Driscoll and Shire Of Augusta-Margaret River

Case •

[2008] WASAT 219

•

19 SEPTEMBER 2008

No judgment structure available for this case.

DRISCOLL and SHIRE OF AUGUSTA-MARGARET RIVER [2008] WASAT 219



STATE ADMINISTRATIVE TRIBUNALCitation No:[2008] WASAT 219
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:59/2008DETERMINED ON THE DOCUMENTS
SITE VIEWING ON 24 JULY 2008
Coram:MR R EASTON (SENIOR SESSIONAL MEMBER)19/09/08
34Judgment Part:1 of 1
Result: Application for review allowed
Development approval granted subject to conditions with two of the draft conditions varied
B
PDF Version
Parties:SERENA DRISCOLL
SHIRE OF AUGUSTA-MARGARET RIVER

Catchwords:
Town planning
Development application
Day care centre
Child care centre
Variation to development standards
Traffic
Noise
Compliance with noise regulations
Parking
Neighbours' objections
Amenity
Social impact
Social cohesion
Dispute on conditions of approval
Development bond

Legislation:
Building Code of Australia 2004 (WA)
Building Regulations 1989 (WA), reg (20)(4), reg 22, reg 23, reg 31
Children and Community Service (Child Care) Regulations 2006 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Health (Food Hygiene) Regulations 1993 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA)
Shire of Augusta-Margaret River Health Local Laws 1999 (WA)
Shire of Augusta­Margaret River Town Planning Scheme No 11, Table 1, cl 1.7, cl 2.4, cl 4.4.6
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA)
Town Planning Regulations 1967 (WA), Appendix B, Sch 1

Case References:
Allen and Shire of Augusta­Margaret River [2007] WASAT 103
Dalla Riva (Australia) Pty Ltd  v Town of Vincent [2004] WATPAT 4
Hope and City of Joondalup [2007] WASAT 8
Ienco and City of Melville [2007] WASAT 56
Jones v Boroondara CC [2006] VCAT 1833
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Litis & Anor and Shire of Kalamunda [2006] WASAT 130
Mathews v Glen Eira CC [2002] VCAT 1388
Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Victory Investment Group v Whitehorse CC [2005] VCAT 1863

Orders
The Tribunal makes the following orders:,1. The application for review is allowed.,2. The decision of the respondent made on 16 January 2008 to refuse development approval for a day care centre at No 5 (Lot 101) Waverley Road, Cowaramup is set aside and a decision is substituted that development approval is granted subject to the following conditions: ,(i) Development shall be in accordance with the plan entitled Project No P06001 SK03, dated 11 July 2007 and received by the Shire of Augusta­Margaret River on 3 September 2007.,(ii) If the development, the subject of this approval, is not substantially commenced within three years from the date of this letter, the approval shall lapse and be of no further effect. Where an approval has lapsed, development is prohibited without further approval being obtained.,(iii) A building licence must be issued by the building surveyor before any work commences on site as per the Building Regulations 1989 (WA). ,(iv) The building shall not be occupied until a certificate of classification has been issued by the Shire of Augusta­Margaret River's building surveyor. A person who uses or occupies, or permits the use or occupation, of a building without a certificate of classification is in contravention of Building Regulations 1989 (WA), reg 20(4) or reg 22, and is guilty of an offence under reg 23.,(v) Prior to the removal of any structure, a demolition licence shall be obtained from the building surveyor pursuant to the Building Regulations 1989 (WA), reg 31.,(vi) A master landscape plan shall be prepared to the satisfaction of the Shire of Augusta­Margaret River and submitted to the Shire of Augusta­Margaret River by a suitably qualified and/or experienced landscape consultant and approved prior to the issue of a building licence for the development. The landscape plan shall be drawn to a scale of 1:100 and show the following:,(a) The location, including recommendations of the Cape to Cape LandCare Companion name and mature heights of existing and proposed trees and shrubs, ground covers;,(b) Any lawns and paved areas to be established;,(c) Any natural landscaped areas to be retained;,(d) Those areas that are to be reticulated or irrigated are demonstrated to be designed using water sensitive principles, to the satisfaction of the Shire of Augusta­Margaret River; and,(e) Specific details of proposed fencing.,(vii) Landscaping works shall be established prior to occupation/use of the development.,(viii) The use shall operate only between the hours of 7 am and 6 pm between Monday and Friday, and not at all on Saturday and Sunday.,(ix) The use shall not accommodate more than 20 children at any one time.,(x) The outdoor play areas and northern and western boundaries adjacent to the seven parking spaces identified at the rear (north) of the proposed day care facility shall be screened with noise attenuation fencing that comprise a solid wall, free of gaps, of a minimum height of 1,800 millimetres and a surface material having a mass of at least 10kg (per square metre) (for example, brick, limestone, concrete etc). Should no agreement be able to be reached with adjoining land owners, this fencing shall be set back inside the property boundary adjacent to existing fencing. This noise attenuation fencing shall not extend further toward Waverley Road than the proposed day care centre and not less than the southern extent of the seven parking spaces in the rear (north) of the site.,(xi) Operation of the day care centre shall be generally in accordance with the schedule of operation provided by the applicant on 4 December 2007.,(xii) Ten on­site car parking bays shall be provided at a location to the satisfaction of the Shire of Augusta­Margaret River, in addition to two short stay drop­off bays located adjacent to the front (south) of the day care centre.,(xiii) The proposed kerbside car parking and drop­off zone shall be deleted from the plans submitted for the purposes of an application for a building licence and does not form a component of this approval.,(xiv) Vehicle parking areas and access ways and crossover(s) shall be designed, constructed, sealed, kerbed, drained, line marked and thereafter maintained in accordance with Australian Standard AS 2890.1­1993 and Shire of Augusta­Margaret River's standards and specifications, prior to occupation of the development.,(xv) One parking bay for the disabled with a minimum width of 3.2 metres, and statutory sign located convenient to the building entrance shall be provided to the satisfaction of the Shire of Augusta­Margaret River.,(xvi) The north/south aligned car bays adjacent to the day care centre shall be marked as for use by staff only.,(xvii) All loading and unloading shall take place within the boundaries of the premises.,(xviii) The proponent is required to submit a car park design for approval by Infrastructure Services showing construction details of pavement levels, thickness, crossfall, pedestrian access arrangements, drainage connections, if any, into the Shire's stormwater system and drainage pipe inverts, prior to the issue of a building licence.,(xix) The vehicle crossovers shall be constructed to minimum standard 2 coat bitumen seal and designed and constructed in accordance with the Shire of Augusta-Margaret River crossover standards and specifications, prior to the occupation of the development.,(xx) Access and egress to the site shall be by means of a one­way system only.,(xxi) Works are prohibited within the road reserve, including any pruning or clearing of vegetation without prior written approval of the Shire of Augusta­Margaret River.,(xxii) Prior to issue of building licence, the proponent to pay a development bond of $4,000 as per PE.51 Development Bonds Policy.,(xxiii) Prior to issue of a building licence, the proponent shall provide a stormwater management plan incorporating water sensitive urban design principles to ensure that stormwater and drainage runoff from the property does not exceed pre­development flows. The plan shall include an analysis of soil porosity and strategy for impervious area rainfall collection, filtered to remove contaminants and either recycled on site or drained in a controlled manner to a safe outlet point.,(xxiv) The proponent shall implement all measures necessary to prevent erosion, or airborne or waterborne transmission of soil and sediment from the development and tracking of soil by vehicle tyres onto the road during and after construction. Details of the methods to be employed to control the erosion or transmission of soil and sediment offsite during and subsequent to construction to be submitted for approval prior to the issue of a building licence.,(xxv) An apparatus for the on­site treatment and disposal of waster water shall be installed to the satisfaction of the Shire of Augusta­Margaret River and the Department of Health, prior to occupation of the building. An Application to Install Apparatus for Treatment of Sewage shall be submitted with the application for building licence.,(xxvi) A structure, paving or surface treatment shall not be located over a leach drain used as a receptacle for drainage or for the treatment and disposal of sewerage. Leach drains shall not be located within 1.8 metres from the foundations of any building or boundary. Septic tanks shall not be located within 1.2 metres from the foundation of any building or boundary.,(xxvii) Noise emissions resulting from development/use of premises for the approved purpose shall not exceed the assigned levels in the Environmental Protection (Noise) Regulations 1997 (WA), and shall not unreasonably interfere with the health, welfare, convenience, comfort or amenity of an occupier of any other premises.,(xxviii) Where in the opinion of the Shire of Augusta­Margaret River the emission of noise, vibration, odour, fumes, smoke, vapour, steam, soot, ash or dust from the approval use 'day care centre' is considered to cause danger or nuisance to occupants in the building, occupants of neighbouring buildings or members of the public, the person licensed to operate the approval use 'day care centre' shall liaise with any affected person and undertake reasonable action to abate the cause of the danger or nuisance.,(xxix) Lighting for security, recreation or display shall be internally directed and/or shielded so that light overspill does not unreasonably affect the amenity of adjoining properties.,(xxx) Sanitary conveniences shall be provided in accordance with the applicable requirements of the Health (Food Hygiene) Regulations 1993 (WA); Building Code of Australia 2004 (WA); and Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA).,(xxxi) Food preparation, storage and processing areas shall comply with the requirements of the Shire of Augusta­Margaret River Health Local Laws 1999 (WA), Health (Food Hygiene) Regulations 1993 (WA).,(xxxii) The development shall be connected to the Water Corporation's reticulated water supply to the satisfaction of the Shire of Augusta­Margaret River and the Water Corporation, prior to occupation of the development.,(xxxiii) Where a street tree requires removal and/or pruning for this development, a separate application shall be made to the Shire of Augusta­Margaret River in line with the Street Tree Removal and Consultation Policies.,(xxxiv) Signage for the development/use may be erected on the site pursuant to this planning approval providing:,(a) it complies with any town planning scheme or policy requirements;,(b) a sign licence has been issued by the Shire of Augusta­Margaret River; and,(d) it complies with Policy PE 46, Control of Signs and Advertising Devices.,3. The parties may, by agreement, reduce the total number of car parking bays provided the reduction occurs in the rear car park.

