EVANGEL CHRISTIAN FELLOWSHIP INC and SHIRE OF SERPENTINE-JARRAHDALE - [2017] WASAT 159

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: EVANGEL CHRISTIAN FELLOWSHIP INC and SHIRE OF SERPENTINE-JARRAHDALE [2017] WASAT 159

MEMBER: MS M CONNOR (MEMBER)

HEARD: 4, 5 AND 6 SEPTEMBER 2017
(FURTHER WRITTEN SUBMISSIONS RECEIVED 19 SEPTEMBER 2017)

DELIVERED : 20 DECEMBER 2017

FILE NO/S: DR 131 of 2017

BETWEEN: EVANGEL CHRISTIAN FELLOWSHIP INC
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning - Development - Place of public worship and construction of associated buildings - Restrictions on hours of operation and number of persons attending sessions - Whether the proposed development is consistent with the planning framework - Whether the proposed development will have unacceptable adverse impacts on the amenity and character of the locality - Whether the proposed development is incompatible with its setting

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA),
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 1, cl 67, Sch 2
Planning and Development Act 2005 (WA), s 252(1)
SerpentineJarrahdale Town Planning Scheme No 2 (WA), cl 1.6, cl 1.6(a), cl 3.2, cl 3.2.1, cl 5.10, cl 5.10.1, Table 1

Result:

Application for review dismissed
Decision of respondent affirmed

Summary of Tribunal's decision:

Evangel Christian Fellowship Inc applied to the Tribunal for review of a decision of the Shire of SerpentineJarrahdale to refuse to grant development approval for a 'Place of Public Worship' and construction of associated buildings on No 215 (Lots 888 and 889) Masters Road, Darling Downs.
The following three issues arose for determination in this matter:
1)Whether the proposed development is consistent with the planning framework having due regard to cl 67(a), (b), (c), and (g);
2)Whether the proposed development will have unacceptable adverse impacts on the amenity and character of the locality and is incompatible with its setting; and
3)Having regard to the issues referred to above, should the development approval be approved?

The Tribunal was not satisfied that mere compliance with the Environmental Protection (Noise) Regulations 1997 (WA) was sufficient, in this instance, to mitigate the adverse impacts of noise emissions from the proposed development on the existing amenity of the locality. The sources of potential noise emissions that may at times be audible at the surrounding residences and to users of the bridle trails were considered to be discordant with the character of the locality and therefore, the degree of impact on the locality was considered to be such the proposed development warranted refusal. Further, the Tribunal did not consider the proposed development to be consistent with the objectives of the planning framework as the proposed development would adversely impact on the residential living and equine character of the residential and stable policy area and therefore, in the interest of orderly and proper planning declined to exercise discretion to approve the proposed development. Consequently, the application for review was dismissed and the decision of the respondent affirmed.

Category: B

Representation:

Counsel:

Applicant: Ms B Moharich
Respondent: Mr A Roberts

Solicitors:

Applicant: Moharich & More
Respondent: McLeods

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

Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272, (2005) 41 SR (WA) 79
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 199
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CJC Verwey trading as Urbanism made application on behalf of Evangelical Christian Fellowship Inc (applicant) to the Shire of SerpentineJarrahdale (respondent, Council or Shire) for development approval for a change of use for a 'Place of Public Worship' and the construction of associated buildings on Lots 888 and 889 (No 215) Masters Road, Darling Downs (subject land).
The Council at its meeting of 27 March 2017 resolved to refuse to grant development approval for a 'Place of Public Worship' on the subject land for the following reasons:
1.The proposal is contrary to orderly and proper planning and is inconsistent with the Shire's Strategic Planning Framework, the objectives of the Shire's Town Planning Scheme No 2, [t]he Shire's Rural Strategy and in particular the Residential and Stables policy area of the Rural Strategy.
2.The nature and intensity of the proposed use and associated activities is not considered appropriate with the existing and established character of the area.
3.The proposal will have a detrimental impact on the amenity of surrounding development; this was also expressed in a significant number of objections received during the community consultation period.
4.The proposed development is an undesirable outcome in this location, which will significantly impact the quality of a rural living area recognised and valued for equine character of the area.
5.The proposal is better suited to, and should be located in, an area of the Shire where it will create less conflict with surrounding development and where the nature and intensity of the uses are more compatible.
The applicant, on 18 April 2017, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision review. The applicant seeks an order that the respondent's decision be set aside and the application for development approval be granted.

