HALL and SHIRE OF AUGUSTA-MARGARET RIVER - [2015] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HALL and SHIRE OF AUGUSTA-MARGARET RIVER [2015] WASAT 7

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 2 AND 11 DECEMBER 2014

DELIVERED : 11 DECEMBER 2014

PUBLISHED : 29 JANUARY 2015

FILE NO/S: DR 181 of 2014

BETWEEN: CLAIRE HALL
Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent

Catchwords:

Town planning Development application Refusal - Short term holiday accommodation Holiday house Holiday house (large) Ancillary accommodation - Whether proposal would have unacceptable adverse impact on amenity having regard to design and siting of proposal and also to proposed management plan Complaints Noise Amenity - Management plan Approval not permanent Tiered time limited approvals

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
Shire of Augusta-Margaret River Local Planning Scheme No 1, cl 5.26, cl 5.26.1, cl 5.26.3, cl 5.26.4

Result:

Application for review allowed
Development approval granted subject to various conditions

Summary of Tribunal's decision:

This matter involved an application for review of the refusal of a development application for the use of an existing dwelling and ancillary dwelling 'granny flat' as a holiday house (large) at No 53 (Lot 23) Baudin Drive, Gnarabup. In the late 1990s, the house and ancillary dwelling were constructed and since 1999, both buildings have been used as short term holiday accommodation.
The use of dwellings for short term holiday accommodation was common practice in the coastal towns of the Shire of Augusta-Margaret River. It was not until the Shire of Augusta-Margaret River Local Planning Scheme No 1 was gazetted in September 2010 that approval was required by a planning scheme. Despite the regular use of the dwelling and the 'granny flat' for short term holiday accommodation, the use did not have 'nonconforming' use rights. In 2011, the Shire of Augusta-Margaret River wrote to the applicant advising of the need for formal planning approval. No further action was taken until 2013 when a series of complaints from an adjoining neighbour ultimately led to the Shire of Augusta-Margaret River issuing a directions notice in November 2013 requiring the applicant to stop using the property as a holiday house.
The applicant then formally applied for planning approval, which was refused. The matter was referred to mediation where a modified proposal deleting the 'granny flat' from the application was submitted to the Shire of Augusta-Margaret River. The modified proposal was refused and the application before the Tribunal was consequently limited to the use of the main dwelling as a holiday house (large).
The issue before the Tribunal was whether the proposal would have an unacceptable adverse impact on amenity, having regard to the design and siting of the proposal and also to the proposed management plan.
From the evidence presented, the Tribunal concluded that the amenity problems arose because of the lack of adequate management. Most of the complaints came from the owner of an adjoining dwelling built in close proximity to the 'granny flat'. The Tribunal concluded that the amenity problems may have been increased by the use of the 'granny flat', either by itself or together with the main dwelling.
The Tribunal found that this application was distinguishable from some previous cases because the proposal would not be unexpected in this locality. Clause 5.26.4 of the Shire of Augusta-Margaret River Local Planning Scheme No 1 stated, in part, 'Holiday houses are generally considered appropriate within coastal communities of the local government area'.
Since the complaints were lodged, two variables had changed: the addition of a management plan which was consistent with approved management plans, and the design siting issues had been reduced by the elimination of the 'granny flat' the closest potential amenity conflict from the proposal.
The Tribunal determined that this property, if properly managed, would be capable of operating as a large holiday house in this locality without unacceptable adverse impacts on amenity. The Tribunal was satisfied that the proposal was consistent with the Shire of Augusta-Margaret River Local Planning Scheme No 1 and the policy, especially since this initial approval is, as required by the planning framework, limited to 12 months.
The following are the reasons given orally at the hearing and edited in minor respects from the transcript to give clarity.

Category: B

Representation:

Counsel:

Applicant: Mr C Hall (Acting as Agent)
Respondent: Mr M Phillips (Acting as Agent)

Solicitors:

Applicant: N/A
Respondent: Shire of AugustaMargaret River

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application by Ms Claire Hall (applicant) where, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), there is a right of review against the decision of the Shire of Augusta‑Margaret River (Shire, Council or respondent) to refuse to approve an application to use an existing dwelling and granny flat as a holiday house. Since lodging the application for review, the use of the granny flat has been deleted from the review.
The applicant jointly owns, with her husband, a two storey dwelling and single storey granny flat on No 53 (Lot 23) Baudin Drive, Gnarabup (site or review site). In the late 1990s, the house and ancillary dwelling were constructed and since 1999 both buildings have been used as short term holiday accommodation. The applicant argued that she and her husband were told that planning approval was not required for a holiday house in Gnarabup, and advised that in around 2000 they received a letter from the Council confirming that approval was not required. The applicant has been unable to locate the letter. A 2003 report to Council, which will be discussed in more detail later, provides some anecdotal support for the applicant's position.