Summary
This matter involved an application for review of the refusal of a development application for a day care centre (child care centre) at No 5 (Lot 101) Waverley Road, Cowaramup.,The proposal was a modified version of a proposal considered by the Tribunal in Allen and Shire of Augusta­Margaret River [2007] WASAT 103.,The issues in this review were whether the proposed development was acceptable having regard to development standards, traffic, noise and amenity.,The matter was determined on the papers, and the evidence available to the Tribunal included evidence from a traffic expert, a noise expert, planners for both parties and strong objections from some neighbours.,The Tribunal was satisfied that the proposal was acceptable having regard to development standards, noise and traffic issues. The Tribunal was not satisfied that the impact on amenity was as extensive, intrusive or as unacceptable as the local residents had submitted. On balance, the Tribunal found the proposal was acceptable having regard to amenity.,There was some disagreement between the parties on three of the proposed draft conditions. The Tribunal varied two of the conditions and retained the third.,The Tribunal determined that planning approval be granted to the proposed day care centre.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DRISCOLL and SHIRE OF AUGUSTA-MARGARET RIVER [2008] WASAT 219 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS
    SITE VIEWING ON 24 JULY 2008
DELIVERED : 19 SEPTEMBER 2008 FILE NO/S : DR 59 of 2008 BETWEEN : SERENA DRISCOLL
    Applicant

    AND

    SHIRE OF AUGUSTA-MARGARET RIVER
    Respondent

Catchwords:

Town planning - Development application - Day care centre - Child care centre - Variation to development standards - Traffic - Noise - Compliance with noise regulations - Parking - Neighbours' objections - Amenity - Social impact - Social cohesion - Dispute on conditions of approval - Development bond

Legislation:

Building Code of Australia 2004 (WA)


Building Regulations 1989 (WA), reg (20)(4), reg 22, reg 23, reg 31
Children and Community Service (Child Care) Regulations 2006 (WA)

(Page 2)

Environmental Protection (Noise) Regulations 1997 (WA)
Health (Food Hygiene) Regulations 1993 (WA)
Planning and Development Act 2005 (WA), s 252(1)
Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA)
Shire of Augusta-Margaret River Health Local Laws 1999 (WA)
Shire of Augusta­Margaret River Town Planning Scheme No 11, Table 1, cl 1.7, cl 2.4, cl 4.4.6
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA)
Town Planning Regulations 1967 (WA), Appendix B, Sch 1

