HARPER INVESTMENTS WA PTY LTD and PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL - [2023] WASAT 130

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HARPER INVESTMENTS WA PTY LTD and PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL [2023] WASAT 130
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MR R POVEY, MEMBER

HEARD:   1, 2, 3, 4, 22, 23, 28 AUGUST and 6 SEPTEMBER 2023
DELIVERED          :   21 DECEMBER 2023
FILE NO/S:   DR 154 of 2022
BETWEEN:   HARPER INVESTMENTS WA PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town Planning - Development Application - Day Care Centre - Inconsistency with Locational Elements of Local Policy - Amenity - Locality - Noise - Traffic safety - Need and demand - Application refused

Legislation:

Education and Care Services National Law (WA) Act 2012 (WA)
Education and Care Services National Regulations 2012 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 18, reg 18(3)(e)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(2)
State Administrative Tribunal Act 2004 (WA), s 29(3)

Result:

The application for review is dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant	:	C Wallace
Respondent	:	C Ide

Solicitors:

Applicant	:	Lavan
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Georgiou Corporation Holdings Pty Ltd and City of Stirling [2009] WASAT 51
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
O'Neill and City of Joondalup [2021] WASAT 107
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sharon Property Pty Ltd and Presiding Member of the Metro Inner–North Joint Development Assessment Panel [2021] WASAT 63
Shell Co of Australia Ltd v City of Frankston (1983) 8 APA 126
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

The applicant seeks approval for a child care centre (proposed development) at Nos 589 and 591 (Lots 160 and 161) Morley Drive, Morley (subject site).
On 12 September 2022, the Metro Inner-North Joint Development Assessment Panel (MINJAP)[1] refused to grant such approval.
[1] By r 18(3) of the DAP Regs, the respondent in these proceedings is the 'Presiding Member of the Metro Inner–North Joint Development Assessment Panel' (respondent).
The applicant seeks review of that decision, pursuant to r 18 of the Planning andDevelopment (Development Assessment Panels) Regulations 2011 (WA) (DAP Regs).
For the reasons given below, we have determined that 'the correct and preferrable decision' is to dismiss the application for review and affirm the decision of the respondent.

The subject site

The subject site is located on the northwest corner of Morley Drive and Ludlands Street, Morley approximately one kilometre north east of the Morley Activity Centre.[2] Currently, the subject site contains two single storey, single residences, fronting Morley Drive, which are to be demolished to make way for the proposed development.
[2] Respondent's Statement of Issues, Facts and Contentions dated 27 April 2023 (Exhibit 6), para 8.
The subject site can be more particularly described as Lot 160[3] on Plan 9366 being the whole of the land comprised in Certificate of Title Volume 400 and Folio 34A and Lot 161[4] on Plan 9366 being the whole of the land comprised in Certificate of Title Volume 1743 and Folio 315. The two lots, when combined, have an area of 1697.6m² and form an irregular 'L' shape.
[3] Respondent's s 24 Bundle of Documents dated 27 April 2023 (Exhibit 3), page 284.
[4] Exhibit 3, page 283.
The northern portion of the subject site wraps around No 3 Ludlands Street, which also contains a single storey, single residence, adjoining both its western and southern boundary.
No 4A Ash Way adjoins the northern boundary of the subject site and No 587 Morley Drive adjoins the western boundary of the subject site. Both also contain single-storey, single residences.
The Ludlands Street verge, adjoining the eastern boundary of the subject site, contains two established street trees, one of which will be removed if the application is granted.[5] From this street verge, the topography of the subject site rises towards the west by approximately 1.25 metres over a length of 52.5 metres.
[5] Exhibit 3, page 41.
The subject site is zoned 'Urban'[6] under the Metropolitan Region Scheme (MRS). Under City of Bayswater Local Planning Scheme No. 24 (LPS 24), the subject site is zoned 'Medium and High Density Residential'. Despite that zoning, it has a residential density code of R25.[7]
[6] Exhibit 3, page 238.
[7] Exhibit 6, para 31.
Under LPS 24, the proposed use is categorised as a 'Child Day Care Centre' and under Table 1 – Zoning Table this use is identified as a 'D' use in the 'Medium and High Density Residential' zone.
The Deemed Provisions[8] define a class 'D' use as a use that is not permitted in the zone unless the local government has, without the need for advertising, exercised its discretion by granting development approval.
[8] The 'Deemed Provisions' are contained within Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015.

The proposed development

The applicant seeks approval for the development of a two‑storey child care centre at the subject site comprising:[9]
[9] Exhibit 6, paras 5 - 6.
(a)the accommodation of 87 children with 13 staff, operating from 6.30 am to 6.30 pm from Monday to Friday with staff arriving from 6.00 am.[10]
[10] At the hearing, during closing submissions, the applicant conceded that, if the proposed development is approved, the operating hours should not commence until 7.00 am, with a restriction of five staff allowed on site from 6.30am (ts 34, 6 September 2023). The applicant also sought to amend the application to include a 'cranked' acoustic wall for a portion of the common boundary between the subject site and No 3 Ludlands Street which would form part of the acoustic barrier on this boundary (ts 3, 6 September 2023 and Exhibit 24). Also in closing submissions, the applicant identified the maximum numbers of children to be accommodated by the proposed development as 81, reduced from 87 children, comprising 16 children aged 0 to 24 months, 25 children aged 24 to 36 months, 40 children aged three years or older (ts 9, 6 September 2023). These proposed amendments, and the manner in which they arose, are the subject of further discussion below.
(b)a ground floor area of 262.8m², consisting of three activity rooms, two bathrooms, sleep room, prep room, laundry, reception, office, storage areas and foyer. The ground floor also includes two play areas of 151m² (a small portion of which is undercover) and 141m².
(c)a second storey (first floor) area of 376.9m² comprising of three activity rooms, a kitchen, a planning room, piazza, staff room, two bathrooms and two toilets. The first floor also includes a play area of 351m² (part of which is covered).
(d)each of the activity rooms on the ground and first floors are to cater for separate age groups and the capacity of each room is as follows:[11]
[11] The proposed capacity for each Activity Room is identified on the floor plans, Exhibit 3, pages 29 – 30.
i.Activity Room 1 (Ground Floor): Maximum 9 places for children aged 0 to 2 years;
ii.Activity Room 2 (Ground Floor): Maximum 8 places for children aged 0 to 2 years;
iii.Activity Room 3 (Ground Floor): Maximum 20 places for children aged 3 years and above;
iv.Activity Room 4 (First Floor): Maximum 15 places for children aged 2 to 3 years;
v.Activity Room 5 (First Floor): Maximum 15 places for children aged 2 to 3 years; and
vi.Activity Room 6 (First Floor): Maximum 20 places for children aged 3 years and above.
(e)A car park with 28 parking bays, including 15 visitor bays (with one ACROD bay) and 13 staff bays. The parking bays are located on the eastern portion of the subject site, with 20 bays located adjacent to the northern boundary and 8 bays adjacent to the southern boundary.[12] The car park has a crossover onto Ludlands Street providing access and egress to the proposed development.
(f)A 1.8 metre high brick pier fence (with slat infill panels) and landscaping to the play area fronting Morley Drive (at the western end of this frontage).
(g)Landscaping occupies 475m² (28 per cent)[13] of the subject site.
(h)The bin store accommodates 6 x 600L bins.
[12] The 20 northern bays are, with one exception, 'tandem' with 10 of the staff bays located along the northern boundary and 8 visitor bays and a 'turning bay' directly south of them. The three final staff bays are at the easternmost end of the subject site. Two of them are tandem bays with one behind the other. The final staff bay is separated from the northern boundary by landscaping.
[13] The evidence of the planning experts is that landscaping occupies 24% or 403m². Nothing turns on this difference.
The application did not contain a draft Operational Management Plan, although one was tendered by the applicant during the hearing. This will be discussed in more detail later.