Site and locality

The site has an area of 2,097m²and has a 12 metre fall from the eastern boundary (front) to the western boundary (rear). The granny flat is located towards the rear of the site.
The main house has a verandah on the west side which connects to a wide sundeck on the northern end of the house. From the plans, this deck is approximately 10 to 11 metres above the lowest level of the site. From scaling the plans, the western edge of the deck is approximately 33 metres from the rear boundary.
The section of Baudin Drive containing the review site overlooks Gnarabup, with unrestricted views of the ocean to the west. There is undeveloped reserve land to the east. The adjoining lot to the north is vacant. That vacant lot connects directly to another vacant lot to the west in Freycinet Way. The two undeveloped lots create a de facto (and trespassing) shortcut from Baudin Drive to Freycinet Way and ultimately to the beach. The objecting neighbour's house is immediately west of the review site and adjoins the vacant lot in Freycinet Way. The objecting neighbour's house is built to the rear of the Freycinet Way lot, which enables views over Freycinet Way and houses to the west. The objecting neighbour has a swimming pool next to the house on the north side; that is, adjoining the vacant lot.
A characteristic of the locality is the lack of fences.
During the hearing, the respondent submitted an aerial photograph of the part of Gnarabup containing the review site ‑ specifically an area containing the looping Baudin Drive to the west, north and east, and bounded by Riedle Drive to the south. The locality plan identified all the houses that had been approved for the use as a 'holiday house'. Almost one quarter of the developed lots have approvals for use as a holiday home.
On Monday, 1 December 2014, the Tribunal had the benefit of a viewing of the site and locality in the company of the parties.

History

The owners do not live in the house, but the applicant stated:
We spend a great deal of time at Margaret River ourselves to make sure our property is well cared for.
The applicant acknowledges that, without planning approval, the premises have been used for short term accommodation for over a decade.
It appears from the evidence that for many years the use of the premises for short term accommodation did not cause problems. The first confirmed contact to the applicant by the respondent advising of the need for planning approval was made in April 2011.
No further action was taken until 2013 when a series of complaints from an adjoining neighbour ultimately led to the Shire issuing a directions notice in November 2013 requiring the applicant to stop using the property as a holiday house.
In January 2014, the applicant lodged an application for planning approval to use the premises for short stay accommodation. This application was refused by the respondent on 13 May 2014 under delegated authority.
On 9 June 2014, the applicant lodged an application for review of the respondent's decision. The Tribunal ordered a mediation conference which was held in July 2014 and resulted in a s 31 order. The s 31 order required reconsideration of a modified proposal which included a management plan. The modified proposal also deleted the use of the granny flat from the proposal. The matter was reconsidered by the Council on 27 August 2014 which supported the original refusal made under delegation. During the hearing, the parties confirmed that the matter before the Tribunal was a modified proposal that only sought use of the main house for short stay accommodation.
Between the period of the application and the original refusal in May 2014, the Shire received further complaints and on 24 April 2014 issued a prosecution notice against the applicant, who pleaded guilty in the Margaret River Magistrates Court on 23 June 2014.
The reference to the directions notice and prosecution provides some historical context but has no bearing on the decision to be made by the Tribunal. The Tribunal's decision will be based on the planning framework and the merits of the proposal.