Subject land and surroundings

The subject land is more particularly described as Lots 888 and 889 on Deposited Plan 7511 comprised in Certificate of Title Volume 2822 Folio 747.
Lot 888 is 2.0342 hectares in area and has a 117.63 metre frontage to Masters Road and is connected to Reserve 35603 (which runs parallel with the rear boundary of Lot 889) via an 8 metre wide 'pan handle' access strip. Lot 888 currently contains the following improvements:
•a two storey dwelling along with incidental improvements (swimming pool, gazebo and patio); and
•three sheds located on the northern boundary with a combined floor area of approximately 543.8m².
Lot 889 is a battle-axe lot located at the rear of Lot 888 and is 2.128 hectares in area and is connected to Masters Road via a 6 metre wide access leg. The rear boundary of Lot 889 abuts Reserve 35603. This lot is currently vacant.
The subject land contains a multiple use category wetland and a linear natural watercourse within a rural drainage system known as the Birrega Drainage Catchment, which is subject to a 15 metre wide drainage easement.
Adjacent to the subject land, to the rear, is a bridle trail (Reserve 35603) which forms part of the Darling Downs Trail Network. The bridle trail is reserved as 'Public Open Space' under the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme) and is connected from '70 acres' (Reserve R35701) south of the subject land to Rowley Road to the north and Hopkinson Road to the east, where it continues into Oakford.
Land within the area surrounding the subject land is used predominantly for residential purposes and equestrian activities which primarily involve the stabling and training of horses. Non-residential land uses in the locality include the Wexford Park Equestrian Centre, an elite riding centre to the south of the site; and the Free Reformed Church of Darling Downs to the north of the subject land, on the corner of Masters Road and Rowley Road.

The proposal

The development, which is to be primarily located on Lot 898, consists of a single storey building with a floor area of 499.7m² to be used for the purposes of 'Place of Public Worship' (Church building). The existing single house on Lot 888 is to be retained and will remain as a single residential dwelling.
The Church building has a maximum capacity of 120 people at any one time and includes church hall, parents room/meeting room, multipurpose room, administration and pastor's office, meeting room/board room, utility room/resource library, kitchen, entry foyer, internal circulation/hallway, store, and sanitary/ablution facilities.
The original development application submitted to the respondent proposed that the Church building be used seven days a week, for various activities, between the hours of 9 am to 10 pm. Outside of the Sunday weekly worship, it was expected that a maximum of 30 congregants would attend the property on a daily basis for different Church programmes that include leadership training, character training, prayer meetings and youth training.
The applicant amended its application to delete the character and leadership training, as well as the capacity for trainees to stay with the pastors in their home on Lot 888 and substituted the following revised table of activities to be undertaken in the Church building:

Day	Time	Activity	Remarks	Number of Persons
Sunday	9 am 2 pm	Sunday morning service	Weekly worship and Fellowship	100 adults and 20 children
Thursday	7 pm 10 pm	prayer meeting	Weekly prayer meeting	50 people, including children
Friday	6 pm 9 pm	youth group	Location may change subject to other homes	20 30 people
Saturday	9 am 2 pm	Bible study program	Study of Bible, and practising for outreach programs which include children, youth and nursing home outreach	20 30 people

The Tribunal was also told that a small number of events directly involving the congregants of the Church, such as weddings, funerals, and Christmas and New Year celebrations, may also be held in the Church building each year.
Access to the Church building is to be provided by a new unsealed access driveway from Masters Road through Lot 888. A children's play area is proposed to the west of the Church building on Lot 889.
The applicant called Ms Grace Wai Sze Liew, a member of the Evangel Christian Fellowship Church (Church), to give evidence about the religious activities and the conduct of worship to be carried out at the proposed place of public worship.
Ms Liew told the Tribunal that the Church has been in existence since 1991 and is modelled after the Antioch Church which focuses on missions to 'plant' new churches in other locations to spread the work of the Gospel. According to Ms Liew, it is an independent church that is owned by its members as an incorporated association. She estimated that presently there were about 70 to 80 congregants, made up of approximately 17 to 20 families and that a high percentage of these were of Malaysian and Singaporean ethnicity.
She explained that the Church was not focussed particularly on gaining new members but on spreading the word of God by sending people from the Church out on missions, or equipping people where they are, rather than gaining a substantially larger congregation in Perth. According to Ms Liew, new attendees mostly come to the Church by way of personal invitation from an existing church member. She also identified that a number of international students come to worship at the church and that this cohort tended to remain members of the congregation while they were studying and then leave at the end of their studies when they returned to their home country. Ms Liew told the Tribunal that since the inception of the Church the number of congregants had remained constant at around 70 persons and she did not foresee that the number was likely to move much in either direction.
In respect to the conduct of Sunday worship, Ms Liew explained that worship and fellowship commences with the service proper at 9 am, involving prayer, worship and then a message from the pastor with the service finishing at around 11 am. Some of the congregation will leave at the conclusion of the service but many will stay for fellowship, further prayers and to work on projects for the Church, which would conclude by 2 pm.