The locality

In Ridgecity Holdings[14] the Tribunal stated, in a passage much since cited:
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.
[14] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity Holdings) at [42].
The respondent called Ms Amanda Butterworth, a planning expert, to give evidence. Her witness statement describes the boundaries of the locality as follows:[15]
(a)All of the properties that front or have secondary street frontage to Ludlands Street (between Field Street in the north to Morley Drive in the south) as I consider that these properties combine to form the streetscape of Ludlands Street, to which the proposed development has frontage;
(b)The properties on the southern side of Ash Way (to the north of the review site), specifically 2, 4, 4A and 6 Ash Way. Whilst these properties are not within the same streetscape as the [subject site], they do form part of the locality and these properties are in proximity to the outdoor play area located to the rear of 4 Ash Way;
(c)The properties on the northern side of Morley Drive between Crimea Street to the west and Waltham Way to the east (124 Crimea Street and 565-601 Morley Drive), which form part of the Morley Drive streetscape, to which the proposal does have frontage to; and
d)The properties on the southern side of Morley Drive between Crimea Street to the west and Byflee Street to the east (558‑592 Morley Drive), which form part of the Morley Drive streetscape, to which the proposal does have frontage to.
[15] Witness Statement of Amanda Butterworth dated 26 June 2023 (Exhibit 21), para 89.
The applicant called Mr Murray Casselton as an expert planning witness. His witness statement does not describe what he considers to be the extent of the relevant locality. Rather, he provided an aerial image titled 'Nearmap Aerial Imagery of Subject Land and Locality … .'[16] Despite the name, Mr Casselton did not appear to rely on it to define a particular locality and neither did he otherwise address the issue.
[16] Witness Statement of Murray Casselton, dated 28 June 2023 (Exhibit 20), Annexure MRC4.
We agree with Ms Butterworth. In our view, and we find, the locality as defined by her represents a fair and reasonable limit of the area that will impact on, and will be impacted by, in a planning sense, the proposed development.
We will return to consider the character of the locality and the impact of the proposed development later at sub-issue (b).

Planning framework

A summary of the relevant planning framework, which we have considered in determining this application, is attached to this decision as Annexure A and includes the following:
(a)The MRS;
(b)LPS 24, which incorporates the Deemed Provisions;
(c)Planning Bulletin 72 Child Care Centres (PB72);[17]
(d)Draft Position Statement: Child care premises (DPS-CCP);[18]
(e)City of Bayswater Local Planning Policy – Non-Residential Uses in Residential Zones (LPP-NRURZ);
(f)City of Bayswater Local Planning Policy – Trees on Private Land and Street Verges Policy (LPP-TPLSVP); and
(g)City of Bayswater Draft Local Planning Strategy (DLP Strategy).[19]
[17] See Annexure A.
[18] See Annexure A.
[19] Exhibit 21, Annexure AJB5, pages 104 – 270.
In addition, we were taken to some provisions of the Education and Care Services National Law (WA)Act 2012 (ECS Act) and the Education and Care ServicesNational Regulations 2012 (ECS Regs), as to child/staff ratios, which is a matter addressed below under the heading 'The Draft Operational Management Plan'.

Procedural history

On 21 April 2022, the applicant applied for development approval for a child care centre at the subject site.
Between 14 and 29 July 2022, as part of its assessment, the City of Bayswater (City) advertised the application for public comment. Of the 21 submissions received, 14 objected and 8 were supportive. The City's Responsible Authority Report (RAR) to the MINJDAP identifies the issues raised in submissions as follows:[20]
(a)Submissions objecting: amenity – noise, privacy, impacts on outdoor living areas, access to sunlight; landscape impacts – tree roots; dilapidation report; setback variations; traffic – including turning movements from Morley Drive into Ludlands Street; parking; property values; additional uses; fencing; demographics; safety; zoning; and
(b)Submissions supporting: need – existing local child care centres are at capacity; streetscape – well designed and sympathetic; and close to nearby schools.
[20] Exhibit 3, pages 115 – 118 and 443 – 452. Under cl 67(2)(y) of the Deemed Provisions any submissions received on the application are a consideration in our determination, to the extent they are relevant.
On 12 September 2022, the MINJDAP refused to grant development approval. Extensive reasons were given, which it is unnecessary to detail. [21]
[21] The following is taken from Exhibit 6, para 1 – 4.
On 14 September 2022, the applicant lodged an application for review of the refusal with the Tribunal.
Following mediation, on 17 February 2023 the applicant was granted leave to substitute new plans and supporting information. It is these plans and supporting information that represent the proposed development which forms the basis of the applicant's application for review.[22]
[22] Subject, however, to the further amendments described above at footnote #8.

The hearing and evidence

The hearing was conducted over eight days: 1 to 4, 22, 23 and 28 August and 6 September 2023, during which we heard evidence from six expert witnesses across three professional disciplines.
In each case the expert filed a witness statement and, in the case of the noise and traffic experts, following conferral, contributed to a joint witness statement with the other relevant expert. Each pair of witnesses gave evidence concurrently:
(a)In the field of noise, Mr Martti Warpenius was called on behalf of the respondent and Mr Terry George was called on behalf of the applicant.
(b)In the field of traffic, Mr Darryl Patterson was called on behalf of the respondent and Mr Vladimir Baltic was called on behalf of the applicant.
(c)As previously noted, in the field of town planning, Ms Amanda Butterworth was called on behalf of the respondent and Mr Murray Casselton was called on behalf of the applicant.
At the commencement of the hearing on 1 August 2023, together with counsel for each of the parties and Mr Warpenius, Mr George, Mr Patterson, Mr Baltic, Mr Casselton, and a director of the applicant, we attended a view of the subject site,[23] the locality, and its immediate surrounds. The view included a walking and a driving component.[24]
[23] The view of the subject site was from the boundary of the streets; Morley Drive and Ludlands Street.
[24] Site Visit Walking Tour Map (Exhibit 1) and Site Visit Driving Tour Map (Exhibit 2).

Issues for determination

In addition to the evidence of the witnesses, each party filed and relied on a Statement of Issues, Facts and Contentions (SIFC). Unfortunately, the respective SIFCs contained a somewhat unhelpful combination of issues and sub-issues. At the hearing, the parties provided an agreed single issue for determination, which was divided into seven sub-issues, many of which contained further sub‑sub‑issues.
We have retained the single ultimate issue as agreed between the parties, but we have further distilled the seven sub-issues into five new sub‑issues which, together, cover the seven previous sub-issues as follows:
1.Should the proposed development be approved, having due regard to the relevant provisions of cl 67(2) of the Deemed Provisions, having regard to:
(a)whether the proposed use is satisfactory in this residential location given the locality's character and amenity and the proposed development's commercial nature, scale and intensity?[25]
(b)whether the built form of the proposed development is satisfactory considering its context and design, setbacks, bulk and scale, site coverage and plot ratio, and landscaping?[26]
(c)whether the noise impacts of the proposed development are satisfactory?[27]
(d)whether the impact on traffic and safety and the arrangement for car parking of the proposed development are satisfactory?[28] and
(e)whether the impact of the proposed development on the community as a whole, notwithstanding the impact on particular individuals, is acceptable?[29]
[25] Relevant to cl 67(2)(a), (g), (m) and (n).
[26] Relevant to cl 67(2)(a), (f), (g), (m), (n) and (p).
[27] Relevant to cl 67(2)(n).
[28] Relevant to cl 67(2)(a), (s), (t), (u) and (za) - as this relates to referral comments from relevant authority consulted (Main Roads WA (MRWA) in this case).
[29] Relevant to cl 67(2)(x).