Result:

Application for review allowed


Development approval granted subject to conditions with two of the draft conditions varied

Category: B


Representation:

Counsel:


    Applicant : Mr M Swift (Acting as Agent)
    Respondent : Ms C Gleeson (Acting as Agent)

Solicitors:

    Applicant : Michael Swift & Associates (Town Planners)
    Respondent : Shire of Augusta­Margaret River



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

Allen and Shire of Augusta­Margaret River [2007] WASAT 103
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Hope and City of Joondalup [2007] WASAT 8
Ienco and City of Melville [2007] WASAT 56
Jones v Boroondara CC [2006] VCAT 1833
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Litis & Anor and Shire of Kalamunda [2006] WASAT 130

(Page 3)

Mathews v Glen Eira CC [2002] VCAT 1388
Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Victory Investment Group v Whitehorse CC [2005] VCAT 1863


(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This matter involved an application for review of the refusal of a development application for a day care centre (child care centre) at No 5 (Lot 101) Waverley Road, Cowaramup.

2 The proposal was a modified version of a proposal considered by the Tribunal in Allen and Shire of Augusta­Margaret River [2007] WASAT 103.

3 The issues in this review were whether the proposed development was acceptable having regard to development standards, traffic, noise and amenity.

4 The matter was determined on the papers, and the evidence available to the Tribunal included evidence from a traffic expert, a noise expert, planners for both parties and strong objections from some neighbours.

5 The Tribunal was satisfied that the proposal was acceptable having regard to development standards, noise and traffic issues. The Tribunal was not satisfied that the impact on amenity was as extensive, intrusive or as unacceptable as the local residents had submitted. On balance, the Tribunal found the proposal was acceptable having regard to amenity.

6 There was some disagreement between the parties on three of the proposed draft conditions. The Tribunal varied two of the conditions and retained the third.

7 The Tribunal determined that planning approval be granted to the proposed day care centre.




Introduction

8 These proceedings involve an application brought by Serena Driscoll (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Augusta­Margaret River (Shire or Council) made on 16 January 2008 to refuse development approval for a day care centre at No 5 (Lot 101) Waverley Road, Cowaramup.

9 The proposal is similar to a proposal refused by the respondent on 14 June 2006 on the same site. Both applications involved additions and alterations to an existing residence to create a child care centre.

(Page 5)



10 A child care centre is defined in the Shire of Augusta­Margaret RiverTown Planning Scheme No 11 ­ District Zoning Scheme 1985 (TPS 11) as a day care centre. The term 'day care centre' will be used to describe the proposal in these reasons unless the term child care centre is used in quotes or for context.

11 The original proposal in 2006 provided for 20 children with three staff members and one supervisor. The proposal included a drop­off/pick­up area to accommodate two vehicles which could enter and leave the site in forward gear, two staff parking spaces and six additional parking bays.

12 The applicant (then called Serena Allen) lodged an application for review with the Tribunal. After some minor modifications the Tribunal, acting under the provisions of s 31 of the State Administrative Tribunal Act 2004 (WA) invited the respondent to reconsider its decision.

13 On 29 November 2006, the respondent reaffirmed its decision.

14 The Tribunal then proceeded to review the decision and dismissed the application for review in Allen and Shire of Augusta­Margaret River [2007] WASAT 103 (Allen and Shire of Augusta­Margaret River).

15 The Tribunal concluded at [89] of Allen and Shire of Augusta­Margaret River that it was 'unable to support the rationale behind a number of the reasons for refusal of the original development application by the respondent, but, in the absence of certain information specified in this review, it is also unable to conclude that the proposed development would be in the interests of orderly and proper planning, or that the amenity of the locality would not be compromised.'

16 The information required by the Tribunal in Allen and Shire of Augusta­Margaret River was described as information on traffic at [81] and noise at [86].

17 At [81] the Tribunal concluded:


    Firstly, there is no TIA (Traffic Impact Assessment) for the Tribunal to consider even though, as pointed out in [58] above, it is highly unlikely that a small centre with arrivals and departures spread over, say, one to two hours that there would be traffic problems in Waverly [sic] Road. However, the information is still required to allow a proper assessment to be made.

18 At [86] the Tribunal also concluded with reference to noise that:
(Page 6)
    What is required, is more information in order to more accurately assess the proposal in terms of the likely breakdown of the number of children into the various age groupings (with the older children making the most noise), the number of hours set aside for outdoor play, the likely number of 'door closing events', and the ways and means by which noise may be minimised. …

19 The revised proposal, subject of this review, includes information on traffic and noise.


Site and locality

20 The site is described as No 5 (Lot 101) Waverley Road, Cowaramup (site or subject land). It has an area of 1,320 square metres. It is a polygon of four sides with a street frontage of 22.12 metres and a rear boundary of 30.39 metres. The east side boundary is 50.29 metres long with a right angle join to the front and rear boundaries, while the west boundary is at an angle with a length of 50.97 metres. There is a small fall of approximately 500 millimetres from the front to the rear of the site.

21 The site currently accommodates an existing dwelling which is proposed to be modified and extended to form the day care centre. The adjoining properties are all residential lots.

22 The site is separated from Bussell Highway by two lots. The adjoining lot to the west is a residence. The next lot (an existing transport depot) is on the corner of Bussell Highway and Waverley Road. Adjoining the transport depot in Bussell Highway is a new medical centre.

23 Opposite the subject land is a reserve. Adjoining the reserve, further to the east along Waverley Street is a primary school. The Tribunal had a viewing of the site in the company of the parties on 24 July 2008.




Planning framework

24 The subject land is zoned 'residential' under TPS 11. Under Table 1 of TPS 11 a 'day care centre' is an 'SA' use in the residential zone; that is a use that Council may, at its discretion, permit after the proposal has been advertised. Relevant clauses of TPS 11 are described later in these reasons.