Planning framework

Statutory framework

The subject land is zoned 'Rural' in the Metropolitan Region Scheme and 'Rural' under TPS 2.
Clause 1.6 of the Scheme sets out the general objectives and purposes of the Scheme. Of particular relevance is subclause (a) which states:
to secure the amenity, health, safety and convenience of the inhabitants of the District.
Clause 5.10 of the Scheme sets out the purpose and intent of the Rural zone which 'is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area'.
'Public Worship Place of' is defined in Appendix 1 Interpretations of the Scheme as meaning:
… land and buildings used for the religious activities of a church but does not include an institution for primary, secondary, or higher education, or a residential institution.
Clause 3.2 of the Scheme makes provisions for a Zoning Table, which pursuant to cl 3.2.1 indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones.
'Public Worship Place of' is designated as a 'SA' use in the Rural zone in the Table 1 - Zoning Table (Zoning Table) of the Scheme. 'SA' 'means that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with Clause 64 of the Deemed Provisions'.
The development application was advertised for public comment and referred to the Department of Water, Water Corporation and the Department of Parks and Wildlife. At the conclusion of the advertising period a total of 82 objections and six submissions in support had been received by the respondent. Two of the referral agencies provided advice on a number of aspects but did not oppose the proposed development.
Table V - Parking Requirements of the Scheme sets out the parking requirements for specific land uses and prescribes the requirement for a 'Place of Public Worship' as 1 space per 4 persons accommodated. It was uncontroverted that the proposed development complies with the prescribed number of car parking bays.
Clause 67 of Sch 2 of the Deemed Provisions for Local Planning Schemes (deemed provisions) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provides that the local government, in considering an application for development, is to have due regard to a range of specified matters the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The pertinent matters regarding this application, as identified by the parties, are as follows:
•the aims and provisions of the scheme (subclause (a));
•the requirement of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning policy for the Scheme Area (subclause (g));
•the compatibility of the development with 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 (subclause (m));
•the amenity of the locality including environmental impacts of the development, the character of the locality and the social impacts of the development (subclause (n)); and
•any submissions received on the application (subclause (y)).

Local strategic planning framework

It was agreed by the parties that the following documents comprised the applicable strategic planning framework for the locality:
(a)the 1994 Rural Strategy, which was subsequently reviewed in 1996 and 2003; and
(b)the Shire of Serpentine-Jarrahdale Rural Strategy Review (2013) (2013 Review).
In the 1994 Rural Strategy the subject land was contained within the Farmlet Policy Area, which provided opportunities for small-scale keeping of stock, small-scale commercial and agricultural pursuits, productive rural living lifestyle, small-scale home-based light industry and rural retreats. There was no specific mention in the Farmlet Policy Area that specified the use of the area specifically for equine activities. The 1996 review did not result in any modifications affecting the subject land.
The 2003 Rural Strategy Review (2003 Review) incorporated a Residential and Stable Policy Area which included the Byford Trotting Complex and the rural residential areas supporting the Darling Downs Equestrian Reserve, which included the subject land. The purpose of this Residential and Stable Policy Area was to distinguish those parts of the Shire of SerpentineJarrahdale dominated by horse related activities from conventional rural residential subdivisions.
Clause 4.8.4 Land Uses of the 2003 Review provided the following guide to the type of land uses that may be considered within the Residential and Stable Policy Area:
Desirable
The stabling and training of horses.
The storage of commercial vehicles used in the transport of stock.
Any other use incidental to the horse industry.
Conditional
Horse training tracks.
Undesirable
Commercial vehicle parking (other than associated with the equine industry).
The 2013 Review has been adopted by the respondent and the Western Australian Planning Commission (WAPC) has provided inprinciple support for the document subject to modifications that do not materially affect the subject policy area in respect to this application.
The 2013 Review incorporates the Residential and Stable Policy Area as reflected in the 2003 Review and states as follows:
… the purpose is to provide a separate zone for intense equine activities which can potentially generate offsite impacts that could conflict with the values of traditional rural living areas. This distinguishes the areas of the Shire that are dominated by horse related activities.
The most desirable land uses in this policy area is predominantly the stabling and training of horses. The Equine Policy Area has been located across the Darling Downs Equestrian Reserve for some time. It clearly identifies that the area has a focus on equestrian activities and that landowners in the Policy Area take comfort from the fact that equestrian uses are protected from other potentially incompatible land use. In this regard it is considered that the Policy Area has been a success since its introduction. The Shire is now known as a desirable destination for this type of land use.
The stated objectives for the Equine Policy Area are:
•To recognise the importance of the equine industry to the Shire.
•To recognise the adverse impacts of some activities ordinarily carried out within Rural Living areas on the equine industry and to ensure that these are adequately planned for.
•To maintain and protect the rural living and equine dominated character of the Policy Area.
•Protect Local Natural Areas and encourage revegetation.