The Draft Operational Management Plan

The LPP-NRURZ provides that proposals to which that policy applies 'are to be accompanied by a management plan, detailing how the use will be operated and what measures will be taken to minimise undue amenity impacts on adjoining residential uses.'[30]
[30] Exhibit 3, page 669.
As at the commencement of the hearing, the applicant had not provided a management plan, whether draft or otherwise, to either the respondent at first instance[31] or the Tribunal on review.
[31] Exhibit 3, page 123.
Mr Casselton's written evidence sought to justify that approach by stating that such a plan was operational, where the proponent in this case did not propose to operate the facility, should approval be granted. In his view there was, therefore, 'little practical point or utility' in providing a management plan at this stage.[32]
[32] Exhibit 20, para 6.2.5.

There is, in this case, plainly a distinction between a future operator and the proponent. But, in our view, it is essential in an application such as this, where the proposal is for development within a residential area, to be able to assess potential offsite impacts in the context of realistically achievable operational measures. That is, no doubt, the purpose of including the requirement for such a plan in the LPP-NRURZ.
But the need for such a requirement is particularly heightened in this case because the application was supported by expert evidence that proceeded on certain assumptions as to management.[33]
[33] See, for example, below as to child play noise at sub-issue (c).
Despite Mr Casselton's view, and in apparent response to the way certain evidence came out during the hearing, the applicant filed two versions of an operational management plan (OMP) on, respectively, 21 and 24 August 2023.
The OMPs address several matters, including opening hours;[34] traffic management; deliveries; noise management; complaint management; and capacity. It is this last point – capacity – which requires some discussion.
[34] The OMPs propose the amendment of the start time of the from 6:30 am to 7:00 am.
Both OMPs were consistent with other information supporting the proposed development to the effect that the proposed development will accommodate 87 children and 13 staff.[35]
[35] See, for example, Exhibit 6, para 5(a); Applicant's Statement of Issues, Facts and Contentions dated 19 May 2023 (Exhibit 8), para 6.
In the first version of the OMP (OMP v1),[36] however, those numbers were broken down into age groups and were correlated with staff numbers. That breakdown was not set out in the second version (OMP v2).[37] The breakdown in OMP v1 was as follows:
[36] Exhibit 27.
[37] Exhibit 23.

Activity Room

Age group

Places

Staff

Indoor Area
(m²)

Outdoor Area

(m²)

         1

0 to 2

9

2

36


OPA 1-141

         2

0 to 2

8

2

33

         3

3+

20

2

53

OPA 3-151

         4

2 to 3

15

3

54

OPA 3-351

         5

2 to 3

15

2

52

         6

3+

20

2

51

Total

87

13

         Required Indoor Area: 3.25m² per child

         Required Outdoor Area: 7m² per child

…
The minimum number of educators required to supervise children is:
0 to 2 age group: 1 supervisor per 5 children;
2 to 3 age group: 1 supervisor per 5 children;
3 to 5 age group: 1 supervisor per 10 children.

Under cross-examination, Mr Casselton agreed that the ratios of children to staff stated in OMP v1 are incorrect and that for the age group of 0 to 2 years, the ratio should be 1 supervisor per 4 children, not 1 per 5. However, that has the result that Activity Room 1 requires three staff for 9 children, and not two staff.[38]
[38] ts 800, 28 August 2023.
He also agreed that for the age group of 2 to 3 years, with the agreed ratio of 1 supervisor per 5 children, Activity Room 5 requires three staff for 15 children and not two staff.[39]
[39] ts 801, 28 August 2023.
Accordingly, he agreed there is a shortfall of at least two staff if the proposed development was to operate with 87 children. Equally, he agreed that with 13 staff, the proposed development would need to operate with no more than 81 children.[40]
[40] ts 801 – 802, 28 August 2023.
He also (later during cross‑examination) accepted that if approval was granted for 87 children and 13 staff, the proposed development could not operate without adjustments being made to the numbers of children in particular age groups relative to the number of carers.[41]
[41] ts 806, 28 August 2023.
Those concessions were made on 28 August 2023, in circumstances where OMP v1 was filed on 21 August 2023 and OMP v2 was filed on 24 August 2023. Mr Casselton commenced to give evidence on 22 August 2023 (after OMP v1 was filed) and continued, following a break of several days, on 28 August 2023, being four days after OMP v2 was filed. OMP v1 was not referred to or tendered by the applicant; it was only referenced by Mr Casselton when directed to it in cross‑examination.
In cross‑examination, he confirmed that it was his recommendation that the breakdown of children by age and associated children/staff ratios, which had been included in OMP v1, should be excluded from OMP v2.[42]
[42] ts 807, 28 August 2023.
When he was asked whether he did so because he knew that the ratios were wrong, he did not directly answer the question but, rather, said that he 'didn't think it [i.e. the breakdown and ratio information] was relevant because it was a matter they (sic) dealt with under the regulations.'[43]
[43] ts 807, 28 August 2023.
That answer, together with the chronology set out above, prompted a direct question from the Deputy President of Mr Casselton as to whether he considered that he had complied with his oath to tell the 'whole truth'.[44]
[44] ts 822, 28 August 2023.
In particular, we were concerned that Mr Casselton appeared to have become aware either before or during his evidence on 22 August 2023[45] that the proposed development could not be lawfully operated in a manner that was consistent with the manner anticipated in the application.
[45] Mr Casselton said that he saw OMP v1 before he commenced giving his evidence on 22 August 2023: ts 821, 28 August 2023.
Mr Casselton answered that he was comfortable that he had complied with his oath to tell the whole truth.[46]
[46] ts 823, 28 August 2023.
All witnesses must tell the whole truth, not just those parts of the truth that are consistent with a particular narrative. Expert witnesses also owe an ethical obligation to assist the decision maker, whether it is a court or tribunal, come to the correct decision.
Amongst other things, those obligations are described clearly in the Tribunal's Info Sheet 11 – Guide to giving expert evidence which requires, amongst other things, each expert witness to include in their signed statement of evidence an acknowledgement that the expert has read the pamphlet, which Mr Casselton did.[47]
[47] Exhibit 20, para 1.2.4.
As indicated previously, the applicant's case, including the evidence of experts in other fields, proceeded on the basis that there would be certain numbers of children of certain ages supervised by certain numbers of staff in certain areas of the proposed development. If Mr Casselton was aware that those assumptions could not lawfully be achieved because he was aware that the child/staff ratios upon which those assumptions were based were wrong, he was obliged to advise us.
As mentioned,[48] on the last day of the hearing, in oral closing submissions, the applicant's counsel, Mr Wallace, sought to amend the proposed development to reduce the number of children accommodated from 87 to 81, with the breakdown of ages as set out in the table which we have prepared for the convenience of the reader below:[49]
[48] At footnote #8.
[49] ts 9, 6 September 2023.

Child Age (years) Ratio -Educators to Children Original Proposed Number of Children Educators
Required Amended Places proposed
(in closing submissions) Amended Educators
Required