25 In addition to TPS 11, two relevant planning documents are the Interim Development Order No 16 (IDO 16), a Cowaramup Village Strategy 2005 (CVS) and the Western Australian Planning Commission (WAPC) Planning Bulletin No 72 ­ child care centres (PB 72). Relevant clauses of these planning documents are described later in these reasons. The Tribunal notes that although PB 72 is still in draft form, it has previously found that PB 72 should


(Page 7)
    be given some weight. (See, for example, Litis & Anor and Shire of Kalamunda [2006] WASAT 130)




Proposed development

26 The proposed development involves alterations and additions to an existing dwelling to provide accommodation for a day care centre for 20 children and five staff. An indicative analysis of child numbers proposed that up to six children would be three ­ five­year­olds with the majority (14+) being zero ­ three­year­olds. An indicative schedule of activities proposed two outdoor play times of 9.45 am - 11.00 am and 3.15 pm - 5.00 pm.

27 The proposal includes a total of 12 on­site parking bays with two of the bays being short­stay bays and another two being shown as staff bays. The parking is generally to the west side of the site and extends to the rear.

28 The proposal includes an external play area of 216 square metres. This external play area adjoins the eastern side boundary fence and is setback approximately 8 metres from the rear (north) fence and 12 metres from the western side fence. The site plan shows the external play area is enclosed by a 1.8 metre high fence to acoustic standards on the north and eastern sides.




Council's decision

29 The Council advertised the development application and received 33 submissions, with four objecting to the proposal and the balance supporting the proposal.

30 The Council engaged external planning consultants to assess the proposal; the findings of the assessment were incorporated into the officers' report to Council dated 16 January 2008, which recommended that the proposal be approved subject to various conditions.

31 The Council, at its meeting on 16 January 2008, refused the proposal for the following three reasons, stated as follows:


    (1) The location of the car parking area to the rear of the development is contrary to the design recommendations contained in WAPC PB 72 where car parking areas are preferred to be located at the front of the premises to improve accessibility and safety of patrons.

(Page 8)
    (2) Lot 101 Waverley Road is below the minimum lot size required under TPS 11 being 1,320 (square metres) in lieu of 2,000 (square metres).

    (3) The locality of the child minding centre will impact on the residential amenity of the locality due to its location and undersized lot area and is therefore contrary to orderly and proper planning of the locality.





The issues

32 The respondent presented the following two issues for determination in this review: Whether the proposal should be approved having regard to:


    1. The loss of amenity for adjoining residential land owners caused in particular by noise impact, insufficient lot size and the fact that the design of the proposed development has been constrained by the existing development on the subject land; and

    2. Unacceptable social impact on adjoining Lot 102 Waverley Road, Cowaramup which is already directly adjacent to commercial land use on its western side.


33 After reviewing the papers, the Tribunal found that 'social impact' was not well developed as a separate issue in the evidence and that in any event it was best dealt with as a component of amenity. The Tribunal decided amenity was best dealt with as a final issue, considering the total combined effect of the other issues described in the evidence.

34 The following four issues arise for determination in this review:


    1) Whether the proposed development is acceptable having regard to development standards;

    2) Whether the proposed development is acceptable having regard to traffic;

    3) Whether the proposed development is acceptable having regard to noise; and

    4) Whether the proposed development is acceptable having regard to amenity.


(Page 9)



35 The Tribunal will address each issue in turn.


Whether the proposed development is acceptable having regard to development standards?

36 In the respondent’s Statement of Facts and Contentions it was stated that the proposal does not meet eight of the nine listed development standards described in Table 1 of TPS 11 for a day care centre. The failed standards were described as:


    a) Lot area of 1320 (square metres) instead of the (required) 2000 (square metres);

    b) Minimum effective frontage of 22.12m instead of the 25m;

    c) Site coverage greater than 20%;

    d) A plot ratio greater than 0.3%;

    eI) A front setback of 4.1m to the proposed drop off bays rather than the 10m;

    eII) a rear setback of 0m rather than the 20m;

    eIII) and side setbacks 2m on (the) west and nil on the east rather than 3m;

    f) (parking requirements and not listed as non complying); and

    g) landscaping less than 10% of the site area.


37 Clause 4.4.6 of TPS 11 enables Council to approve a proposal that does not comply with development standards but only if the Council is satisfied that:

    a) approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;

    b) the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and

    c) the spirit and purpose of the requirement or standard will not be unreasonably departed from thereby.


38 The above list of variations of development standards is inconsistent with the planners’ report to Council and the evidence of Mr Simon Bain, an expert planner appointed by the respondent to give planning evidence on their behalf.
(Page 10)
    The planners’ report to Council lists the variations as:

      a lot size of 1320 (square metres) instead of the 2000 (square metres) required by TPS11;

      a frontage of 22.12m instead of the 25m required by TPS11;

      a front setback of 7.7m rather than the 10m required by TPS11; and

      a rear setback of 18.8m rather than the 20m required by TPS11 [sic].

39 Mr Bain’s evidence agrees with the above list of four items of non­compliance. This list of four items of non­compliance is consistent with the balance of the evidence and the Tribunal will use this evidence rather than the list in the Statement of Facts and Contentions which contains ambitiously negative assessments such as setback measurements which appear to be taken from car parking bays and/or fences.

40 Mr Bain argues that the impact of failing to meet the development standards is that the site is too small and consequently the development is closer to neighbours and the car parking cannot be accommodated in the front setback area. He also argued that the use of an existing structure on site constrains the design flexibility.

41 Mr Bain then argued that the discretion available in cl 4.4.6 of TPS 11 cannot be used because the proposal does not meet all of the criteria required for exemption.


    The narrower and smaller site will specifically impact on the suitability of the site as a child care centre. The site is severely constrained due to it being significantly smaller and narrower. This means car parking areas, play areas and the centre itself cannot be spread out.

42 However, the planners’ report to Council differed in the assessment of the impact of failing to meet development standards.

    … A general intent of these development standards is obvious in that generally larger lots are preferred for the land use, and that the development should reasonably be setback from adjacent residential land. In this instance the development has only minor variations to front and rear setback requirements and these minor variations are relevant to the size of the proposal in relation to the Site, consistent with the intent to provide separation about the proposal and acceptable with regard to the qualification of clause 4.4.6. Setbacks exceed those typically applied to residential development at the residential density prescribed for the Site.

(Page 11)



43 Although the planners' report to Council is inconsistent with the decision of the Council and the opinion of Mr Bain, the Tribunal will give some weight to the opinions expressed in the planners' report. This is consistent with the findings of the Town Planning Appeal Tribunal of Western Australia where, in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, the Tribunal found at [36]:

    [t]o the extent to which there is discretion and therefore an element of judgment, the views expressed on such matters by qualified town planners are of assistance to the Tribunal.