State planning policy

The parties referred to cl 5.11 of State Planning Policy 2.5 Rural Planning (SPP 2.5) which relates to the accommodation of regional facilities, such as places of worship, on rural land. SPP 2.5 provides the following guidance in respect to situations where a development application is lodged:
(a)facilities should be located on a main road or on a road that is of suitable standard and treatment, to accommodate significant increase in traffic volumes and freight tasks which may be generated by the proposal;
(b)facilities should contain or satisfactorily manage potential environmental (including water resources), noise, amenity, and air quality impacts on the landholding without affecting nearby rural land uses;
(c)facilities should not be visually dominant within key viewsheds, and should be visually compatible with surrounding land uses and development; and
(d)facilities should be provided with essential services commensurate with the intended land use.

Issue

The respondent, in its statement of issues, facts and contentions, initially identified six issues for determination in relation to this matter. The first issue, which related to the proper classification of land uses, was not pressed by the respondent as the issue had fallen away due to the amendments made to the application by the applicant. During the hearing, Mr Roberts, the respondent's representative, further narrowed the issues to the following:
1)Whether the proposed development is consistent with the respondent's strategic planning framework;
2)Whether the proposed development is inconsistent with the purpose and intent of the Rural zone under TPS 2;
3)Whether the proposed development will have unacceptable adverse impacts on the amenity and character of the locality and is incompatible with its setting; and
4)Having regard to the issues referred to above, should the applicant's development application be approved?
Ms Moharich, the applicant's representative, in closing submissions usefully referenced the issues to the relevant matters for consideration under cl 67 of the deemed provisions. Issues 1 and 2 which relate to whether the proposed development is consistent with both the local planning scheme and any relevant strategic planning documents, correspond with subclauses 67(a), (b), (c), and (g) of the deemed provisions.
Issue 3 relates to an assessment of the application in regards to amenity, compatibility and character. The corresponding matters listed in cl 67 of the deemed provisions are subclauses (m), (n) and (y). Issue 4 is dependent on the findings of the other three issues.

Whether the proposed development is consistent with the planning framework having due regard to cl 67(a), (b), (c) and (g) of the deemed provisions

The purpose and intent of the Rural zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area: cl 5.10.1 of TPS 2. The term 'rural pursuit' is not defined in the Scheme and the applicant does not press that a place of worship is a rural pursuit.
The respondent argues that the nature of the proposed development could not be considered to be 'rural in any way' and '[s]o to that extent it's inconsistent with the purpose … of the Rural zone (T:171; 06.09.17).
The Tribunal does not agree. The Zoning Table of the Scheme establishes the permissibility of different categories of rural use classes, as well as, assists in identifying other use classes that may be considered as 'associated activities' that support the carrying out of 'rural pursuits' in the Rural zone. For instance, it may be appropriate to approve a 'Consulting Room', which on its face could not be described as a rural activity, but is a land use that may be needed to service the medical needs of the local community, thereby supporting the carrying out of rural pursuits in the Rural zone. Interestingly, it would seem that the scale of the 'associated activities' within the Rural zone has been considered in the designation of permissibility of use classes in Table 1, as for example, a 'Consulting Room' is a discretionary use, whereas, a 'Medical Centre' is a use not permitted in the Rural zone.
The Tribunal, therefore, does not consider the use class 'Public Worship Place of' to be inconsistent with the purpose and intent of the Rural zone as provided for in TPS 2 as this use class is considered to be an associated activity that supports the carrying out of rural pursuits in the Rural zone and as such, is consistent with the purpose and intent of the Rural zone. However, as to whether it is appropriate to exercise discretion to approve an application for a place of worship on land zoned Rural will be dependent on the circumstances of the case.
The Rural zone area in which the subject land is located is included in the residential and stable policy area as identified in two iterations of the respondent's rural strategy. Although the Shire has had in place a rural strategy to guide decisionmaking in respect to future land use in rural areas of the Shire since 1994, the establishment of the residential and stable policy area for the Darling Downs locality was first identified in the 2003 iteration. This policy area has been retained in the 2013 Review and is intended to provide a separate area in the municipality for intense equine activities. Whilst the 2013 Review clearly articulates the most desirable land uses for the policy area as the stabling and training of horses, it goes no further in the identification of preferences or desirability of other specific land uses. The description and objectives of the policy area provide limited guidance and although the policy area has a focus on equestrian activities, it is not to the exclusion of all other land uses. What can be concluded from the description and objectives is to the extent that nonequine land uses are contemplated within the policy area, they should not adversely impact on the residential living and equine character of the residential and stable policy area, nor should they be sensitive to the offsite impacts generated by the equine activities.
Whether a place of worship is consistent with the objectives of the residential and stable policy area is undoubtedly dependent on the substantive merits of the particular application and in this instance, on the 'qualitative' assessment of matters referred to by the applicant's representative in closing submissions, those being amenity, character and compatibility.
Similarly, the relevance of SPP 2.5 is limited to the consideration of ensuring compatibility between land uses and is relevantly focused on the need to assess potential impacts that may arise from nonrural activities on nearby rural land use and include such matters as traffic volumes, amenity, visual compatibility and noise. The potential impacts arising from the proposed development will be discussed in detail under Issue 2.