0 to 2 1:4 17 5 16 4

2 to 3 1:5 30 6 25 5

3 + 1:10 40 4 40 4

Totals 87 15 81 13

In her viva voce evidence, Ms Butterworth also identified the need for a supervisor and a cook in addition to the 13 staff identified as educators.[50] In cross‑examination, Mr Casselton accepted that, at certain times of the day, 'there would be a cook' in attendance and, 'probably some form of supervisor'.[51]
[50] ts 795, 28 August 2023.
[51] ts 802, 28 August 2023.
These positions are not included in the applicant's proposed amendment to the proposed development as described above.
There remains some uncertainty in our mind as to whether the supervisor can also lawfully play the role of educator for some part of the day, which was the position put by the applicant.[52] But regardless of the lawfulness, we agree with the submissions of the respondent that the OMPs[53] 'both speak to a range of duties that a centre manager would attend to'. No evidence at all was called in support of the applicant's position that a single person could play both roles which appeared to be purely responsive to the dilemma of staff/children ratios. We agree, and we find, that such a dual role would likely be 'impractical and unlikely'.[54]
[52] ts 11 – 12, 6 September 2023. We were taken to reg 123(2A)(c) of the ECS Regs. That appears to provide that an educator may play other roles, which might include centre supervision, while still being counted as an educator at the service for the purpose of child/educator ratios but only if their role takes them away from working with children for no more than 30 minutes in a given day.
[53] i.e. both OMP v1 and OMP v2.
[54] ts 48, 6 September 2023.
The applicant's closing submissions in response to the difficulty raised by the staff/children ratios were to the effect that any approval would merely 'set a maximum number of places for each room, a maximum number of staff and corresponding car bays', but that the ratio of staff to children must always be in accordance with the ECS Law and ECS Regs.[55]
[55] Applicant's Written Closing Submissions dated 4 September 2023 (Applicant's Closing Submissions) paras 206 – 207. Para 207 identifies 87 children. However, the applicant subsequently seeks to amend the maximum number of children to 81, ts 9, 6 September 2023.
The revised plans, on which the applicant relied, show the ages and numbers of children in each internal room, but not the outdoor play areas, although they correspond to the internal rooms.
However, although in closing the applicant sought to alter the total number of children from 87 to 81, no corresponding changes were made to the numbers (or ages) in each room in any document, such as draft conditions or the OMP v2. Further, the applicant made no submission as to the maximum number of children that should be accommodated in any particular room or outdoor play area.[56]
[56] Applicant's Closing Submissions, paras 206 – 207.
We agree with the respondent's closing submissions that the numbers of children to be accommodated in a child care facility must be known by the decision maker. To proceed otherwise renders the proposed development 'imprecise and uncertain'.[57] That is particularly the case in this application, where the intensity and scale of the use is contentious, and the extensive and detailed evidence regarding noise and traffic has been modelled on assumptions as to children and staff numbers.[58]
[57] Respondent's Written Closing Submissions dated 4 September 2023 (Respondent's Closing Submissions), para 32.
[58] Respondent's Closing Submissions, paras 7 – 8.
We also agree with the respondent's submission, and we find, that it cannot be said that the proposed development will necessarily be more acceptable if there is a reduction in the number of children from what was originally proposed. Quite simply, there has been no expert evidence on this point.[59]
[59] Respondent's Closing Submissions, para 33.
Given that lack of evidence, we reject the implicit assumption in the applicant's submission that it is for us to decide what room should house what number of children and to impose a condition to that effect. It is for the applicant, through the evidence it calls, to seeks to persuade us that to do so is (or is part of) the correct and preferable decision.
Accordingly, in addition to our concern regarding Mr Casselton's apparent failure to bring to our attention the matters discussed above (paras 40 – 53), we consider the applicant's failure to give due consideration (and to call evidence) as to how the proposed development will operate, and to ensure that it will do so in accordance with the ECS Law and ECS Regs, to be a significant oversight. That gives rise to three matters.
First, we are not satisfied that OMP v2 represents a careful and considered document. Given the circumstances of its creation we are loth to rely on it.
Secondly, as foreshadowed above, the purpose of the requirement for a Management Plan in the LPP‑NRURZ is to give the decision maker comfort that the proposed development can be operated so as to keep amenity impacts within acceptable limits. In our view, OMP v2 fails to do this because, amongst other things, it does not purport to impose limits on the numbers and ages of children in certain areas and neither does it accurately describe staffing levels, including whether a supervisor would be required as a separate role.
Thirdly, we lack confidence that, at least, some of the noise evidence can be relied upon because, as noted above, it is informed by or relies upon assumptions as to how many children of certain ages will be in particular areas of the proposed development. We will return to this issue below in due course.
Finally, in this regard, we note that on the eighth day of the hearing, and in light of the concessions drawn from Mr Casselton as described previously, the applicant conceded that the proposed development cannot operate lawfully with the children and staff numbers upon which the previous seven days of hearing had proceeded and sought to amend its application to reduce the number of children from 87 to 81. For obvious reasons that is deeply unsatisfactory.
Nonetheless, we must consider and determine the application. We will now consider each of the five sub‑issues in turn, before returning to consider and determine the primary issue.

Sub-Issue (a) – Whether the proposed use is satisfactory in this residential location given the locality's character and amenity and the proposed development's commercial nature, scale and intensity?

The application of policy

The respondent contends that the subject site is not an appropriate location for the proposed development, given its commercial nature, scale and intensity, having regard to the residential zoning of the subject site and the locality and the relevant locational provisions of planning policy. As to relevant policy, the respondent relies upon:
(a)the locational criteria in LPP-NRURZ;
(b)cl 3.3(b), (c), (e), (f) and (k) of PB72; and
(c)cl 5.4 and cl 5.5 of the DPS-CCP.[60]
[60] Exhibit 6, para 70. The relevant provisions of LPP-NRURZ, PB72 and DPS-CCP at set out in Annexure A.
The applicant contends, in that regard, that the respondent has adopted an overly strict interpretation of the planning framework contrary to the requirement of 'due regard' in cl 67 of the Deemed Provisions.[61]
[61] Exhibit 8, para 31.
The applicant's case, in effect, is that policies must be given 'due regard' but must not – cannot – make impermissible a use which the scheme declares to be permissible.
We accept that the proposed land use (being a 'D' use under LPS 24 in the residential zone) is capable of approval and that that status is not, and cannot, be rendered nugatory or ineffectual by the provisions of policy, regardless of how the terms of the policy are framed. We also accept the submission that the policy must not be inflexibly applied.[62]
[62] Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 (Clive Elliot Jennings) at [24].
But the obligation to give planning policy mere 'due regard' and to not apply the policy inflexibly does not render the policy without effect.
'Due regard' requires that we give 'active or positive consideration' to relevant policy.[63] It is for us to determine the weight to be given to the policy.[64] And we are required to have due regard to the requirements of orderly and proper planning,[65] which requires a 'disciplined, methodical, logical and systematic' approach which has at its heart the planning framework. Orderly and proper planning requires, as a public process, the assessment of applications for approval against existing planning policies.[66]
[63] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [107] – [118] especially [116].
[64] Marshall at [117] – [118].
[65] Deemed Provisions, cl 67(2)(b).
[66] Marshall at [179] – [180].
That, in turn, requires that any exercise of discretion must be objective, such that planning principles identified in planning policies will not be lightly departed from without the demonstration of a sound basis for doing so, which basis must itself be grounded in planning law or principle.[67]
[67] Marshall at [182]. Also, Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [644] – [645].
In relation to the location of the proposed development, the applicant submits that the locational criteria of LPP-NRURZ is not targeted specifically at child care centres but is, rather, directed at all non‑residential uses. The applicant submits that on that basis LPP‑NRURZ should be applied 'flexibly', having regard for the context of the proposed development.[68]
[68] Exhibit 8, para 58.
We accept that LPP-NRURZ covers a range of non-residential uses, including child care centres. But, in our view, that fact does not diminish the weight to be accorded to this policy which, the parties accept, and we find, is relevant to the proposed development before us.
The range of factors traditionally considered relevant to the weight to be given to a planning policy[69] does not include the fact that the proposed use is but one of the uses addressed by the policy. And in this case the evidence is that the LPP-NRURZ began life as a policy specifically directed at child care centres and was only recently expanded to address other land uses.[70]
[69] Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1, applied in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100.
[70] Exhibit 3, pages 670 – 676.
We do, however, agree that PB72 and DPS-CCP, the latter of which remains a draft document, ought to be accorded limited weight in arriving at our decision.[71]
[71] For completeness, we have set out the relevant provisions of PB72 and DPS-CCP in Annexure A.
PB72 was published by the Western Australian Planning Commission (WAPC) in 2009. In 2017, the WAPC advised that, amongst other things, Planning Bulletins would 'generally speaking … only need to exist for a maximum of 12 months to provide sufficient time for the relevant change [i.e. the change identified in the Bulletin] to be embedded within the planning system'. On that basis, this Tribunal[72] has previously accepted that limited weight should be given to PB 72, an approach with which we agree.
[72] O'Neill and City of Joondalup [2021] WASAT 107 at [32] (per Povey M).
DPS-CCP was published by the WAPC on 14 November 2022 for the purposes of public advertising, which concluded on 10 February 2023. Its adoption is, on the evidence before us, neither certain or imminent and its final form is unknown.
For those reasons we will accord limited weight to DPS‑CCP and PB72. But the reality is that the relevant provisions of PB72 and DPS‑CCP are, in many respects, entirely consistent with LPP-NRURZ and there is no reason for full weight not to be accorded LPP‑NRURZ, which provides planning policy guidance at a local level relevant to the proposed development.