44 Mr Michael Swift, an expert planner appointed by the applicant to give planning evidence on her behalf, extends the principle of the argument contained in the planners’ report as it relates to the size of the site. Further, Mr Swift noted 'Day Care Centres, irrespective of the size of the lot on which they are situated, most often cater for many more than the 20 children proposed under this application.' The principle of a direct relationship between the size of a site and the number of children in a day care centre was not challenged by the respondent.

45 Mr Swift presented the following argument concerning the size of the site.


    The Children and Community Services (Child Care) Regulations 2006 (Child Care Regulations) prescribe minimum 'Play areas on place' and similar standards for centres. It is these standards that determine the number of children permitted to occupy any given site, and consequently effectively allow more children to be accommodated on larger sites.

    The proposal has been proportioned to suit the size of the (s)ite … Given that the licensing requirements that apply such proportions automatically scale facilities to match available site area then it is also automatic that the number of children, associated vehicle movements, noise, extent of paved area, offsite impacts and general level of activity etc. are reduced and proportionate to the site.


46 The evidence of Mr Swift is consistent with PB 72. Section 3.4 of PB 72 describes preferred site characteristics:

    Sites selected for child-care centres should be sufficient size to accommodate the development, including all buildings and structures, parking for staff and parents, pick-up and drop-off areas, outdoor play areas and landscaping, as determined by the local town planning scheme or relevant local policy or the regulations. As a general rule sites in a residential area should be of rectangular shape and greater than 1000 square metres.

(Page 12)
    It is important to note that the licence to operate a child-care centre, issued under the regulations limits the number of children a centre can accommodate.

47 The Tribunal is not satisfied that the respondent has established a convincing argument that the size of the site is too small for the day care centre. Similarly, the width of the site and the relatively minor variations to setbacks do not in themselves present a barrier to approval of the proposal.

48 The Tribunal supports the argument that, subject to a reasonable minimum size, the area of the site is related to the size of a day care centre. The evidence suggests (subject to consideration of the remaining issues) that the proposed site will be able to accommodate 20 children and that the minimum site area specified in Table 1 of 2,000 square metres could accommodate more children under the Children and Community Service (Child Care) Regulations 2006 (WA) (Child Care Regulations) and a site of 2,500 square metres could accommodate even more children. The Tribunal does not see a valid reason to depart from the guiding suggestion in PB 72 that a reasonable minimum site area is 1,000 square metres.

49 The Tribunal agrees with the respondent that the variation from the development standards can only be approved under cl 4.4.6 of TPS 11 if all three conditions listed in (a), (b) and (c) of cl 4.4.6 of TPS 11 are met. The Tribunal does not see a conflict with orderly and proper planning and the spirit and purpose of the requirement because the size of the proposal is consistent with the requirements of PB 72 and the Child Care Regulations. For similar reasons, the Tribunal finds there is no adverse impact on the occupiers of the proposal. The remaining tests in cl 4.4.6 of TPS 11, apart from the likely future development of the locality, relate to the amenity of the neighbours and the locality. Amenity is discussed later in the reasons.

50 The likely future development of the locality is indicated in Interim Development Order 16 - CVS. Two significant indications of likely future development are that the area remains residential and that a nearby site is identified for a day care centre. The proposed day care centre in a residential area, subject to amenity considerations, is not inconsistent with future development of the locality. With reference to the day care centre site identified in the CVS, the Tribunal agrees with the finding at Allen and Shire of Augusta­Margaret River at [30] where the Tribunal concluded:


(Page 13)
    … although the Hall Road site … is nominated in the Strategy (CVS), that does not mean that other day care centres should not be considered on their particular advantages and disadvantages. That is to say that almost certainly there will be a demand for several day care centres in Cowaramup generated by young parents within the town and surrounds, and a facility for 20 children only on the subject land will almost certainly prove to be insufficient over time.

51 In conclusion, the Tribunal finds that the variations from the development standards are not significant and are not grounds to refuse the development proposal. The Tribunal finds that, if the proposal is found to be acceptable in terms of amenity, then all the conditions of cl 4.4.6 (a), (b) and (c) will be met and the necessary discretion will exist under cl 4.4.6 to approve the proposed development.

52 Traffic and noise are significant preliminary matters to consider before forming an opinion on amenity and the Tribunal will now turn its attention to these matters.




Whether proposed development is acceptable having regard to traffic?

53 The proposed day care centre was advertised, and among the submissions were four objections, with three of those objectors subsequently submitting witness statements. The main concerns of the objectors and witnesses were the increase in traffic, the proximity of the site to the corner of Bussell Highway and the conflict with the busy peak of the morning with children being driven to the school.

54 As mentioned earlier in the reasons, the Tribunal in Allen and Shire of Augusta­Margaret River stated that information on traffic would be required to allow a proper assessment to be made of the proposal.

55 The current proposal included a traffic impact analysis (TIA) by Cardno BSD. The traffic assessment concluded:


    Therefore, as a result of the traffic impact analysis undertaken for the Centre (the proposal), it is concluded that the addition of the traffic generated from the proposed Child Care Centre will have no significant adverse impacts on the traffic operations on Waverley Road and on the intersection of Waverley Road and Bussell Highway.

    Also due to the location of the proposed development within an existing residential neighbourhood and proximity to the existing primary school located to the east of the proposal, a number of walk trips to the Centre can be expected.


(Page 14)
    It is therefore concluded the traffic related issues should not form an impediment to the approval of this Child Care Centre.

56 The respondent did not engage a traffic consultant to comment on the traffic evidence and relies on the evidence of Mr Bain, a planner who made a one­paragraph comment on the traffic assessment as follows:

    The traffic assessment provides no advice in terms of the safety of the traffic volumes in this location and for the subject development. The report only deals with the capacity of the road in terms of its width to carry extra vehicles. Lastly the report gives no assessment of the expectations of the residents in the street in terms of their amenity. It is purely in terms of the quantitative data. The whole report is therefore questionable.

57 The Tribunal does not agree with Mr Bain’s assessment of the TIA. The planners in their report to Council, after assessing the submissions and the TIA, concluded:

    The TIA and the proposal have been subject to assessment by the Shire officers who have no objection to the proposal including consideration of the traffic management implications for the immediate locality.