Whether the proposed development will have unacceptable adverse impacts on the amenity and character of the locality and is incompatible with its setting

The respondent asserts that the physical form, traffic movement and the nature and levels of activities and noise associated with the proposed development will be inconsistent with and adversely impact on the established character and amenity of the locality and for the same reasons is incompatible with its setting.
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and include the present and likely future amenity'. The amenity of the locality, including the character of the locality, is one of the matters specified in cl 67 of the deemed provisions to which due regard is to be given in the consideration of an application for development approval.
The Tribunal had the benefit of expert evidence from three planning consultants: Mr Joe Algeri, called on behalf of the respondent and Mr Aaron Lohman and Mr Cornelius Verwey called on behalf of the applicant.
The planning experts agreed that in the broadest context, 'locality' comprised the entirety of the residential and stable policy area. Within this area, there is a consistency of land use in terms of rural residential living and equine activities on lots of 2 4 hectares and a visual uniformity in the physical form of development, featuring bridle trails at the rear of most of the lots.
However, Mr Lohman and Mr Verwey consider that due to particular differing characteristics within the broader locality, the 'locality' in respect to this development could be further refined to Master Road, particularly the area north of the sbend in Masters Road, which in essence relates to the land zoned 'Rural' in the Scheme. Mr Verwey even suggests a third separate level of locality that needs to be considered, being the subject land itself as it has a different defined character from those lots surrounding it because of the drainage easement and multiple use category wetland that traverse the site.
The term 'locality' is not defined in the Scheme. The Tribunal in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
The Tribunal is not convinced that 'locality', in this instance, should encompass the whole of the residential and stable policy area as although there is a commonality of objectives for the area which results in similarities in some aspects of development, there is a distinctly different level of amenity for those lots that front onto Masters Road and the physical development on the Rural zoned lots, as explained by Mr Verwey in his oral evidence, is different to the lots zoned 'Special Rural'. For these reasons, the Tribunal is of the view that 'locality' should encompass the Rural zoned lots along Masters Road. In addition, the 'locality' should also include the bridle trail that runs parallel to the subject land and the two lots west of the bridle trail that are identified as highly noise sensitive areas by the acoustic experts, as these areas relevantly affect or are affected by the proposed development.
In order to assess the impacts of the proposed development on the amenity of a locality, it is necessary for the Tribunal to undertake an objective inquiry as to the character of the area that represents the state of amenity (see Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296) and an assessment of the likely future character of the area (Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116).
It was agreed by the planning experts that other than the large church on the corner of Rowley Road and Masters Road, the character of the locality is predominantly residential with associated equestrian activities. Mr Algeri in his witness statement, although describing the broader locality, characterised the area as:
… spacious, open and quite undeveloped properties that are often representative of a rural living lifestyle and more colloquially known as a semi-rural area. Furthermore, the development commonly seen within the area [is] single dwellings, with a couple of outbuildings or stables, and fence lines dividing the properties into several paddocks.
…
Specifically, one of the unique characteristic of the area is the bridle trails at the rear of most lots. It would appear that these trails are utilised frequently by landowners in the locality and one of the obvious advantages for horses is that they are generally well away from residences, other buildings and particularly vehicular traffic[.]
The Tribunal accepts this description as relevant to the 'locality' as defined above.
Mr Verwey in describing the character relating to the land along Masters Road north of the sbend considers that in this area the residences dominate the street view as the equine activities are located toward the rear of the properties, whereas in the special rural area, the equine activities are the prominent feature. It was also observed that the intensity of the equine activities is, in part, different from the broader locality in that there are a number of commercial enterprises, such as the Thorne Park Stud (immediately across the road from Lot 888) and the Wexford Park Riding School.