The Location Requirements of LPP-NRURZ

The relevant location requirements of LPP-NRURZ provide:[73]
1.Non-residential uses in residential zones shall be located adjacent to established commercial, industrial or mixed-use zones and facing the same street as those land uses, to act as a transition between them and surrounding residential areas.
2.Proposals to locate non-residential uses in residential zones on local access roads, in culs-de-sac and/or situated in isolation between residential uses will generally not be supported.
[73] Exhibit 3, page 668.
It is uncontroversial, and we find, the proposed development does not meet the location requirements of LPP-NRURZ because:
(a)it is not located adjacent to established commercial, industrial or mixed-use zones. Rather, the locality contains only residential uses; and
(b)it is to be accessed from Ludlands Road (being a local access road); and
(c)it is to be located in isolation between residential uses.

As noted above, the applicant submitted, and Mr Casselton's evidence was, that the respondent's case sought to inflexibly apply the locational elements of LPP-NRURZ.
We disagree. The respondent's submissions addressed other aspects of the policy including, relevantly, the objectives. In addition, and perhaps more importantly, Ms Butterworth's evidence also addressed the issue of non-compliance with the locational elements of the LPP‑NRURZ with considerably more complexity and nuance than that suggested by the applicant and Mr Casselton. Her view was not that the proposed development should be refused because it is inconsistent with the locational requirements. Rather, she said that that inconsistency requires further consideration of the proposed development against the objectives of the policy.[74]
[74] ts 592 – 593, 23 August 2023; Exhibit 21, para 118.
We accept that evidence, but the reality is that the proposed development does not comply with the locational requirements. While that may not be sufficient to warrant refusal, it is, of itself, a factor that tends against approval for the reasons set out above as to the principles of orderly and proper planning.
The objectives of LPP-NRURZ are as follows:
1.Ensure that development is consistent with, and will not detract from residential character and amenity.
2.Ensure that any potential undue amenity impacts are appropriately managed.
As such, we must carefully consider the merits of the proposed development to determine if the proposed residential location is suitable for the proposed development in light of the character and amenity impacts of the non-residential use on the residential locality.

Character and amenity

The case authorities on evaluating amenity are well-known and settled.[75] In Tempora,[76] the former Town Planning Appeal Tribunal set out a three-step test in terms of evaluating amenity as follows:
(1)establish the existing amenity in an objective sense;
(2)evaluate the manner in which the proposed development will affect the existing amenity; and
(3)assess the degree of impact on the locality.
[75] John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].
[76] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) at 304. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [21] – [22] Barker J generally endorsed that approach but added, relevantly, that consideration of amenity should take account of future amenity. That is now expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.
In our view, and we find, the existing character of the locality is defined by its residential land use and the built form of the existing dwellings.
We agree with Ms Butterworth when she says, and we find, that with the exception of a drainage reserve, the locality is homogeneous in its land use and zoning under LPS 24, being zoned Medium and High Density Residential, with an R25 coding.[77] That finding is based upon the view we took as described above and is confirmed by the photographic study[78] attached to Ms Butterworth's witness statement.
[77] Exhibit 21, para 90.
[78] Exhibit 21, Annexure AJB6.
On the same basis, we also agree with Ms Butterworth when she says, and we find, that the built form of the existing dwellings in the locality varies; most of the dwellings in the locality are single storey (with No 6 Ash Way and No 577 Morley Drive being the exception, both being two storeys).[79] There are also a number of duplex and triplex developments, particularly along Morley Drive.
[79] Mr Casselton Nos 565, 569 and 571 Morley Drive are single storey with an undercroft.
We also find that the road network influences the character of the locality. In particular, the locality is strongly influenced by Morley Drive, which is a four‑lane road (dual divided carriageway) which carries a high volume of traffic (26,389 vehicles per weekday) and which has a speed limit of 70km/h, classified as a Primary Regional Road. Also relevant is Ludlands Street, which is a local access road with a speed limit of 50km/h and carries 576 vehicles per weekday.[80]
[80] Exhibit 3, pages 60 – 61.
As a result, we find that traffic noise from Morley Drive is also a part of the character of much of the locality. Mr Warpenius provided a succinct description with which we agree:
[a] good characterisation – when we're out on site, we found it quite noisy at the front of the buildings, on the footpath [on Morley Drive], very hard to hear – well, harder to hear. When we were in the back area in the – on Ash Way, we could hear the birds sing. So this location we're talking about [being the subject site] is intermediate …[81]
[81] ts 435, 4 August 2023.
We also agree with Mr Casselton's observation that, as a result of traffic noise, some dwellings on Morley Drive have implemented measures to protect their residential amenity through high solid fences or installation of window shutters.
But we do not agree that those features predominate or strongly contribute to the character of the locality. A review of Ms Butterworth's photos indicate that such treatments are in the minority. Further, we do not accept as relevant Mr Casselton's description of Morley Drive as a 'quite poor urban environment'.[82] That is, the relative values of the houses is not, in our view, a matter that ought to be given any material weight. Morley Drive, and the locality as a whole is, in our view, and we find, a residential environment with a residential character.

Future amenity

[82] ts 528, 22 August 2023.

By questions to the planning experts, the applicant sought to contend that the strategic planning for the locality, as identified in the DLP Strategy, would alter the future amenity of the locality. That contention hinged on the identification in that Strategy of the Crimea Street Urban Corridor[83] (CSUC) as an area of future greater population density, with medium density (R50 to R80) residential development envisaged.[84]
[83] Identified as Planning Area 'N' in the DLP Strategy.
[84] A copy of the DLP Strategy is attached at Exhibit 21, Annexure AJB5. See, in particular, page 127.
While the subject site is not located in the CSUC (or any identified planning area under the DLP Strategy), a portion of the broader locality to the west of the subject site, on Morley Drive, does form part of the CSUC.
Under cross-examination, Mr Casselton accepted that the DLP Strategy does not indicate any change to the planning framework for the subject site or the immediate locality and, therefore, the future character of the immediate area will likely be the same as is currently the case. [85] In that regard, he said that the eastern end of the CSUC is located approximately 120m east of the subject side.
[85] ts 472 – 478, 22 August 2023.
We also note that the DLP Strategy states that non-residential uses (such as the proposed development) 'are also not encouraged within areas outside of the identified planning areas, as this will undermine the objectives and intent of the planning areas'.[86] The subject site is not in an identified planning area of the DLP Strategy.
[86] Exhibit 21, Annexure AJB5, page 136.
Ms Butterworth said that the current and future amenity of the immediate locality 'is low density residential'.[87] Mr Casselton agreed, in effect.[88] We agree with this evidence and find, for the previous reasons, that to be so.
[87] ts 479, 22 August 2023.
[88] ts 478, 22 August 2023.
As should be apparent from the above, we find the relevance of the DLP Strategy is, limited to the built form of the Morley Drive façade which, as we discussed later, we find acceptable in any event.
Finally, however, we note that the DLP Strategy remains in draft form, having been advertised only. Had it been necessary to give it more attention we would be minded to give it somewhat limited weight for that reason.

