GOBLE and SHIRE OF KALAMUNDA

[2005] WASAT 308

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   GOBLE and SHIRE OF KALAMUNDA [2005] WASAT 308

MEMBER:   MR J JORDAN (MEMBER)

HEARD:   28 JULY 2005

23 AUGUST 2005

DELIVERED          :   29 NOVEMBER 2005

FILE NO/S:   DR 385 of 2005

BETWEEN:   DEBORAH GOBLE

Applicant

AND

SHIRE OF KALAMUNDA
Respondent

Catchwords:

Development refusal - Out of school hours care facility - Corner lot in residential zone - Primary school opposite - Hours of operation - Impact on amenity - Traffic

Legislation:

Town Planning and Development Act 1928 (WA),

Result:

1. Conditional approval is granted for an out of school hours facility to operate during school terms, but not for the remainder of the year

Category:    B

Representation:

Counsel:

Applicant:     Luigi Di Virgilio & Deborah Goble

Respondent:     David Tomlinson

Solicitors:

Applicant:     Self-represented

Respondent:     As Agent

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Ms Deborah Goble applied to the Shire of Kalamunda for planning approval for a purpose‑built out of school hours care facility at 17 Kiandra Way, corner Wycombe Road, High Wycombe.  The proposal is for the facility to open before school so that children can be cared for until it is time for them to be taken to their primary school or pre‑primary.  The facility would closed between 8.30 am and 3 pm, after which time the children would be collected from their school and be cared for until collected by their parents.  The facility would close at 6 pm.  The proposal was for the centre to be open all day during school holidays.  At the front of the premises would be parking bays and a curved driveway where vehicles would enter from Kiandra Way and leave via Wycombe Road.

2. The site is opposite a primary school which also includes a pre‑primary and kindergarten.  After inviting comments from neighbours, the Shire of Kalamunda refused the application because of concerns about additional traffic, hours of operation, noise and parking having an adverse impact on the amenity of the surrounding locality.

3. Mrs Goble stressed the facility would not have the same effect as a child care centre because of the absence of infants and the facilities provided would ensure controlled behaviour of the children.  Mrs Goble disagreed with the Shire on traffic generation, saying the vehicles bringing children would otherwise have been bringing them to the local primary school and pre‑primary.

4. The development is different from a child care centre because of the absence of children during school hours.  The amenity of the locality is particularly influenced by the presence of the primary school and it is agreed with Mrs Goble that the use would not add noticeably to the impact that the school has.

5. The Tribunal has therefore determined that the development can be granted conditional approval on the basis that it operates only as an out of school hours care facility and not as a child care centre.

Application

1. This is an application by Mrs Deborah Goble for a review of the refusal by the Shire of Kalamunda (respondent) to grant planning consent for the proposed development of what is described as an out of school hours care facility (facility) at 17 Kiandra Way, High Wycombe (subject land).

2. The subject land is at the north‑east corner of a T‑junction formed where Wycombe Road meets Kiandra Way.  To the north‑east and the rear of the subject land and across Wycombe Road are houses on residential zoned lots.  To the north‑west across Kiandra Way is the High Wycombe Primary School, which includes a pre‑primary and a kindergarten and has, according to the evidence given, about 500 pupils.

3. The applicant proposes that the existing dwelling on the subject land be demolished and replaced with the facility.  The proposed facility would accommodate 39 children of pre‑primary and primary school age, plus three staff members.  There would be no babies or toddlers.  Within the building would be a room used as a theatre, a computer room and multi‑purpose and games areas.  A kitchen is included as are usual toilet facilities.  Outside at the rear and the side of the facility are play areas.  In the front yard are a driveway and parking. 

4. The initial application proposed a driveway which had access and egress to Kiandra Way with parking either side.  This was refused by the respondent in February 2005.  After discussions with Shire officers, the applicant prepared the current proposal which includes a curved driveway with an access from Kiandra Way and an exit onto Wycombe Road.  This driveway would have a "drop off zone" and would also provide access to four parking bays and a disabled parking bay.  The amended proposal was presented to the respondent at its May 2005 meeting.  The respondent again refused the application for the reason:

   "The proposal would have a detrimental impact on the amenity of the surrounding residential area having regard to additional traffic, hours of operation, noise and parking."