The respondent also called three resident witnesses, Ms Elizabeth Butler of Nos 225 and 239 Masters Road and Mr Perry Holland of No 213 Master Road, whose properties abut the subject land and Mr Peter Benson of Rain Lover Court, to give evidence as to the existing character of the locality and in relation to the perceived impacts of the proposed development. The resident witnesses were not required for crossexamination.
The Tribunal recognised in Canning Mews Pty Ltd v City of South Perth [2005] WASAT 272, (2005) 41 SR (WA) 79 at [48]:
… in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity,] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]
Ms Butler, whose property is located to the north of the subject and, explained that she purposely purchased property in the Darling Downs area because of the equestrian focused lifestyle. The particular attraction in this area is the bridle trail network which links up with 70 acres, a public open space reserve that contains a crosscountry course, two dressage arenas and other facilities.
Ms Butler has recently constructed a new dwelling on the rear battleaxe lot which is directly adjacent to the proposed Church building. She never expected 'to be living next to a church'. Ms Butler raised concerns relating to noise emanating from the proposed development being audible from her house both in respect to the Church activities and from vehicles entering and exiting the subject land; light pollution from security lighting and headlights; and the incompatibility of the use with the equine nature of the area.
Mr Holland told the Tribunal that he and his wife have owned the property at No 213 Masters Road (located to the south of the subject land) for 26 years and moved to the area because they wanted their family to live the 'country life' with an equestrian lifestyle. In his witness statement Mr Holland highlights the community expectation for a safe environment for people to ride their horses, which has been created through the unique bridle trail network that links to 70 acres. Mr Holland also identified the type of equestrian activities that occur within the area, which includes horse agistment, training and stabling of trotter, show jumping; endurance, event and dressage horses, pleasure riding, day rides by riding schools, and walking of horse.
Mr Holland told the Tribunal that Darling Downs is a quiet place to live and that the only real source of noise is Masters Road. Both Mr Holland and Ms Butler referred to previous events being held on the subject land attended by approximately 50 or more people and that these events created a significant amount of noise which they found to be disturbing particularly given the 'quiet and tranquil nature of the area'. He was concerned that the level of noise generated by the proposed development will disturb the 'peaceful nature' of area.
Mr Benson, who is also a member of the Darling Downs Residents Association (Residents Association), in his witness statement, outlined the efforts of the Residents Association to improve and maintain the communal equine facilities in the area. It is evident that the Residents Association is committed to managing the equine facilities and further developing the equine nature of the area. Mr Benson raised the concern that approval of the proposed development would set a precedent for other non-equine uses to establish in the area, which he considers will compromise the unique equine nature of the area and its lifestyle.
The amenity impacts raised by the resident witnesses are the same impacts identified and argued by the respondent.
Clearly the goals and aspirations of the broader locality influence the character of the 'locality' as defined for the purposes of this application. The locality as described by the planning experts is predominantly residential with equestrian activities and is part of a unique area that fosters an environment where equine activities dominate and are fundamental to the character of the area. Plainly, Masters Road is an element that influences the character of the 'locality' in this instance and is the pattern of settlement.
No evidence was adduced by the parties as to the likely future amenity of the locality and as such, nothing to suggest that the likely future amenity is to be any different to that which already exists.
As to the manner in which the proposed development will affect the amenity of the locality and the degree of impact on the locality, evidence was adduced by the parties relating to traffic movement, noise, lighting, visual impact and compatibility of the development with equine activities.