Impact of the proposed development on character

The evidence of Ms Butterworth is that the proposed development is not consistent with the residential character and amenity of the locality. She is of the opinion that the proposed development will detract from that residential character and be incongruous with its surrounds, particularly when viewed from Ludlands Street.[89]
[89] Exhibit 21, para 120.
In his written evidence Mr Casselton said that the proposed development 'can meet the needs of the area [as to child care] without causing undue adverse amenity impacts on neighbours or the locality'. His evidence was that he considers the interface to Ludlands Street, which he says comprises a low-level signage wall, low-level masonry wall, brick pier fencing with slat infill up to 1.8 metres in height and edge landscaping treatments, 'to be significantly superior to the existing approximately 1.8m high solid beige metal boundary fence'.[90]
[90] Exhibit 20, paras 6.2.1 – 6.2.3.
However, Mr Casselton's written evidence does not consider the amenity impacts of the 28 bay car park which faces, and can only be accessed from, Ludlands Street and which directly abuts the dwelling at No 3 Ludlands Street. We consider this to be a significant oversight.
In our view, two of the unacceptable impacts of the proposed development derive from the car park.
Those impacts are on the character of Ludlands Street and on the noise received by No 3 Ludlands Street. The noise impacts will be addressed later in sub‑issue (c). As to character, Ms Butterworth's evidence was that the proposed development will unacceptably impact on the character of the locality because the proposal will present as a commercial development with a large car park dominating the Ludlands Street residential streetscape.[91]
[91] Exhibit 21, para 158(n).
Under cross-examination, Ms Butterworth said that it is not the height of the proposed development on Ludlands Street that is of concern but 'the presence of … and the dominance of the carparking'.[92] In her view, this aspect is 'where the commercial nature of the [proposed development] becomes very evident'.[93]
[92] ts 659, 23 August 2023.
[93] ts 660, 23 August 2023.
Mr Casselton's opinion is that the existing mature street tree at the corner of Ludlands Street and Morley Drive, which he describes as 'substantial', and which is to be retained, and the landscaping to be provided will go 'a long way to mitigating any of the adverse impacts' on Ludlands Street.[94]
[94] ts 666, 23 August 2023.
We share the concern of Ms Butterworth in this regard and find that the proposed landscaping does not, and probably cannot, mitigate the relevant impacts. In our view, and we find, the proposed development is inconsistent with, and detracts from, the residential character and amenity of Ludlands Street.
The existing dwellings in this section of Ludlands Street, including a recently constructed dwelling at No 2 Ludlands Street (on the opposite side of Ludlands Street to the subject site), have a residential form and face the street in a traditional way.
The proposed development is a commercial building of a not inconsiderable scale and intensity – the proposed 28 bay ground floor car park is a strong indicator of that scale and intensity – which is, in our view, inconsistent with, and detracts from, the established residential character of Ludlands Street.
When considering the images of the proposed development when viewed from several angles on Ludlands Street (which were produced by the applicant)[95], the car park is plainly visible and, in our opinion, dominates the view from Ludlands Street. A view of a 28 bay car park, with central driveway and bays on either side, is inconsistent with the residential character and amenity of the street. In our view, the proposed landscaping does not ameliorate the impact and, given it is a car park, we doubt it could do so.
[95] Visualisations at Exhibit 3, pages 84 – 87.
Accordingly, we find that the proposed development does not meet the relevant objective of LPP-NRURZ to 'ensure that development is consistent with and will not detract from residential character and amenity'.

Sub-issue (b) – Whether the built form of the proposed development is satisfactory considering its context and design, bulk and scale, site coverage and plot ratio, and landscaping?

Development standards

Table 2 of LPS 24 provides for development standards in relation to a variety of land uses, one of which is child care centres. The standards are in relation to: lot area, street frontage, setbacks, carparking, site coverage, plot ratio, landscaping as well as another 'catch-all' category of 'special considerations'.
The proposed development does not comply with the development standards for child care centres in relation to setbacks, plot ratio, site coverage and car parking.
Provision is made for approval of developments that depart from such requirements in cl 8.2.1 of LPS 24. That clause provides as follows:[96]
Except for development in respect of which the Residential Design Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with a development standard prescribed by the Scheme with respect to minimum lot sizes, building height, setbacks, site coverage, car parking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:
a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.
[96] Exhibit 3, page 494.
Two issues arise as to the proper construction of that clause.
The first concerns the absence of the term 'plot ratio' from the list of matters that that clause states may be departed from, in accordance with its terms. In contrast, and as noted previously, Table 2 provides for plot ratio as one of the eight development standards for the various land uses.
Although clause 8.2.1 omits plot ratio from the relevant list it does, after listing those other matters, finish with the words 'and related matters'.
In our view, plot ratio is plainly a 'matter' that is 'related to' issues such as lot area, street frontage, setbacks, parking and site coverage. Indeed, there was some considerable discussion during the hearing as to the extent to which site coverage differs from plot ratio such is the similar nature of the concepts.[97] Accordingly, in our view, and we find, cl 8.2.1 allows for a departure from the plot ratio provisions of Table 2 subject to its terms.
[97] ts 507 – 508, 22 August 2023.
The second issue going to the construction of the clause is that one of the matters that must be satisfied, per cl 8.2.1(b), as a precondition to an approval being granted for a development which departs from a development standard is that the non-compliance will not have 'any adverse effect'[98] upon the identified classes of persons.
[98] Emphasis added.
That stands in contrast to other similar provisions which require that the non-compliance have no significant adverse effect on such persons.[99]
[99] See, for example, the Model provisions found at Sch 1 to the Planning and Development (Local Planning Schemes) Regulations 2015, cl 34(5)(b).
A similarly phrased clause to cl 8.2.1(b) of TPS 24 was the subject of discussion in Sharon Property[100] where the Tribunal held as follows:
[346]Of course, cl 14(3)(d)(vii) of LPS 3 is a provision that has to be interpreted sensibly and consistent with its town planning purpose. It is not the case that any 'adverse or detrimental effect' must result in a proposal being refused in the exercise of discretion. Any adverse or detrimental impact must be such that it has tangible adverse or detrimental town planning consequences.
[347]The applicant says that the test should be whether the impact is 'unacceptable' in planning terms. We do not disagree with this. This is because the word 'unacceptable' takes its meaning from the context in which it is used. In this instance, the meaning of cl 14(3)(d)(vii) is clear. Applied in its context it means that only minor amenity impacts may be tolerated. That is, if there is an adverse or detrimental amenity impact that is of tangible town planning consequences, then that impact is 'unacceptable' having regard to cl 14(3)(d)(vii).
[100] Sharon Property Pty Ltd and Presiding Member of the Metro Inner–North Joint Development Assessment Panel [2021] WASAT 63 (Sharon Property) at [346] – [347].
We agree. While the plain language of the clause is absolute, it would be absurd to read it as requiring absolutely no adverse impact at all as the precondition which must be met before a departure may be approved.
However, in contrast with other provisions which require no 'significant' adverse impacts, in our view the present form of words sets a tougher standard. As was found in Sharon Property, only minor amenity 'impacts' will be tolerated.

Context and design and setbacks

By way of introduction to this aspect of the sub‑issue, we make the following comments about 'context and design'.
First, as to context, we have already identified the relevant locality and described its character and amenity. We will not repeat ourselves. Our findings below in regards to this sub‑issue are made in that context.
Secondly, while the parties agreed that the 'design' of the proposed development was an issue for determination, no specialist design evidence was put before us with both planning experts disclaiming relevant specialist expertise. Mr Wallace, who appeared for the applicant, sought to rely upon the comments of the City's Design Review Panel (DRP), which was comfortable with the design of a previous iteration of the proposed development[101] However, while Mr Wallace asked Mr Casselton to describe the differences between the previous design (which had been assessed by the DRP) and the current design (which had not), we were not provided with a copy of the previous plans. While the changes, as described by Mr Casselton, did not appear to be significant in this context, the lack of those plans hindered that exercise.
[101] The DRP’s review was against the provisions of SPP 7.0. Neither of the planning experts carried out such a review in relation to the current design.
In the end, we have had regard to the evidence as to 'design' of the planning experts as planners.
We will first consider the design of the Morley Drive frontage, followed by a consideration of the Ludlands Street elevation, and then consider the interface of the proposed development with each adjoining residential lot.[102]
[102] The directly adjoining residential developments are No 587 Morley Drive, No 3 Ludlands Street and No 4A Ash Way.
Ms Butterworth's evidence is that when the proposed development is viewed from Morley Drive it reads as a long, two‑storey development which, she says, is not consistent with the existing streetscape of Morley Drive, which consists of single and grouped dwellings.[103]
[103] Exhibit 21, para 93.
She did, however, accept that the Morley Drive façade has a level of articulation, including the use of differing heights, and uses a variety of materials that reduces perceived bulk and scale.[104]
[104] ts 648 – 649, 23 August 2023.
In his written evidence, Mr Casselton expressed the view that the design of the proposed development 'satisfactorily addresses' the Morley Drive frontage, although he didn't explain the reason for that view.[105]
[105] Exhibit 20, para 6.2.3.
At the hearing, he opined that in his view, the proposed development 'deploys a residential rhythm' consistent with 'some of the historic subdivision pattern' in the area and that it incorporates 'separated components with pitched roofs' and 'vertical openings which are very much characteristic of the area'. He also spoke of the use of different materials which take their cue from those used in the area including 'brickwork cladding, metal roofs, painted panels'.[106]
[106] ts 655 – 656, 23 August 2023.

Applying Mr Casselton's evidence to the Morley Drive façade, we accept that the façade is longer than those in the locality, but we find it is sufficiently articulated and makes good use of a variety of materials such that, in its context (i.e. Morley Drive), there is no unacceptable adverse amenity impact that arises from the length (or the form and scale) of this façade.
As to the impact of the built form of the proposed development on Ludlands Street, our findings are addressed under sub‑issue (a) above and we will not repeat ourselves.
As to the interface with the adjoining residential lots, there was no suggestion that the built form of the proposed development abutting No 587 Morley Drive is unacceptable. The sole issue for this interface is noise from mechanical plant, which we address later.
Equally, no concern was raised as to the built form impacts on other adjoining lots. In any event, the combination of landscaping, setbacks and, in relation to No 3 Ludlands Street, the proposed acoustic fence, will ensure that the built form of the proposed development is acceptable.
As to setbacks, with two exceptions the setbacks of the proposed development are largely compliant with the requirements of Table 2 of LPS 24.[107]
[107] Exhibit 21, para 141; Exhibit 20, para 6.1.
Ms Butterworth's evidence is that the one exception is the setback from Morley Drive. Table 2 requires a setback of 6 metres, while the proposed development provides a mix of setbacks, the least of which is 2.59 metres.[108] But Ms Butterworth considers that the variation from the development standard is capable of approval because:
… the setback to Morley Drive would not adversely impact upon the inhabitants of the locality, or the amenity of the locality and would be consistent with proper and orderly planning.[109]
[108] Exhibit 21, paras 141 and 157(f).
[109] Exhibit 21, para 157(f).
We agree. The level of impact of the reduced setbacks is reduced by the variety of different setbacks along Morley Drive, as well as the articulation of the building facade. Any residual impact will be felt only in passing by persons driving along Morley Drive.
The two planners also appear to have addressed the setback to the southern boundary of No 3 Ludlands Street differently; Ms Butterworth appears to have treated it as a side setback (and therefore compliant) while Mr Casselton has treated it as a rear setback.[110] If the latter is correct, there is a slight reduction in the required setback. Neither raised any concern and we agree the impact will be acceptable.

Plot ratio and site coverage

[110] Exhibit 21, para 141; Exhibit 20, para 6.1.3.

We note, in this regard, that although there is a clearly understood meaning of 'plot ratio', no such common understanding appears to exist for site coverage. [111]
[111] LPS 24 defines 'plot ratio' by reference to the definition in the Building Code. For present purposes, we understand 'plot ratio' to refer to the ratio of the total floor area of a building to the area of land within the lot boundaries. LPS 24 gives no definition for 'site coverage'.
For present purposes, then, we will adopt an understanding of 'site coverage' consistent with a previous decision of the Tribunal – that proportion of the lot at ground level covered by buildings and other physical structures.[112]
[112] Georgiou Corporation Holdings Pty Ltd and City of Stirling [2009] WASAT 51 at [42].
Despite some differences in the approach taken by the planning experts in calculating site coverage, they agreed that such calculations should include that part of the second storey that covered the carpark where an otherwise open carpark, not being a building or a structure, would not otherwise have been included in site coverage.[113]
[113] ts 497 – 501, 22 August 2023.
The second storey play area provides a good example of the changing nature of child care centres since LPS 24 (and Table 2) was promulgated.
In that regard, Mr Casselton's evidence challenged the currency of the Table 2 requirements for plot ratio and site coverage. He noted that LPS 24 is 20 years old and that he was unable to identify the basis for the plot ratio (or site coverage) requirement.[114] Further, he says that in the past 20 years commercial child care centres have become more prevalent and their design has changed, with two‑storey centres often developed on smaller sites.[115] He also sought to draw a comparison with the R-Codes development standards for a site with an R25 density code (and also with the existing residential development in the locality), saying that the site coverage and plot ratio development standards in Table 2 are a significant departure from the R-Codes.[116]
[114] ts 503, 22 August 2023.
[115] ts 504, 22 August 2023.
[116] ts 503, 22 August 2023.
By way of justification of the variations sought by the applicant to the Table 2 requirements of plot ratio and site coverage, Mr Casselton's oral evidence was that the proposed development will be 'a building within a context that's continuing to develop and evolve, and you would expect there to be comparable levels of site coverage and development occurring within that context …'.[117]
[117] ts 507, 22 August 2023.
Ms Butterworth agrees there have been changes in the built form of child care centres over the past 20 years but, in her view, the plot ratio and site coverage provisions in LPS 24 reflect the desired intensity of the use.[118]
[118] ts 508, 22 August 2023.
We do not accept that Table 2 is out of date or can otherwise be disregarded. We also don't accept that the plot ratio and site coverage requirements of the R-Codes are relevant for a non-residential development. LPS 24 has been amended many times in the last 20 years without altering Table 2. In our view, we must proceed on the assumption that Table 2 continues to reflect the City's preferred development standards.
Neither do we agree with Mr Casselton's evidence that the standards can be given little weight because the proposed development sits within a locality that will continue to change. As we have previously found, there are no proposed changes to the planning framework of the locality that contemplates non-residential development with the level of plot ratio or site coverage of the proposed development.[119]
[119] Paras 100 – 102 above
The applicant accepts that the proposed development does not meet either the plot ratio or site coverage requirements for child day care centres under Table 2:
(a)The proposed development has (the experts agree) a plot ratio of 0.38 where Table 2 provides a requirement of not more than 0.3.[120]
(b)the proposed development has (the experts agree) a site coverage of 48.6% while Table 2 provides for a site coverage of 30%.[121]
[120] ts 60, 1 August 2023.
[121] ts 16, 1 August 2023. This was an agreed position between the planning experts; ts 484, 22 August 2023.
The plot ratio exceeds the development standard by 130m².[122] The site coverage variation is considerable – 18.6%. It should also be remembered that the proposed development was designed to accommodate 87 children, but the applicant's amended application proposes to reduce that to 81, meaning that in addition to the other exceedances, the building is larger than it needs to be.[123]
[122] Exhibit 21, para 153(e).
[123] We note that, in closing submissions, Mr Wallace (for the applicant) submitted that reg 107 of the ECS Regs requires the provision of 263.25m² of indoor play area while 279m² is provided; an additional amount of 15.75m²: ts 10, 6 September 2023.
Having said all of that, we have previously made findings as to built form (physical bulk and scale) and setbacks that might suggest that the plot ratio and site coverage is satisfactory.
Indeed, the evidence of Ms Butterworth in relation to these issues was not that the exceedances of the relevant standards was a basis for refusal but that the Table 2 development standards of plot ratio and site coverage provide a guide to the appropriate intensity of use.[124]
[124] ts 507, 22 August 2023.
That is, her evidence was that plot ratio and site coverage are measures of intensity of land use which, in the context of a child care centre, will manifest in other ways, including the number of children and traffic impacts. In her view the development standards are the starting point, rather than the end point in the consideration of such matters and that a proposed departure from the standards requires a consideration of all other relevant matters.[125]
[125] Ibid. Exhibit 21, para 153(a).
We accept her evidence and adopt that approach. That is because it is consistent with cl 8.2.1, which permits departures from development requirements if they do not, amongst other things, adversely impact on amenity.
In our view, the proposed development will have unacceptable impacts on the amenity of the locality. The impact of the car park as described in sub-issue (a) is one such example. As we will set out in more detail below, we also cannot be satisfied that it will not have unacceptable noise impacts on neighbours. Both of those impacts are due to the unacceptable level of commercial intensity of the proposed development, but they are somewhat difficult matters to quantify. Exceedances of plot ratio and site coverage standards provide a means by which unacceptable intensity, which is otherwise a difficult concept to measure, may be quantified.

