:
'This land is within a bushfire prone area as designated by an Order made by the Fire and Emergency Services Commissioner and is subject to a Bushfire Management Plan. Additional planning and building requirements may apply to development on this land.'
8.Prior to occupation of the building, the Asset Protection Zone (APZ), as depicted in Figure 6 of the Bushfire Management and Evacuation Plan prepared by Bushfire Safety Consulting, dated July 24, 2018 must be installed on the site in accordance with the following requirements:
(i)maximum Fire Fuel Load of 2 tonnes per hectare;
(ii)tree crowns must be a minimum of 10 metres apart, not located within 2 metres of a building or overhanging a building, with no dead material being within the tree crowns or on the boles;
(iii)shrubs must not be located within 2 metres of a building;
(iv)fences and sheds must be constructed of non-combustible material; and
(v)sheds must not contain flammable materials.
The APZ must be maintained in accordance with these requirements and in a good and safe condition for the duration of the development.
9.The development must be designed and all works must be carried out in accordance with the Bushfire Management and Evacuation Plan prepared by Bushfire Safety Consulting and dated July 24 2018 to the satisfaction of the City of Gosnells for the duration of development.
10.The hours of operation and number of visitors are to be as follows:
(i)Wednesdays 7.00 pm to 9.30 pm and Saturdays 10.00 am to 3.00 pm for a maximum of 25 persons and 60 persons respectively.
(ii)A maximum of five three-day philosophy classes annually, held from Friday to Sunday between the hours of 8.00 am and 7.00 pm, for a maximum of 60 persons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
15 JANUARY 2020
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