Traffic movement

Mr Colin Ryk Kleyweg, a civil and traffic engineer who is the Managing Director of KC Traffic and Transport Pty Ltd (KCTT), was called on behalf of the applicant to give evidence on the impact of the development on the road network. The respondent did not adduce any evidence relating to this issue and did not contradict any evidence given by Mr Kleyweg.
KCTT prepared a Transport Impact Statement (TIA) for the proposed development in accordance with the WAPC's Transport Impact Assessment Guidelines Volume 4 Developments. The purpose of which was 'to provide commentary and analysis on the parking requirements and the potential traffic and transport impact that the proposed development of [the subject land] may have on the surrounding road and transportation networks'.
The TIA concluded that the proposed development 'is expected to generate approximately 25 vehicular movements per day with a forecasted impact of around 5 vehicular movements per hour in the peak hour on weekdays and approximately 85 vehicular movements per day with a forecasted impact of around 35 vehicular movements per hour in the peak hour on weekends'.
The TIA deduced that the additional generated traffic from the development would be distributed on the adjacent road network as follows:
•67% (17 VPD on weekdays/57 VPD on weekends) of all trips of the proposed development are expected to be from/to the south via Masters Road.
•33% (8 VPD on weekdays/28 VPD on weekends) of all trips of the proposed development are expected to be from/to the north via Masters Road.
Based on these findings, Mr Klegweg in his witness statement states that 'the development generates traffic volumes that are between 0.6% and 5.0% of the total traffic volumes that existed in Masters Road in November 2014' and opines that 'these values are not high, and will not impact the existing rural amenity'.
In oral evidence, Mr Klegweg told the Tribunal that there has been some minor increase in traffic volumes on Masters Road since November 2014 due to the residential development to the north of the locality and as such he held the view that the percentage volumes expressed in his witness statement would be reduced as a result of this increase.
The Tribunal accepts the evidence of Mr Klegweg and is satisfied that the volume of traffic generated by the proposed development will not impact on the functionality or adversely affect the existing amenity of Masters Road.

Noise

The Tribunal had the benefit of expert evidence from Mr Michael Ferguson, an acoustic and environmental consultant called on behalf of the applicant, and Mr Terry George, an acoustic engineer called on behalf of the respondent.
A report entitled 'Architectural Acoustics Development Approval Report Lot 889 Master Road Darling Downs' was prepared by Mr Ferguson that outlined the potential environment noise issues applicable to the development approval stage of the proposed development. Mr George was engaged by the respondent to review this report with regard to the potential noise impacts. The Tribunal also ordered that the experts confer and provide the Tribunal with a joint statement identifying the areas of agreement and disagreement and the reasons for their disagreement.

The acoustic experts identified five highly noise sensitive areas and agreed that if the following measures were undertaken then the proposed development would be compliant with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations):
1)The internal noise level for the worship hall to be limited to 86 dB(A), which can be achieved through the use of a sound-limiting device;
2)If amplified music was to be played before 9 am on a Sunday, then additional construction measures would need to be incorporated in to the building, such as, an external layer of fibre cement and an internal layer of plasterboard;
3)The internal noise limit of the multipurpose room be limited to 88 dB(A);
4)All doors for entering and exiting the church building being fitted with self-closing mechanisms;
5)No more than 60 persons at any one time to be permitted to gather in the exterior breakout area;
6)A maximum of 20 children to be permitted in the children's play area and children should not be permitted to use this area between 10 pm and 7 am Monday to Saturday or before 9 am on Sunday and Public Holidays;
7)Management of the exterior breakout area and the children's play area so ensure that unruly and loud persons and noisy or distressed children are managed appropriately;
8)Mechanical plant being relocated to the south side of the building;
9)The agreed number of cars entering the site to be restricted to the proposed number of car bays;
10) The windows and doors of the building remain closed at all time during functions; and
11) Amplified music would be restricted to the Church hall and multipurpose room.
However, both acoustic experts agreed that 'whilst compliance can be achieved with the management of the facility … certain activities and vehicle movements etc. could still be audible at the surrounding residences, particularly during periods of low ambient noise levels'.
In oral evidence, the acoustic experts agreed that the most likely noise that will be audible at the boundary of the property if the background noise is low will be the cars drive in and the loudest intermittent event will be the closing of car doors.
Mr Ferguson and Mr George agreed that notwithstanding the acoustic measures, amplified music 'may be just audible' (T:78; 05.09.17) within the noise sensitive areas when ambient noise levels were lower than the predicted noise levels. Mr George also discussed the difference in noise frequencies citing the example of leaves rustling, which is a more mid to high frequency, and a drum noise which is a low frequency and concluding that 'music will sound different' (T:80; 05.09.17). Mr George also stated, and Mr Ferguson agreed, that 'anything outside the building has the potential to be audible. I think it's as simple as that really'. (T:85; 05.09.17). The Tribunal has previously found that, 'compliance with the Noise Regulations does not necessarily mean that noise does not constitute an adverse impact on the existing amenity of the locality': see Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 199 at [39].
Notwithstanding that the acoustic experts agree that the incorporation of additional noise control measure will assist in mitigating noise emissions from the proposed development, it is clear that a number of activities will at times be 'just audible' at the surrounding residences and to users of the bridle trails. The sources of potential noise emissions that may at times be audible to the surrounding residence are sounds that are considered to be discordant with the character of the locality.
The remedial measures required are fairly extensive and many of the measures rely on active ongoing management. Given the nature of the potential noise sources and the complexity of effectively managing such activities (children playing, door opening during functions, limiting numbers in the breakout area), the Tribunal is not confident that these measures can be put in place and effectively maintained at all times.
This is a case where mere compliance with the Noise Regulations is not adequate to properly mitigate adverse impacts on the existing amenity of the area. The character of this locality is considered to be quite unique and the Tribunal is of the view that noise emissions associated with amplified music, outdoor gatherings and vehicle movements are not the type of noise emissions that are expected in a rural setting such as this, and therefore, noise emissions of this nature are considered likely to result in adverse noise impacts on adjoining and adjacent residences and users of the bridle trails, thereby diminishing the noise environment that presently exists. The Tribunal is of the view that the place of public worship will adversely impact on the existing amenity and character of the locality, and is therefore incompatible.