Planning framework

The site is zoned Residential R5 under the Shire of Augusta‑Margaret River Local Planning Scheme No 1 (LPS 1).
The proposed use is described as 'holiday house'. The parties agreed the following planning framework:
Local Planning Scheme No. 1
…
20.Under LPS 1 a holiday house is defined to mean:
'"holiday house" means a single house (excluding Ancillary Accommodation) which might also be used from time to time for short stay accommodation for no more than six (6) people but does not include a bed and breakfast, guesthouse, chalet and short stay accommodation unit.'
and holiday house (large) is defined to mean:
'"holiday house (Large)" means premises conforming to the definition of "Holiday House" with the exception that the premises provide short stay accommodation for more than 6 people but not more than 12 at any one time.'
21.A holiday house is classified as an 'A' use within the Residential zone under Table 1 of LPS 1. This means that the use is not permitted unless the local government exercises its discretion and gives notice of the Proposal.
…
23.Clause 10.2 of LPS 1 provides for certain matters which the local government is to consider when assessing an application for planning approval. The mattes which are relevant to the Proposal are:
(a)The aims and provisions of the local planning scheme;
(b)The requirements of orderly and proper planning;
(c)Any relevant policy or strategy of the Commission;
(d)Any local planning policy;
(e)Any social issues that have an effect on the amenity of the locality; and
(f)The preservation of the amenity of the locality.
24.The purpose of the Residential zone, at clause 4.2.4.1 of LPS 1, is:
'To provide for a range of urban residential environments within established settlements in the Scheme area and to conserve and enhance the amenity and sense of place of those residential areas.'
25.Under LPS 1 amenity is defined to mean:
'"amenity" means all those factors which combine to form the character of an area and include the present and likely future amenity.'
26.Clause 5.26.1 of LPS 1 requires:
'Applications for Planning approval for holiday houses will be required to demonstrate to the satisfaction of the local government that a holiday house activity will be so managed as to ensure that it will not cause nuisance or annoyance to the owners of adjoining or nearby properties.'
…
Local Planning Policy 20 ‑ Holiday Houses
29.LPP 20 relates specifically to the Proposal as it provides guidelines for assessing applications for a holiday house.
30.The objectives of LPP 20 are:
'1.To provide clear guidelines on the appropriate location of Holiday Houses and Holiday Houses (Large) in the Shire.
2.To encourage the development of holiday houses in areas of high tourist amenity and attraction and in proximity to relevant services.
3.To ensure that Holiday Houses and Holiday Houses (Large) are appropriately sited, sized and designed to be consistent with the character and amenity of surrounding land uses.
4.To ensure that the primacy, affordability and use of the broader residential areas of the Shire for residential purposes is maintained.
5.To acknowledge the complementary role that holiday houses play in the tourist accommodation sector in the Shire.'
31.LPP 20 provides for distinct policy areas with specific matters for consideration for holiday house applications in those areas. The Proposal is within Policy Area 1 ‑ Coastal (Coastal Area).
32.LPP 20 provides for supporting holiday houses applications in the Coastal Area where:
"(a)Applications meet the standard development requirements set out in Provisions 17 & 18 of this policy and;
(b)The operation of the use has not resulted in adverse impacts on the amenity of neighbouring properties or the surrounding area and;
(c)The proposal complies with the objectives and provisions of the zone, other provisions of the Scheme and other relevant Shire policy."
…
34.LPP 20 recognises the greater potential for impacts from larger holiday houses and Provision 17 imposes the following additional considerations:
"In addition to the other provisions of this policy any applications for holiday house large will:
(a)Be required to provide a level of information that maybe [sic] in greater detail than for a 'holiday house', to enable a comprehensive assessment of potential impacts [on] the local amenity[;]
(b)Be subject to a greater degree of scrutiny to ensure the proposal is consistent with the amenity objectives and character of the surrounding area and;
(c)Need to ensure that the larger number of persons than would ordinarily occupy a residential dwelling doesn't introduce an unacceptable risk of impacts on the amenity and character of the local environment."
…
WAPC Guidelines ‑ Holiday Homes ‑ short stay use of residential dwellings
36.The Guidelines were preprepared in response to the issue of impact on neighbouring residential amenity caused by holiday houses. Paragraph 2.4 of the Guidelines states:
'A key concern with respect to the occupation of dwellings as holiday homes is to ensure that any such uses will not adversely impact on residential amenity currently enjoyed by residents in surrounding properties. Any activities that result in a loss of enjoyment by neighbouring properties, for instance, unacceptable levels of noise, will be considered a breach of this approval.'
Furthermore paragraph 3.1 states:
'A holiday home management plan should be submitted as part of the planning application and prior to the commencement of business. In the case of an established business, the management plan should be submitted to local government within 12 months from the adoption of the local planning policy.'
…
Prior to the existing Scheme, there was a range of relevant Schemes which, in a report to Council dated 24 March 2003, included Schemes 11 and 16 to 19. Under the previous planning framework there was no retrospective approval facility and no provision for holiday houses, which would presumably have been covered by 'use not listed provisions'. A relevant extract from that report is as follows:
… There are no other provisions in existing Town Planning Schemes, which provide support for the view that there was an intention to control holiday houses.
The provisions of the proposed new District Town Planning Scheme No. 1 are, however, much more specific and will not be subject to the same interpretational weakness. Of course, the provisions of existing schemes can be strengthened by way of Amendments.
Accepting, for the purpose of this report, that there is sufficient head of power to justify taking control of holiday houses, then the issue of what status is accorded to established premises used in this way must be addressed. Up to the present, the author is advised that enquirers have been advised that no approvals are required to use dwellings as holiday houses. Doubtless others have commenced without reference to Council.
To now suggest that the operators of holiday houses be advised that their use is in conflict with the Schemes would represent a total about-face on the position previously advised and because the Council has no power within its Schemes to grant retrospective approvals, it would be pointless seeking planning applications from them to regularise the situation.
Enquiries of the Denmark Shire reveal that when its control over holiday houses was introduced, there was no retrospective action taken on holiday house premises already established at that date. A similar position would seem to be the only practical way to deal with established holiday houses.
In the evidence submitted, it is not clear beyond doubt what specific action Council decided to take on existing houses. Council resolutions on 24 March 2003 included adopting the policy and taking control of holiday houses under the then proposed LPS 1. The resolution required all such proposals from the date of the resolution to be approved by Council. It was not clear whether 'proposals' included existing uses.
The above background provides some support for the applicant's mistaken belief that planning approval was not required.
However, there is no question that under the current planning framework approval for the proposed use is required. The use was not legally granted and there is no supportable argument for non-conforming use rights. The current planning framework also facilitates retrospective approval although, to some extent, the retrospective approval is irrelevant because the planning framework only provides for a tiered series of temporary approvals. The initial approval is generally for 12 months and then, in general, the first renewal is for three years with subsequent renewals being for five years.