58 The Tribunal notes significant data in the TIA is that Waverley Road carries in the order of 1,300 vehicles a day and has a capacity for 2,000 vehicles a day. The TIA concludes that the proposal will generate a total of 70 vehicle trips per day (35 in and 35 out). In the context of these figures, the Tribunal agrees with the conclusion of the TIA prepared by Cardno BSD and also with the findings of the planners' report to Council on traffic.

59 An associated aspect of traffic is parking. The Tribunal has considered the evidence raising objections based on parking concerns. Parking was also addressed in the TIA.


    Based on the requirements of (PB 72), the proposal would require a minimum provision of one parking bay per five children inclusive of staff parking, (cl 3.5 of PB 72) resulting in the requirement to provide a minimum of 4 parking bays. The proposed site plan indicates that the parking requirements have been met with the proposal to provide 11 parking bays on site to serve staff, visitors and parents.

60 The Tribunal notes the site plan shows a total of 12 bays on site, not 11 (seven at the rear plus one parallel bay plus two staff bays plus two short­term bays). The total of 12 bays on site does not include the drop­off zone shown on the verge. A reasonable question to ask is whether the proposed 12 bays are adequate even though it exceeds the minimum standard in PB 72. The proposal shows two staff parking bays with the remaining 10 bays being potentially
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    available for drop­off and pick­up. After reporting on average drop-off and pick-up times the TIA concluded the 'capacity to drop off children can be estimated at 64 children per hour and the capacity for picking up children can be estimated at 83 children per hour'.

61 The Tribunal recognises that all 20 children may not arrive at an even period spread over one hour. Nevertheless, the Tribunal concludes that the proposed parking is acceptable, even excessive, especially considering that unlike a school; a day care centre does not have a definitive start time when all children must be present.

62 A final matter to consider is the location of the parking area in view of the respondent’s argument that the car parking is not in front of the building as required by PB 72. Although it is correct that PB 72 states parking areas should be located in front of the building, it continues with the following qualification:


    If this is not possible they (parking areas) should be clearly visible and easily accessible from the entry to the site.

63 The Tribunal finds that the proposal complies with PB 72 in terms of the alternative location requirements. The respondent then argues that the location of the parking to the side and rear will increase noise problems for neighbours. The Tribunal will deal with noise in consideration of the next issue.

64 With the qualification of the noise implication of the location of the parking area to be considered later, the Tribunal finds that the proposal is acceptable having regard to traffic.




Whether the proposed development is acceptable having regard to noise?

65 As mentioned earlier in the reasons, the Tribunal in Allen and Shire of Augusta-Margaret River stated that information on noise would be required to allow a proper assessment to be made of the proposal.

66 The applicant commissioned a noise impact assessment (NIA) from Herring Storer; a consulting firm specialising in acoustics. The NIA states:


    This report considers noise emissions from the child care centre including, children playing outside and vehicle movements within the car park for compliance with the Regulations (Environmental Protection (Noise) Regulations 1997) (Noise Regulations) at the neighbouring residential premises.

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67 The NIA summary stated:

    In accordance with the (Noise Regulations), the relevant assigned daytime noise levels at noise sensitive premises adjacent the proposed child care centre are an L(A10) value of 47dB(A) and an L(Amax) value of 67dB(A).

    In terms of child play activities, predictions of worst case noise propagation indicate that compliance with the regulatory criteria will be achieved at all residential locations; provide the following 1800mm fence is erected:

    - Northern side of outdoor play area.

    - Eastern boundary, from north east corner of the outdoors play area to south east corner of the premises.

    Noise from cars, including closing of doors and engine start up, will also be within the relevant criteria at all neighbouring residences.


68 The respondent did not contest the validity of the NIA by appointing their own expert. Mr Bain, however, did question the value of the NIA on the basis that the report appears to have been prepared without a site visit and then concluding that 'the report gives no measure of the existing level of noise and therefore gives no assessment of the "extra" noise that will be experienced due to the proposed development'.

69 The Tribunal does not accept Mr Bain’s criticism of the NIA and notes the criteria, methodology and assessment adequately explain the process for the findings of the report and that without the contrary findings of another expert there is no reasonable basis not to accept the findings of the NIA.

70 However, the respondent in their contentions does raise a valid matter.


    Compliance with the Noise Regulations is a measure of acceptable acoustic amenity but does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity in a planning sense; Land Alliance (and) Shire of Belmont [2005] WASAT 100 at (39).

71 In Land Alliance Pty Ltd and City of Belmont[2005] WASAT 100 (Land Alliance Pty Ltd and City of Belmont) at [62], the Tribunal refused the application for a child care centre in a residential area '(b)ecause of the impact on amenity of the locality, particularly in relation to noise'.

72 While the Tribunal accepts the principle in Land Alliance Pty Ltd and City of Belmont is applicable to the current review, it also notes there is a significant difference in scale where the day care centre in the Land Alliance


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    Pty Ltd and City of Belmont proposed 80 children on a 2,186 square metre site with 40 children in the three ­ five years old age group, whereas the proposal, subject of this review, is for 20 children on a smaller site with six children in the three - five years old age group.

73 The evidence includes copies of all the submissions that responded to the advertising of the proposal. Four of the responses objected to the proposal with concerns relating to noise being prominent in the objections. Three of the objectors submitted witness statements. Relevant aspects of this evidence follow.

74 Ms Venessa Richardson (currently living in London) owns the adjoining property (No 7 Waverley Road) on the east of the subject land and is immediately adjacent to the external play area of the proposal, screened by a 1.8 metre high acoustic fence on the boundary. Ms Richardson stated in her witness statement:


    Acoustic fencing you will find does little to quell the noise of children and that unless young children are housed (indoors) or physically muzzled (!), noise from this commercial enterprise will greatly affect the quality of life of the residents living on all sides of this allotment.

75 Mr Patrick Hynes lives at Lot 47 Cowawa Court which partially adjoins the rear of the subject land. The application shows that Lot 47 will adjoin the driveway and a small portion of the most rear car parking bay. He is the full­time carer of his partner Kristine Reilly who is a quadriplegic. In addition to concerns raised by other objectors, Mr Hynes states that as a result of Ms Reilly’s disability they rarely leave home and the backyard has become their sanctuary. Mr Hynes explained the significance of his concern about noise.

    It is important to me that the current level of amenity, especially noise, … is not increased as I depend on my ability to hear in order to fulfill my role as Kristine’s carer.

    I need to be able to hear if Kristine is calling for my assistance when she is inside the house and when I am in the backyard or vice versa - this may occur at any time in the day. I am concerned that if the noise levels in the locality increase, I will not hear her.


76 Mr Hynes also referred to Ms Reilly’s hypersensitivity to noise, which was supported by attachments to Mr Hynes' witness statement from Ms Reilly’s doctor and from Silver Chain Nursing.

(Page 18)



77 Ms Jenny Tattam (the mother of two young children) owns and lives on the adjoining property (Lot 102 Waverley Road) on the west boundary of the subject land and is immediately adjacent to the driveway and car park. The property of Ms Tattam adjoins truck depot on Bussell Highway and she complains that if the day care centre is approved she will be sandwiched between two noise generating properties. Ms Tattam stated that when designing their house they deliberately located the bedrooms and family room on the east side of their property (adjoining the existing residential lot and proposed day care centre) to escape the noise from Bussell Highway and the truck depot. She stated:

    We are very concerned about the nuisance factor of the noise associated with traffic movements (including possibly before 7am), engines starting, the slamming of doors and the sound of people congregating in the parking area.

78 The evidence also included a witness statement supporting the proposal from Clayton Gerke who resides at No 7 Waverley Road, the property that immediately adjoins the proposed external play area. With reference to noise, Mr Gerke's statement included the following comments:

    As a resident of Waverley Road or surrounding area you have always other noise factors that would exceed that of any noise coming from the childcare facility. Since we live on a school road, having a beautiful oval and playing grounds and new development going up in Cowaramup we have ongoing maintenance to the grounds, regular traffic for the school. Trucks and tradesmen vehicles hauling building supplies of many sorts. [sic]

    Taking these factors into account, I really do not see how such a service as a child care facility is going to make or cause any more of an impact than what already exists at and around Waverley Road.


79 Mr Swift noted that with reference to the concerns expressed by Mr Hynes, that the residence is located greater than 45 metres from the day care centre; that the Hynes lot only shares 50% of its rear boundary with the day care centre; that the proposed day care centre and external play areas are located as far as possible from the Hynes lot; that the Hynes did not object to the nearby medical centre and its car park; and that the noise report confirms that the noise levels are acceptable.

80 The Tribunal places no weight on some of the matters raised by Mr Swift. The residence may be 45 metres from the day care centre but the rear garden used by Mr Hynes and Ms Reilly immediately adjoins the car park. Also the lack of objection to the medical centre car park is understandable because the medical car park is separate from the


(Page 19)
    Hynes lot by another lot (the Tattam lot).

81 Mr Swift also notes that the objecting neighbours (Ms Tattam) did not object to the medical centre, and further observes that the Tattams have recently received planning approval for a workshop and carport close to the boundary with the day care centre and they have also received planning approval to use their residence as a place of business as a wine wholesaler.

82 The Tribunal places no weight on these particular matters raised by Mr Swift. Ms Tattam, in her witness statement, indicates acceptance of existing and possible commercial uses on Bussell Highway and had designed the house accordingly. The proposed workshop may be a useful barrier against noise from the day care centre’s staff parking and drop­off bays at the front of the site but the proposed building works on the Tattam residence do not provide any barrier between the rear verandah (and associated rooms) and the adjoining car park of the day care centre.

83 In assessing whether the proposal is acceptable having regard to noise, the Tribunal is mindful of the provisions of cl 4.4.6 of TPS 11 (described above) and also the provisions of cl 2.4 of TPS 11 which lists matters to be considered by Council. Many of these matters, together with cl 4.4.6 of TPS 11, ultimately require consideration of amenity. The subject of amenity as an overall planning consideration combining matters such as traffic, noise and social aspects will be considered later in these reasons. For example it is possible that noise and traffic by themselves are acceptable but when combined with other factors the overall amenity is unacceptable. Nevertheless, noise as a separate matter is an amenity issue.

84 The Tribunal is also mindful of the provisions of PB 72 where the noise objectives are to 'limit the impact of the child-care centre on adjacent properties …'. PB 72 then notes that '(w)hile noise can be measured, the intent also is to minimise nuisance which is subjective by nature.' Here, the Tribunal notes that the requirements are not to 'eliminate nuisance' but to minimise nuisance. Similarly, the requirements are not to ensure 'no impact' but rather to 'limit the impact'.

85 Nevertheless, there are very strong objections from adjoining neighbours to the perceived noise nuisance from the proposed day care centre.

(Page 20)



86 After considering the noise potential of the car park and the children, the Tribunal finds that the noise will be acceptable. The NIA reports that the criteria levels for received noise at adjoining residential premises is 47 decibels for L(A10); 57 for L(A1); and 67 L(Amax) where L(A10) is the noise level exceeded for 10% of the time and L(A1) is the noise level exceeded for 1% of the time.

87 Against those standards the proposed levels reported in the NIA are low. For example at location L1 (west adjacent to the car park (Tattam boundary) the L(A10) modelled sound levels are 26 decibels for children playing and 31 decibels for a moving car for a total sound level of 32 decibels. At L2 (north, across from outdoor play areas) the L(A10) modelled sound levels are 34 decibels for children playing and 35 decibels for a moving car for a total sound level of 36 decibels. The boundary of the objecting neighbour Hynes is located between these two locations. The noise levels at these locations are well below the L(A10) standards, also bearing in mind that decibels are measured logarithmically, not arithmetically. At or near these levels the Tribunal finds that that there will not be a problem with the concerns raised by Mr Hynes.

88 The highest noise levels are at location L3 on the neighbour’s boundary immediately adjacent to the play area where the owner objects and the tenant supports the proposal. The L(A10) modelled sound levels at L3 are 44 decibels for children playing and 37 decibels for a moving car for a total sound level of 45 decibels. These levels are closer to the L(A10) requirement but still below the 47 decibel level.

89 Similarly, the modelled levels for car starting and car door closing events are close to but comply with the L(Amax) levels of 67 decibels.

90 Overall the noise with the greatest potential to provide a nuisance is the car start and car door closing events. However, the proposal is a relatively small centre with only 20 children and the number of car start and door close events will be of short duration and infrequent.

91 After considering all the evidence and the possible impact on neighbours, the Tribunal finds that the proposal will be acceptable having regard to noise.

92 Although it is not required as a condition relating to noise, the Tribunal is of the opinion that the perceived impact of car start and door closing events could be reduced if the number of bays at the rear were reduced. In Allen and Shire of Augusta­Margaret Riverat [84] the Tribunal stated that the number of bays should be increased from seven to eight or more. This current proposal includes twelve on­site bays for 20 children and the Tribunal considers this


(Page 21)
    number is possibly excessive. In Ienco and City of Melville [2007] WASAT 56 (Ienco and City of Melville) (discussed below) a day care centre for 40 children and five staff was approved by the Tribunal. In that case the proposal included 12 car bays which, as part of the settlement of conditions, the parties agreed to reduce to 11. The possibility of reducing the car bays has not been argued before the Tribunal and an appropriate order will be issued to enable the parties to investigate the potential benefits and consequences of a reduction in the number of on­site parking bays at the rear of the site.




Whether proposed development is acceptable having regard to amenity?

93 Clause 2.4 and cl 4.4.6 of TPS 11 require consideration to be given to amenity, both of the locality and adjoining neighbours. TPS 11 does not define amenity but cl 1.7 provides for interpretation of terms in TPS 11 as set out in appendix D of the Town Planning Regulations 1967 (WA) (TP Regulations). After amendments to the TP Regulations, the terms are now defined in Appendix B, Sch 1 where amenity is defined in the following terms:


    'amenity' means all those factors which combine to form the character of an area and include present and likely future amenity.

94 In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74, the President, Barker J discussed at [21] ­ [22] the principles of amenity and found that assessment of amenity should not only include the opinions of experts but also the subjective views of residents and that the assessment should consider the present and likely future amenity.

95 In this review, the Tribunal observes consideration of existing and future amenity works in two directions. On one hand there are the very strong objections from adjoining neighbours and on the other hand there are the submissions in support of the proposal; citing the current need for a day care centre in Cowaramup.

96 The CVS does not change the amenity expectations of the immediate locality except to indicate the expectation of commercial uses along Bussell Highway. The most obvious characteristic of the CVS is the allowance for growth and the definition of extended residential areas. A child care site is identified in the CVS but from the evidence before the Tribunal there is no certainty concerning the time frame or the availability of the site. Furthermore, with the


(Page 22)
    expanded population it is unlikely that a single day care centre will meet demand. The CVS shows the retention of public open space and the school on the other side of the road from the subject land. On the basis of the evidence, there is no reason for the Tribunal to believe that future amenity expectations will vary from existing amenity expectations.

97 The objecting neighbour, Ms Tattam, described the various ways in which the proposal would reduce amenity referring to technical matters such as noise, traffic and privacy. After considering Ms Tattam’s witness statement, the Tribunal formed the impression that amenity was not just the sum of the impact of various measurable matters (where each factor may be acceptable but in combination may be unacceptable) but amenity included subjective matters which Ms Tattam described as 'social impact'. In summarising the social impact of having two commercial operations on her western boundary and the proposed day care centre on her eastern boundary, Ms Tattam stated:

    Socially it is very different living in an environment that is dominated by business rather than other residents, and being content with your environment (including the social aspects) is central to the concept of amenity.

98 The respondent argued that social impact is a relevant consideration in the assessment of whether a proposed development is orderly and proper planning and referred to Hope and City of Joondalup [2007] WASAT 8 (Hope and City of Joondalup). In Hope and City of Joondalup at [36] ­ [39]. The Tribunal assessed a proposed short­stay accommodation proposal in a low density residential development in terms of the impact on social cohesion where social cohesion was one of two matters considered in terms of orderly and proper planning. In that case the Tribunal found that the proposal would have an adverse impact on social cohesion and was contrary to orderly and proper planning.

99 However, this proposal is different and involves a day care centre in a residential environment; a use that is contemplated by the CVS in a residential zone. Furthermore, it is unrealistic to paint a picture of expected residential contact with nearby neighbours that would be typical of a house in the middle of a residential street block with two to three residential properties on either side and six residential properties on the other side of the street, that is, a cell of 10 - 12 houses all facing each other. Ms Tattam’s house is in a street block of four lots where the adjoining corner lot has a commercial use and the land on the other side of the road is public open space. The Tribunal does not accept that in this case the proposed day care centre will have an adverse impact on social cohesion. Even though it does


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    not form part of the Tribunal’s reason for the decision, an argument can be made that in a small community country town an adjoining day care centre may increase social contact.

100 This Tribunal, in Ienco and City of Melville at [65] ­ [75], discussed the planning principles as they relate to day care centres in a residential zone. Two issues discussed are directly relevant to this review. The first issue is the respondent’s argument that the day care centre will adversely impact on the residential amenity of the locality. In Ienco and City of Melville, the Tribunal referred to a decision made by the Victorian Civil Administrative Tribunal in Jones v Boroondara CC [2006] VCAT 1833, and at [65] cited the following passage:

    (xxxiii) Where a street tree requires removal and/or pruning for this development, a separate application shall be made to the Shire of Augusta­Margaret River in line with the Street Tree Removal and Consultation Policies.

    (xxxiv) Signage for the development/use may be erected on the site pursuant to this planning approval providing:


      (a) it complies with any town planning scheme or policy requirements;

      (b) a sign licence has been issued by the Shire of Augusta­Margaret River; and

      (d) it complies with Policy PE 46, Control of Signs and Advertising Devices.


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    3. The parties may, by agreement, reduce the total number of car parking bays provided the reduction occurs in the rear car park.


    I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR R EASTON, SENIOR SESSIONAL MEMBER


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Cases Citing This Decision

2

KOGON and CITY OF VINCENT [2019] WASAT 75
APP CORPORATION PTY LTD and CITY OF PERTH [2011] WASAT 132
Cases Cited

7

Statutory Material Cited

12

Allen and Shire Of Augusta-Margaret River [2007] WASAT 103
Hope and City Of Joondalup [2007] WASAT 8
IENCO and CITY OF MELVILLE [2007] WASAT 56