Lighting

The issue of light spill was not raised as an issue by the respondent, although it was a concern expressed by Ms Butler. Mr Lohman in his evidence confirmed that the existing vegetation would assist in ameliorating a significant amount of light spill and that any residue spill could be managed by design and mechanical measures. His evidence was not challenged by the respondent.
The Tribunal is satisfied that light spill from the proposed development can be satisfactorily mitigated and such would not adversely impact on the amenity and character of the locality.

Visual impact

The planning experts agreed that the Church building was residential in form and of a similar scale to buildings in the locality. Mr Algeri did not have a concern with the visual appearance of the Church building. However, in respect to the car parking area, he considers the paved area to be completely out of character with the locality, but accepted that it will only be visible to the lot to the south of the subject land (Mr Holland's property) and that the proposed vegetation screening will assist in mitigating the visual impact.
It is accepted by the respondent that the visual impact of the Church building is ameliorated to some extent by its location on Lot 889, although argues that the structure does remain visible, to varying degrees, from other places in the area, particularly Mr Holland's property and the bridle trail.
The Tribunal accepts that the built form of the Church building is consistent with the form and scale of buildings within the locality and does not consider that the physical form of the Church building will have a negative visual impact on the amenity of the locality.
The car parking area which is located to the south of the Church building is an element that could visually detract from the amenity of Mr Holland's property. The Tribunal accepts that this issue can be mitigated by requiring sufficient landscaping of the car parking area to reduce any visual impact.

The compatibility of the proposed use with equine activities

It is recognised that equine activities can generate offsite impacts that may conflict with other non-equine activities. Mr Algeri, in his oral evidence, identified three offsite impacts that could impact on the proposed development, being dust from the nearby training arena; and odour and fly problems from horse manure. The respondent contends that these offsite impacts would not contemplated by the congregants and therefore their expectations of amenity will be detrimental affected by these impacts.
Mr Lohman did not consider the off-site impacts to be so significant to adversely impact the congregants and to the extent that these impacts may be an issue they would be ameliorated through the conduct of the activities being held indoors in an air-conditioned building. Further, the applicant argued that the use of the land for place of worship creates no greater threat in this regards than the construction of a single house in the same location.
The Tribunal does not consider that the evidence relating to the off-site impacts of the surrounding equestrian uses on the proposed development is sufficient to establish that the amenity impacts are so significant that the potential conflict warrants refusal of the application.

Conclusion

While the applicant has attempted to reduce the adverse impacts of the proposed development on the amenity and character of the locality by firstly, amending the application by deleting the character and leadership training resulting in a significant decrease in activities to be undertaken within the Church building and secondly by agreeing to incorporating mitigating measures into the design of the development, the Tribunal is not satisfied that mere compliance with the Noise Regulations is sufficient, in this instance, to mitigate the adverse impacts of noise emissions from the proposed development on the existing amenity of the locality. The sources of potential noise emissions that may at times be audible at the surrounding residences and to users of the bridle trails are considered to be discordant with the character of the locality and therefore, the degree of impact on the locality is considered to be such the proposed development warrants refusal. Further, the Tribunal in considering the circumstances of this case, does not consider that the proposed development is consistent with the objectives of the planning framework as the proposed development will adversely impact on the residential living and equine character of the residential and stable policy area and therefore, in the interest of orderly and proper planning declines to exercise discretion to approve the proposed development. Consequently the proposed development warrants refusal.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER