DiGiovanni and City Of Bayswater

[2012] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DIGIOVANNI and CITY OF BAYSWATER [2012] WASAT 93

MEMBER:   MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD:   30 APRIL 2012

DELIVERED          :   8 MAY 2012

FILE NO/S:   DR 375 of 2011

BETWEEN:   CLINT PAUL DIGIOVANNI

Applicant

AND

CITY OF BAYSWATER
Respondent

Catchwords:

Town planning ­ Development application ­ Refusal of proposed building alteration ­ Non­conforming use right to conduct panel beating and spray painting ­ Purpose of application to improve workplace amenity ­ Planning objectives for Morley City Centre ­ Consideration of precinct development standards ­ Consideration of scale of investment, possible intensification of activity and entrenchment of non­conforming use

Legislation:

Building Act 2011 (WA)
Building Code of Australia
Building Regulations 2012 (WA)
City of Bayswater Town Planning Scheme No 13
City of Bayswater Town Planning Scheme No 23, cl 1.10.2, cl 3.20.2, cl 5.14.3(b)(iv)
Dividing Fences Act 1961 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Health (Asbestos) Regulations 1992 (WA)
Residential Planning Codes of Western Australia
State Administrative Tribunal Act 2004 (WA), s 31(1)
Treatment of Sewage and Disposal of Effluent and Liquid Waste Amendment Regulations (No 2) 1997

Result:

Application for review upheld
Decision of respondent set aside and development conditionally approved

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Mr D Martin

Solicitors:

Applicant:     N/A

Respondent:     City of Bayswater

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This is a review of the respondent's decision to refuse development approval for alterations to a panel beating and spray painting workshop located in an industrial area on land zoned for residential and commercial redevelopment, associated with development of the Morley City Centre.

2. The workshop has a non­conforming use right to continue the conduct of panel beating and spray painting under the auspices of the respondent's planning scheme.

3. The respondent opposed the proposal on grounds that the use is not permitted in the relevant zone, it would not comply with the relevant setback standards and it would entrench the non­conforming use contrary to the interest of pursuing the planning objectives for the area.

4. The applicant submitted that the proposed development, which only involved an increase in height of the workshop to improve working conditions, was a modest investment that did not extend or intensify the existing non­conforming use.

5. The Tribunal was satisfied that the proposal did not offend the development standards relevant to the zone beyond the non­conforming use rights assigned to the existing building.  The proposal was found to be a modest investment for a reasonable amenity purpose.  It did not constitute an intensification of the non­conforming land use, such that it would entrench that use and therefore compromise the planning objectives for the Morley City Centre.

6. The application for review was upheld, and the proposed development application was conditionally approved.

Introduction

1. This is a review of a decision by the City of Bayswater (City, Council or respondent) not to grant approval for proposed alterations to an existing automotive panel beating and spray painting workshop at Unit 1, No 12 (Lot 511) Boag Place, Morley (workshop, land or site).

2. Mr C DiGiovanni (applicant) submitted the original application the subject of this review to the respondent on 5 August 2011.

3. Following consideration, the respondent refused the application on 6 October 2011.

4. The applicant lodged an application for review of the respondent's decision with the Tribunal on 3 November 2011.

5. In the course of mediation under the auspices of the Tribunal, the applicant, on 30 December 2011, submitted modified plans (modified application). Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal invited the respondent to reconsider its decision.

6. Following further consideration, the respondent refused the modified application on 1 February 2012.

The proposed development and its context

1. The panel beating and spray painting workshop is located on a narrow, elongated lot occupied by a row of five separate factory tenancies.  Unit 1 is located at the front of the lot facing Boag Place.  A driveway, extending the full length of the lot, serves as access to the units.

2. Adjacent and other properties along Boag Place appear to be similarly long, narrow lots developed with industrial units.

3. At the rear of the Boag Place lots, there is a transition to residential properties fronting onto Drake Street.

4. The development proposal of 5 August 2011 submitted by the applicant sought to demolish Unit 1, the existing automotive panel beating workshop, and to replace it, on the same building footprint, with a box structure comprising concrete tilt­up panels of 7.5 metres in height, a mezzanine floor and a deck roof.

5. The modified application of 30 December 2011 does not propose complete demolition of the workshop unit.  The existing brick walls will be retained and augmented by steel columns to attain the desired height of 7.5 metres.  The previously proposed mezzanine floor is to be deleted.

6. The purpose of the development proposal, according to the applicant, is to improve the working conditions and amenity of the workshop.

Site view

1. The Tribunal member attended and viewed the workshop premises at Boag Place, Morley in the company of representatives of the applicant and the respondent.

Statutory and policy instruments

1. The locality is classified as 'Morley City Centre zone' under the provisions of City of Bayswater Town Planning Scheme No 23 (TPS 23).

2. Clause 1.10.2 of TPS 23 sets out the objectives of the Scheme, including reference to encouraging the replacement of inappropriate uses and development.

3. The Morley City Centre zone is divided into 12 precincts, each distinguished by the character of land uses permissible in the precinct.

4. The land the subject of this review is located in Precinct 9 (Central).

5. Uses listed as permissible in Precinct 9 are generally residential, community or office in character.  Entertainment, showroom, warehousing, local shop or service industry are discretionarily permissible.

6. 'Automotive panel beating and spray painting' is a use not identified as permissible or discretionarily permissible in Precinct 9.

7. 'Automotive panel beating and spray painting' is not listed in the interpretations schedule of TPS 23.

8. Clause 3.20.2 of TPS 23 sets out the criteria for extension of a non­conforming use or building.

9. Clause 5.14.3(b)(iv) of TPS 23 prescribes that development shall be set back a maximum of 4.5 metres from Boag Place, and otherwise in accordance with the R80 density standard of the Residential Planning Codes of Western Australia.

10. The 'Morley City Master Plan' is described as consistent with the objectives of TPS 23, as it seeks to promote commercial and residential land uses within the city centre.

The respondent's decision

1. The respondent refused the modified application for alterations to the existing panel beating and spray painting workshop situated on the land for the following reasons:

   1.The proposed use is not permitted in the Central City Area ­ Precinct 9 zone.

   2.The proposed extension of the non­conforming use is considered to set an undesirable precedent for the locality.

   3.The proposed extension of the non­conforming use is not consistent with proper and orderly planning of the locality.

   4.The proposed development does not comply with the setback and parking requirements of the City's Town Planning Scheme No 23.

   5.The proposed variations to the scheme setback and parking provisions are not consistent with proper and orderly planning of the locality.

The respondent's argument

1. The respondent argued that the proposal was inconsistent with the objectives and development standards of TPS 23, and the vision for the Morley City Master Plan.

2. Approval of the proposal will entrench the non­conforming use of the land and set an undesirable precedent for the locality.

3. Mr S Burns, a planning officer employed by the respondent, provided evidence on the respondent's behalf.

4. Mr Burns explained that the proposed use was classified as 'automotive panel beating/spray painting', which is a use not permitted in Precinct 9 (Central) under TPS 23.

5. The use was originally approved in 1985 under the City of Bayswater Town Planning Scheme No 13 (TPS 13), at which time the area was zoned for light industry.

6. TPS 23 superseded TPS 13 in 2000, replacing the light industrial zone with the present provisions for Precinct 9, which are designed to encourage a mix of residential and commercial uses associated with development of the Morley City Centre.

7. In the circumstances, a non­conforming use right is extant to continue to conduct automotive panel beating and spray painting on the land.

8. Mr Burns expressed the opinion that the modified application to extend the non­conforming use was still a significant investment that would tend to entrench the ongoing use of the land for industrial purposes, rather than encourage redevelopment in line with the Morley City Master Plan.

9. The proposed development would also not conform with the street setback requirement, which is designed to promote an attractive streetscape for the area.

10. For these reasons, Mr Burns advised the Tribunal that such an extension to the non­conforming use should not be permitted.

11. Questioned as to whether there was any redevelopment in the immediate locality, or whether there were any plans before the Council that would indicate early intentions for redevelopment along the lines encouraged for Precinct 9, Mr Burns advised that he was unable to identify any such instances.

12. No timetable or staging plan was available to assist with expectations for redevelopment.

The applicant's argument

1. The applicant argued that the proposal for alteration to the workshop was solely for the purpose of creating better working conditions for employees.

2. The elevation of the ceiling of the workshop will enable better air circulation and permit the installation of an airconditioner to keep working conditions cool in summer.

3. There will be no increase at all in the working area to suggest that the proposal is an extension of the non­conforming use.

4. The estimated cost of the proposed works associated with the modified application is between $50,000 and $70,000.  This does not amount to a major capital investment and, therefore, is not an entrenchment of the workshop use that will impede the respondent's plans for redevelopment of the area.

5. The applicant supports the respondent's plans for the Morley City Centre, and sees no inhibition to cooperation with redevelopment when the time arises.

Draft conditions of approval

1. Draft conditions of approval were prepared and tendered to the Tribunal and the applicant by the respondent.

2. The applicant made no submission in respect of the proposed conditions.

Analysis

1. The question to be examined is whether the proposed development complies reasonably with the criteria set out at cl 3.20.2 of TPS 23 for alteration of a building associated with a non­conforming use, and, in particular, whether the proposed development would compromise the planning objectives of the area.

2. In this regard, it is apparent that the proposal does not represent any changes to the existing physical footprint of the building, or extension or intensification of the non­conforming use activities on the land.

3. There is no alteration of the building to reasonably bring into play relevant development control elements of Precinct 9, such as street setback and car parking requirements.  Indeed, pursuit of any change of street setback associated with this development at this time would contrast starkly with the consistently prevailing setback of the remaining non­conforming industrial premises along Boag Place.

4. Other than a modest increase in height of the building, the proposal does not present any challenge to the development control provisions and standards of TPS 23 that do not exist by virtue of the present non­conforming buildings and land use of the area.

5. The Tribunal notes the respondent's argument that the proposed development would constitute a substantial investment that would entrench the existing non­conforming use and, therefore, compromise the objectives of Precinct 9.

6. Against this assertion, the applicant has described a modest building alteration, for what appears to be the reasonable purpose of improving workplace amenity, at a cost estimated as being between $50,000 and $70,000.

7. In the context of the development potential and the value of the property for mixed residential and commercial use, the Tribunal is inclined to the view that the relatively minor investment cost is not so high as to cause any inhibition to redevelopment, when market conditions generally encourage desired change in the area.  In this regard, it is noted that there is no evidence of any imminent redevelopment of the area, and it could be assumed that such change is still some years off.

8. The proposed development is not an intensification of activity and would therefore not appear to significantly entrench the existing non­conforming use or stand in the way of achieving the respondent's planning objectives for the area.

9. In summary, the Tribunal finds that there is no compelling argument that the proposal materially offends relevant Precinct development standards, or represents a compromise of the respondent's planning objectives.  For these reasons, the proposal should not be considered to be contrary to the interests of orderly and proper planning of the area.

Conclusion

1. Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the modified application for alterations to the existing panel beating and spray painting workshop at Unit 1, No 12  (Lot 511) Boag Place, Morley should be upheld.  Accordingly, the respondent's decision should be set aside and the modified application should be conditionally allowed.

Order

1.The application for review is allowed.

2.The decision of the respondent made on 1 February 2012 to refuse development approval for alterations of Unit 1 No 12 (Lot 511) Boag Place, Morley is set aside, and a decision is substituted that development approval is granted subject to the following conditions:

a)The development/use the subject of this approval must be substantially commenced within a period of two years of the date of this approval notice.  If the development is not substantially commenced within this period, this approval shall lapse and be of no further effect.  Where an approval has lapsed, no development/use shall be carried out without the further approval of the City of Bayswater having first been sought and obtained.

b)The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan.

c)The approved parapet/boundary wall and footings abutting the north­western lot boundary must be constructed wholly within the subject allotment.  The external surface of the parapet/boundary wall shall be finished to a professional standard, to the satisfaction of the City of Bayswater.

d)The vehicle parking area is to be resealed, kerbed, drained and line marked in accordance with the approved plans and specification and shall be thereafter maintained to the satisfaction of the City of Bayswater.

e)On completion of construction, all excess articles, equipment, rubbish and materials shall be removed from the site and the site left in an orderly and tidy condition.

f)This approval does not authorise any interference with dividing fences, nor entry onto neighbouring land.  Accordingly, should the applicant wish to remove or replace any portion of a dividing fence, or enter onto neighbouring land, the applicant must first come to a satisfactory arrangement with the adjoining property owner: refer to Dividing Fences Act 1961 (WA).

g)The development is to comply with any details marked in red on the approved plans.

h)Where a permit is required under the provisions of the Building Act 2011 (WA) and Building Regulations 2012 (WA), all relevant approvals and/or requirements are to be satisfied prior to the lodgement of a building permit with the permit authority, otherwise prior to the commencement of any building works on site.

i)All stormwater and drainage runoff produced on site is to be disposed of on site via the use of soakwells.  The size of the soakwells are to be calculated by use of the formula Vol (cubic metres) = Area (square metres) x 0.0125, where Vol is total storage volume of soakwells and Area is total roofed and paved areas.  Connection to the City of Bayswater's stormwater system, where available, may be permitted as an overflow only if to the satisfaction of the City of Bayswater.

j)Asbestos products are to be handled and disposed of in accordance with the Health (Asbestos) Regulations 1992 (WA); Australian Standard (AS) 2601 ­ 1991 'Demolition of Structures' and NOHSC 3002 (1988) 'Guide to the Control of Asbestos Hazards in Buildings and Structures'.

k)The applicant is to make arrangements to the satisfaction of the Water Corporation for the provision of reticulated sewage to all lots/units within the subdivision/development.

l)Any onsite signage is to be installed in accordance with the City of Bayswater's signage policy to the satisfaction of the City of Bayswater.

m)Provision must be made for access and facilities for use by people with disabilities in accordance with the Building Code of Australia and AS 1428.1.

n)The noise generated by construction or operational activities is not to exceed the levels prescribed under the Environmental Protection (Noise) Regulations 1997 (WA).

o)The existing septic system is to be decommissioned to the satisfaction of the Manager Environmental Health and in accordance with the Treatment of Sewage and Disposal of Effluent and Liquid Waste Amendment Regulations (No 2) 1997.

p)Compliance with the City of Bayswater Health Local Laws.

q)No storage of materials is to be permitted outside of the buildings or the approved bin store areas.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J ADDERLEY, SENIOR SESSIONAL MEMBER