Issue

The respondent submitted a long list of compliance issues identifying various specific elements of the planning framework as well as orderly and proper planning. During the hearing, it became apparent that the central issue was the question of adverse impact on amenity. In consideration of that issue, two key elements arose:
1)whether the proposed management plan was sufficient to address amenity concerns; and
2)whether the design and siting of the proposal was so adverse as to make any management plan ineffective.
Therefore, the issue for the Tribunal to determine is whether the proposal will have an unacceptable adverse impact on amenity having regard to the design and siting of the proposal and also the to the proposed management plan.

The applicant's case

The applicant argued that she and her husband have successfully operated the premises as a holiday house since December 1999. They observe that the Council's statement of issues, facts and contentions records only four complaints and that one of those complaints referred to use of the house on 28 February 2014 when it was occupied by the applicant's son. In that instance, the applicant acknowledges the complaint was valid, but argues that the use of the house was as a family dwelling and not as a holiday house.
The applicant and her husband also argued that 'all complaints[R1] were made after the November 2011 bushfire, which destroyed vegetation which previously had been acting as a visual and sound barrier between No 53 Baudin Drive and Lot 45 Freycinet Way. In response, the applicants stated:
We have spent a great deal of money and time replacing trees and shrubs … They have grown very well but it will take a bit more time to get back to where we were.
In response to the objections, the applicant argued that even though after advertising there were two objections, both objections came from the same house: the rear neighbours in Freycinet Way. This is consistent with the applicant's application for review where she stated that in 14 years of operation she had only received six complaints, and five were from the objecting rear neighbour. The applicant believes that it was the use of the granny flat that had generated most of the complaints.
The Tribunal observes there is some logic to the argument that the granny flat is a problem; it is much closer to the objecting neighbour's house. Furthermore, the living room and veranda of the granny flat are on the western side; that is, the side closest to the neighbour.
To address this problem the applicant modified the proposal and deleted the use of the granny flat from the application for use as a holiday house.
The applicant and her husband acknowledged that their management had traditionally been quite informal and trusting. They proceeded as normal, based on the belief that planning approval was not required and that the few complaints they had received had been resolved. Their belief that planning approval was not required seems to be based on reasonably credible evidence that prior to March 2003 they had received at least verbal advice that planning approval would not be required for their existing operation.
It was not until April 2011, after 12 years of operation, that the respondent formally contacted the applicant and advised of the need for planning approval. The applicant could offer no explanation for failing to act on that advice, other than it was inconsistent with what they recollected of previous advice from the Council.
Events then overtook the applicant and her husband, and they have since lodged a formal application and had it refused. During the hearing, the applicant indicated that she and her husband are now fully aware of the potential adverse impact on amenity of their proposed holiday house whereas before she and her husband had been passive property managers allowing matters to proceed as normal on the basis there had been so few complaints in 14 years. The applicant and her husband argued they are now doing everything possible to comply with the Council's planning requirements. To that extent, they have worked with Council staff to prepare a management plan that they believe had the support of the staff member they dealt with and was based on approved management plans.
The applicant and her husband note that at least one other holiday house in the locality has been renewed after complaints, on the basis of a properly prepared management plan. She and her husband argue that the respondent's refusal has given them neither an opportunity to demonstrate that they can implement the management plan, nor an opportunity to test that the reduced proposal without the use of the granny flat can achieve amenity objectives.
The applicant and her husband concluded by arguing that they are strongly motivated to 'get things right on the basis that we need the income and we want to continue to maintain good relationships with our neighbours'.