Planning controls

1. The subject land is zoned Residential R12.5 in Shire of Kalamunda District Town Planning Scheme No 2 (DPS 2).  The respondent considered the matter as fitting within Zoning Table use class "child care centre (including day care and family care)".  This use in a residential zone is designated "AA" which mean that it is a use not permitted unless approval is granted by the respondent.

2. DPS 2 does not provide a definition of "child care centre" and neither does it define "day care" or family care".  The Community Services (Child Care) Regulations 2002 (WA) include "child care service", which is interpreted as specifically excluding "outside school hours care service" as defined in the Community Services (Outside School Hours Care) Regulations 2002 (WA), which definition is "a child care service provided outside school hours for children of school age … ".  The parties agreed at the hearing, however, that this is the most appropriate class in which to place the use, particularly in light of the need to refer to both sets of regulations for comparison of standards for facilities and to the respondent's "Child Care Centre Policy" (policy) for guidance on child care development matters relevant to the application.  Were the proposal to be considered as a "Use Not Mentioned", under cl 3.5 of DPS 2 such uses are deemed to be prohibited unless approval is granted by council.  That is, treated as an "AA " use.

3. Under the policy, the objectives include:

   "To minimise the impacts of new child care centres on the amenity, form and function of existing neighbourhood localities and the levels of service available to the community."

4. The policy lists as suitable locations:

   "Sites for new child care centres are preferred to be located in close proximity to community facilities, local centre, schools and public transport networks."

Discussion

1. There was no dispute between the parties that the space and facilities provided were sufficient for this number of children of these ages for this purpose.  There was also no dispute that the number of parking bays provided was consistent with the requirements of the policy.

2. The applicant's evidence was that children who attend the primary school and pre‑primary, and perhaps some children from other primary schools in the locality, would be brought to the site by their parents, or collected from those schools, prior to school commencing.  At the appropriate time, the children would then be delivered by the staff of the facility to the school or pre‑primary they attended.  The children would be gone from the facility by 8.30 am.  When school finished, children would be either collected by staff and walked across the road, or collected from other schools by the facility's van.  The van would also collect children who remained at the school participating in after hours school activities.  Parents would subsequently pick up their children at various times until the facility closed at 6 pm.

3. When the proposed facility was advertised, the respondent received 10 letters of objection and two of conditional non‑objection.  The main reasons for objection related to traffic movement, decrease in property values, impact on amenity and safety concerns arising from increased conflict of vehicles and children.  Mr David Tomlinson, a planner for the respondent who appeared as a witness, referred to cl 5.10.1 of DPS  2 which requires that when considering an application, the nature of the development and its relationship to development of other land within the locality must be considered.

4. An objector, Mrs Eileen Stark, who has lived two doors away for some 37 years, appeared as a witness.  She clearly expressed her opinions that the increased traffic movements would have greater capacity for conflict and the disturbance from the increase in traffic would last beyond the 40 weeks of the year that the primary school operates.  Mr Tomlinson submitted that the proposed facility would intensify noise and traffic movements beyond that generated by a single dwelling on the same site and would extend the pick up and drop off times associated with the school opposite.  The additional disturbance would be exacerbated by the noise associated with the opening and closing of car doors.

5. The applicant argued that the proposed hours of operation will not impact on immediate neighbours as there is traffic from commuters travelling to and from work at these times, and the only difference is that some of vehicles will stop briefly to drop off or pick up their children from the centre. 

6. Mrs Stark said the noise from the children would have an impact on her amenity and she cited as an example her success in having a basketball ring removed from the playing area directly opposite her house.  She argued that there are other facilities available in the district for this type of use, and that land zoned residential should be used for housing. 

7. In response, the applicant stressed that while childcare centre regulations provide a guideline, the centre will not have children younger than pre‑school.  She argued that while some child care facilities generate greater noise than a standard residential property, this is an out of school hours care service, different from a child care centre and the structured programs, facilities and staff supervision would result in little noise that would disturb the amenity of the locality.  Use would be made of the High Wycombe Primary School oval for activities such as cricket or football.

8. As ordered by the Tribunal, the respondent provided a schedule of conditions without prejudice to its position.  One of the conditions required that the site be used between 7 am and 8.30 am, and 3 pm and 6 pm.  The applicant's preference is a 6.30 am start but she said she would accept 7 am.

9. Of more concern to her was the condition that the use not operate during school holidays.  The respondent's condition allows use during public holidays in school term and staff development days, but not weekends or the school holidays.  The applicant argued that it is essential the use be allowed to operate all day during school holidays.  Mr Tomlinson and Mrs Stark pointed out there are other facilities in the locality which are used for child recreation during the school holidays. 

Conclusion

1. This a purpose‑built out of school hours care facility for children of pre‑primary and primary school age only.  As such, it has quite specific operating hours associated with the care of children prior to and after school.  The Tribunal accepts that this is an identified use to be catered for with quite particular hours of operation.  The facilities provided would cater for school aged children, but it is noted they are different from the specifically defined areas for different age groups that would be generally found in standard child day care centres.  For the limited hours of use this would not appear to be a concern.

2. As to the impact of the use on the amenity of the locality, at least a proportion of the people attracted to the facility would in any event be attracted to the primary school over the road.  The primary school, it was submitted, has some 500 pupils and the addition of this facility is not seen to give rise to such an increase in movement in the area that this of itself constitutes a reason for refusal.  The use would extend the hours of movement, but again this is not seen to be so significant in this particular locality.

3. Mrs Stark did make the point that for some 40 weeks of the year, the residents accommodated the impact of the school on the amenity of the area.  For the remainder of the year, during school holidays, they were free of this.  The applicant's preference is to have the use continue all day during school holidays.  Such use would in effect have the facility operating as a childcare centre.  It is not clear that the facility has the internal layout and facilities sufficient to operate as such and it has not been the subject of the planning analysis required for a childcare centre.  The Tribunal is of the view that it is not appropriate that a use which would marginally add to the normal activity in the area during the school year should in fact become a feature by itself during school holidays.  Instead of contributing marginally to a much greater impact from the primary school, the impact of the facility would become a significant influence on the amenity of the locality.  The Tribunal has not been provided with evidence that in the circumstances this impact is acceptable.  From the evidence the Tribunal has accepted that there are currently operating elsewhere in the district, facilities that provide activities for school‑aged children in the school holidays.

4. While the Tribunal has concluded that there is a case for allowing this use as an out of school hours care facility during school terms, it is not convinced that it should be allowed to operate as a child care centre for the remainder of the year.

Orders

1. The application for approval of an out of school hours care facility is allowed subject to the following conditions:

   1.This approval permits the use of the subject site for out of school hours care for pre‑primary and primary school children only.  The centre may not be used for general child care without council approval.

   2.A maximum of 39 school‑aged children and three staff members may attend the site at any one time.

   3.Use of the site is restricted between 7 am – 8.30 am, and 3 pm – 6 pm Monday to Friday on school days, and 7 am – 6 pm during staff development days and pupil free days during the school term.  The use may not operate during weekends, public holidays and school holidays.

   4.The provision and maintenance of a minimum five car spaces, one of which is to be disabled bay.  All car parking areas and vehicle access ways, as shown on the plan date stamped 31 May 2005 shall be suitably constructed, sealed, marked and drained.

   5.Storm water drainage from roofed and paved areas shall be disposed of on site.

   6.The development shall be connected to reticulated sewer.

   7.Fencing fronting roads and parking areas shall be of an open style and a 1.8 metre high masonry fence is to be constructed on the side and rear common boundaries prior to the commencement of the use.

   8.A detailed landscaping plan for the landscape area depicted on the approved plan shall be submitted and approved by council's executive manager, Planning and Development Services prior to the issue of a building licence.

   9.Landscaping areas shall be planted within two months of completion of the proposed development and be maintained thereafter by the owner/occupier.

   I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MR J JORDAN, MEMBER