The respondent's case

The respondent acknowledged that holiday houses are widespread throughout the Shire and that under previous Schemes they were unregulated. In referring to the 2003 report to Council, the respondent agreed that the Shire had acknowledged some potential difficulties in dealing with existing holiday houses. However, the holiday houses existing prior to the current planning Scheme did not have non‑conforming use rights because their use had not been lawfully approved.
All holiday houses, including existing non‑approved houses, are now covered by two specific requirements: clause 5.26 of LPS 1 and Shire of Augusta‑Margaret River Local Planning Policy 20 (LPP 20). In the opening statements during the hearing, the respondent argued that proposals for holiday houses largely turn on management.
Clause 5.26.1 of LPS 1 requires the applicant to demonstrate that the holiday house activity will be managed so as to ensure it will not cause nuisance. Clause 5.26.3 of LPS 1 provides that approval is time limited and that renewal is dependent on good management since this clause states that 'if the local government has received complaints regarding the holiday house activity, a further approval may not be granted'.
These requirements are reinforced in LPP 20 and are consistent with the Western Australian Planning Commission's guidelines.
Ms Jennifer Tattum, a planning expert and employee of the respondent, stated:
The complaints received, neighbour submissions, findings of the Magistrates Court and the applicant's own admissions provide evidence that the site has not been appropriately managed and that management has been unable to operate the use without resulting in adverse impacts on neighbour amenity.
It was Ms Tattum's assessment that the applicant's proposed management plan is not significantly different from the historical management of the property. She stated:
Given the history of mismanagement and the fact that many of the proposed methods … were already in operation over a long period of time and failed, I am not satisfied that the requirements of clause 5.26.1 of LPS 1 have been met.
During the hearing, Ms Tattum noted that, in the Council's draft 'without prejudice' conditions, one condition limited approval to six persons. Ms Tattum explained that to accommodate more than six persons changes the use from 'holiday house' to 'holiday house (large)' and that large holiday houses are subject to more stringent conditions. Clause 17 of LPP 20 provides the higher standards, and these generally come back to a higher level of scrutiny and the 'need to ensure that the larger number of persons than would ordinarily occupy a residential dwelling doesn't introduce an unacceptable risk of impacts on the amenity and character of the local environment'.
To support its position on the historical adverse impact on amenity, the respondent presented evidence from the western adjoining neighbour, Ms Robyn Beutel. In her statement and during the hearing, Ms Beutel described in detail the history of adverse impact on amenity, including noise and trespassing. She acknowledged that formal complaints had only been lodged with the Shire in the last few years. Ms Beutel stated that it was because of the desire to maintain good relationships with her neighbour that she had tolerated the nuisance in the first years. It was her opinion that the problems increased after the global financial crisis when the nature of the clientele seemed to change, and that problems further increased after the bushfires when the destruction of the natural vegetation on the adjoining lots made trespassing easier[R2] .
During the hearing, documented complaints were examined. There was no doubt from the evidence that the neighbour had suffered an adverse impact on amenity.
Finally, Ms Tattum argued that even if the new management plan was assessed as being an improvement on historical management and potentially acceptable, the proposal must still fail the amenity provisions because of the siting, design and location of the proposal. It was her argument that no amount of good management could overcome the physical limitations of the design and siting of the proposal. The house is located high on the hill with large external decks where noise will inevitably adversely impact on the amenity of neighbours.
Ms Tattum and counsel for the respondent referred to several Tribunal cases where the Tribunal had refused to approve similar proposals due to the adverse impact on amenity and/or the lack of adequate management. Having examined the cases referred to by the respondent, the Tribunal does not find it necessary to analyse this proposal with specific reference to previous cases. The principles of amenity and the need for adequate management are clearly applicable to this case. It is the particular evidence of this case that will determine the outcome.

Findings and conclusion

The central concern in this review is whether the proposed holiday house (large) will have an adverse impact on the existing amenity of this residential neighbourhood.
It is significant to note, and possibly distinguish from some previous cases, that this proposal is not unexpected in this locality. First of all, clause 5.26 of LPS 1 specifically deals with the development of holiday houses. There are four subclauses; the final clause, 5.26.4, states as follows:
Holiday houses are generally considered appropriate within coastal communities of the local government area or within close proximity to major tourist attractions but are not considered appropriate within the residential districts of the inland settlements.
The proposal is within a coastal community and is therefore, according to the current local planning scheme, considered to be 'generally appropriate'.
This provision of the scheme is reinforced in the relevant policy, LPP 20 'holiday houses'.
LPP 20's 'Policy Context' states:
The use of single residential dwellings for short-stay purposes (holiday houses) has traditionally been an important component of the tourist accommodation supply in the Shire of Augusta‑Margaret River. This is evidenced by holiday houses supplying approximately 9% of the total accommodation capacity in the Shire whereby approximately 700 of the 7500 hospitality beds are within holiday houses …
Holiday houses are mainly concentrated in the coastal settlements of the Shire in addition to the Margaret River townsite …
and, later, in referring to Policy Area 1 ‑ Coastal which specifically includes Gnarabup, the policy area objective states:
To encourage the development of Holiday Houses and Holiday Houses (large) in the coastal settlements and areas of the Shire.
This context is important because it establishes that the proposed use may reasonably be anticipated in the locality. Furthermore, from evidence submitted during the hearing and described earlier in these reasons, approximately 25% of dwellings in the immediate locality have been approved as holiday houses.
Although the above provisions provide context, they do not override the fundamental requirements to protect amenity. During the hearing, it became clear that the two critical aspects for assessing the protection of amenity were:
1)management of the use through an approved management plan; and
2)whether the siting and design were so flawed that management would be unable to overcome the physical limitations for the proposal.
On both these matters there was no common ground between the parties or concessions.
Dealing first with management: it is the respondent's position that through historical evidence, the applicant and her husband have demonstrated that they are incapable of managing this property to provide an acceptable standard of amenity for neighbours. During the hearing, the respondent argued that the proposed management plan was not sufficiently distinguishable from the existing management plan or practices. On that basis, the respondent concluded that the management of the property, even with the proposed management plan, would continue to be inadequate and would result in loss of amenity for neighbours.
On this matter the Tribunal does not agree. The evidence indicates that the applicant and her husband have in the past run an informal management plan and it has not been based on models acceptable to the respondent. The proposed management plan has some significant changes: a local manager; a larger bond; restrictions on activities; checking the guests in; and an identifiable management contact number at the front of the property. Furthermore, the Tribunal does not accept, on the evidence produced, that there has been a long history of inadequate management. There were recent obviously unacceptable instances of trespassing[R3] . However, since December 1999 there have been few documented problems. Furthermore, the advertising of the proposal only attracted objections from one property.
It was clear from the evidence in the hearing that the applicant and her husband are now aware of the potential amenity conflicts and the Tribunal is satisfied that they are genuine in their commitment to ensuring acceptable amenity impacts on their neighbours. There was no documented approved management plan in the past, so the applicant cannot reasonably be described as being unable to adequately manage the property to acceptable standards. The applicant's proposed management plan is consistent with similar approved management plans. Given that an approval on this occasion would be the first approval and would therefore be limited to 12 months; it is not reasonable to conclude that lack of adequate management is a ground to refuse the proposal.
However, that is not the only problem facing the applicant. The respondent argued strongly that even if the management plan was acceptable, the proposal is still fundamentally flawed because the design and siting of the dwelling will inevitably lead to adverse noise impacts on neighbours. Although this matter was examined during the hearing in some depth, the Tribunal is not convinced. The neighbour referred to fruit splattered against their wall. However, in the proposal before the Tribunal, the 'granny flat' which is much closer to the objecting neighbour's house, is not part of the proposal. The veranda of the main dwelling is about 35 metres away from the neighbour's house and this distance does not seem to pose a fundamental siting problem. While it is possible to acknowledge the potential problem of an exposed external deck high above the valley causing noise problems when the deck is in use, only one property objected to the proposal. In this case, it is not necessary for the local residents to speculate on what may happen, since the potential problem has existed since the end of 1999. No other properties down in the valley objected. The aerial photograph submitted indicates that most of the approved holiday homes are in much closer proximity to neighbours than the proposed holiday house. It was not possible to determine how many of the approved holiday houses had external living areas. The respondent presented no evidence on comparison between the design of the proposal and the approved holiday houses. The respondent relied on speculation, and the few documented complaints, that the siting and design would result in adverse amenity impacts.
From the evidence presented to the Tribunal, it is reasonable to conclude that the problems have arisen out of the applicant's lack of awareness of the need for a formally documented and approved management plan and the likely problems of trying to manage guests by remote control over 300 kilometres away from potential problems.
Since the prosecution, two variables have changed: the addition of a management plan which is consistent with approved management plans and includes a local manager, and the design siting issues have been reduced by eliminating the granny flat ‑ the closest potential amenity conflict ‑ from the proposal.
This property, if properly managed, should be capable of operating as a large holiday house in this locality without unacceptable adverse impacts on amenity. The Tribunal is satisfied that the proposal is consistent with the Scheme and LPP 20, especially since this initial approval is, as required by the planning framework, limited to 12 months.

Draft conditions

As required by the Tribunal, the respondent submitted 'without prejudice' draft conditions. The applicant objected to only one of the conditions ‑ condition 3 ‑ which limited occupancy to no more than six persons. The proposal is a four bedroom house with four queen‑sized beds. The proposal is for a holiday house (large). The condition changes the approval to a holiday house. LPP 20 identifies the amenity risks associated with higher occupancy of a large holiday house and specifically sets higher standards for assessment and scrutiny.
Nothing has arisen out of consideration of management, design and siting to suggest that the proposal cannot reasonably operate as a holiday house (large). To some extent, the applicant and her husband are taking a higher risk by arguing that they want to proceed without condition 3. They will need to reapply for an extension beyond 12 months, and are aware that the planning framework will subject them to higher standards and scrutiny for a holiday house (large) than would be the case for a six person holiday house use.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse to grant planning consent for the proposed use of the main dwelling as holiday house (large) on lot 23 (house No 53) Baudin drive, Gnarabup is set aside and a decision is substituted that development approval is granted for the use of the main dwelling as a holiday house (large) subject to -
(i)The holiday house is to be carried out in compliance with the plans P1 and P2 received at the Shire on 24 January2014 (plans labelled A1 and A2, dated 17 March 1997).
(ii)The approval is limited to a period of 12 months from the date of approval.
(iii)The holiday house shall not be occupied by more than 10 people at any one time.
(iv)A manager or a contactable employee of the manager that permanently resides no greater than an hour drive from 53 (Lot 23) Baudin Drive, Gnarabup (Site) shall be nominated to manage the holiday house and this person shall attend to any callout within 1 hour of a reported incident.
(v)The manager or contactable employee of the manager shall be retained at all times during the use of the Site as a holiday house and if, at any time, there is no appointed manager, the holiday house use shall cease until a manager is appointed.
(vi)The 24 hour contact details of the manager and the owner of the holiday house shall be located on the Site so as to be visible from the nearest street frontage.
(vii)All vehicles and boats connected with the holiday house shall be parked within the boundaries of the Site.
(viii)An emergency response plan (showing fire escape routes and local evacuation locations) and a fire management plan shall be displaced in a conspicuous location within the holiday house at all times.
(ix)Amplified music shall not be played outside of the holiday house between the hours of 10 pm and 10 am.
(x)'House Rules' shall be developed consistent with key elements of the Shire's Holiday Rental Code of Conduct prior to the commencement of sue and shall be provided to all guests and displayed within a prominent position within the holiday house.
(xi)A management plan shall be prepared to the satisfaction of the Shire prior to the commencement of the use and shall be upheld for the duration of the holiday house use.
(xii)The building approved for ancillary accommodation on the Site shall not be used for short stay accommodation or permanent habitation while the dwelling is being used as a holiday house.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER

[R1]

[R2]

[R3]