Landscaping

There are three non-compliances as to landscaping that need to be addressed; those arising under Table 2, cl 8.4.5 of LPS 24 and LPP‑TPLSVP.
It is uncontroversial that the landscaping requirement of 10% in Table 2 is met, with landscaping occupying 24% of the subject site. However, as Ms Butterworth notes, the requirement for a landscape strip of two metres on the street frontage (in this case Morley Drive) is not met.[126] Mr Casselton's evidence, which we accept, is that a two metre landscape strip is generally provided to both street frontages with minor interruptions associated with Outdoor Play Area 2, and for pedestrian and vehicle access points.
[126] Exhibit 21, para 141.
We are satisfied, and we find, the majority of the Morley Drive frontage does have a suitable two metre landscape strip and, when viewed as a whole, the minor interruptions are just that, minor. In our view, and we find, the landscape requirements of Table 2 are met.
Clause 8.4.5(a) of LPS 24 requires that, in circumstances which are met in this case, at least 2m of landscaping strip must be provided between parking facilities and adjoining streets. Mr Casselton's evidence, which we accept, is that the requirements of this clause are largely met.[127]
[127] Exhibit 20, para 6.1.
The exception is a proposed reduction in the width of the landscaping strip between Ludlands Street and bay 20 – from 2m to 0.3m. As we have already found, the car park represents a significant commercial presence on Ludlands Street, and it is unlikely that any form of screening is capable of making it acceptable. The proposed reduction from the standard of 2m to 0.3 m is manifestly inadequate in the circumstances and reinforces the non‑residential nature of the proposed development.
LPP-TPLSVP requires,[128] amongst other things, a tree growth zone to be provided 'around the entire base of all new trees or existing trees that are to be retained on the site'. The tree growth zone for a 'standard tree' is to have a minimum radius of 2m and for a 'large tree' a radius of 3.5m is required.[129] In this case, standard trees are proposed, and we accept that the number of standard trees to be planted on site (being 18) is well above the 5 trees required under the policy.
[128] Exhibit 3, page 679.
[129] Standard trees are defined in LPP-TPLSVP to be 'a species of tree that has the potential to grow to at least 4m in height and has a minimum size of 35 litres when planted', Exhibit 3, page 678.
However, as Mr Casselton accepted, '[n]ot all [the] provided trees meet the growth zone requirements'.[130]
[130] Exhibit 20, para 6.4.
The area of non‑compliance relates to the landscaped area located between the car park and No 3 Ludlands Street, which comprises a narrow landscape strip of ∼ 0.6m width with three tree planting diamonds.[131]
[131] Updated Landscape Planting Plan (Exhibit 25).
LPP-TPLSVP provides for alternative design solutions in exceptional circumstances and requires '[w]ritten justification is to be provided by a "suitably qualified landscape architect", or "consulting arborist", demonstrating that the alternative design is consistent with the objectives of the policy…'.[132]
[132] Exhibit 3, page 681.
Mr Casselton says that the proposed development incorporates trees well in excess of the LPP-TPLSVP requirements and that the landscaping has been designed by an experienced landscaping firm who have 'confirmed' (i.e. to him) that the design of the growth zones as proved are appropriate.[133] That may be so, but it falls well short of the written justification from a qualified person required by the policy. We are therefore not satisfied that the three trees in this location have a suitable tree growth zone.
[133] Exhibit 20, para 6.4.2.
Overall, we accept that the landscaping provided is in excess of what is required, although we had no detailed evidence as to its quality. The two areas of non-compliance would not, of themselves, cause us to refuse the application but, as noted above, the failure (and, probably, inability) to screen the carpark is a significant factor in our decision to refuse.

Sub-issue (c) – Whether the noise impacts of the proposed development are satisfactory?

The respondent contends that the noise created by of the development is likely to have adverse amenity impacts on neighbouring residents, both from the noise of slamming car doors associated with the arrival of staff and customers (especially but not only) prior to 7.00 am (staff only) and from the children's play areas immediately adjacent to the neighbours' dwellings and private open space.[134] The respondent further contends the modelled impacts of noise contained in the applicant's acoustic report underestimate the likely noise from the proposed development, although for reasons that we will explain, this issue has fallen away.[135]
[134] Respondent's Closing Submissions, paras 37 – 77.
[135] Respondent's Closing Submissions, para 78ff. Exhibit 6, para 77.
In relation to car park noise, and in response to the way the noise evidence came out on day 7 of the hearing, the applicant made three significant concessions. First, it conceded that the opening time of the proposed development should be delayed from 6.30 am to 7.00 am (weekdays). We understand that this was so that the less restrictive daytime assigned levels of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) will apply.[136]
[136] Exhibit 23, page 2; ts 719, 28 August 2023.
Secondly, the applicant sought to amend the application to incorporate a 'cranked acoustic fence' located on part of the common boundary with No 3 Ludlands Street. The applicant's plan (Exhibit 24) indicates (in red) that the cranked acoustic fence will extend from car bay No 1 (at the western end of the car park) to approximately two‑thirds of the width of car bay No 5.
Thirdly, the applicant also proposes that we condition a car park management plan be prepared to ensure that the five vehicles (or fewer) that arrive between 6.30 am and 7.00 am park only in designated bays (being staff bays numbered 1 to 4 and number 20) to limit the noise impact on No 3 Ludlands Street.[137]
[137] ts 719 – 720, 28 August 2023.
Although the acoustic experts were not recalled to give evidence on these changes, Ms Ide, as counsel for the respondent, advised that the changes had been put to Mr Warpenius and 'he does accept that with the noise attenuation shown in that diagram [i.e. Exhibit 24] and the wording provided for in a set of draft conditions – that the assigned levels would be met'.[138]
[138] ts 758, 28 August 2023.
In their joint statement, the two acoustic experts agreed that noise from child play and the mechanical plant (air-conditioning and ventilation) can be managed to ensure compliance with the Noise Regulations.[139]

Mechanical plant noise

[139] Joint Witness Statement of Experts: Martti Warpenius and Terry George dated 6 July 2023 (Exhibit 12) para 2.2.2.

As to noise from the mechanical plant, which includes outdoor air‑conditioning condenser units and exhaust fans, the acoustic experts agree that should the proposed development be approved, a condition should be imposed requiring assessment of the mechanical plant to be undertaken prior to a building permit by a suitably qualified acoustical consultant.[140] Given the concerns expressed in the evidence of Mr George,[141] in particular the difficulty achieving compliance with the Noise Regulations for the proposed services area shown on the western side (adjacent to No 587 Morley Drive), we accept a condition of this nature is necessary if approval were to be granted.

Child play noise

[140] Exhibit 12, para 2.3.1.

[141] Witness Statement of Terry George dated 22 June 2023 (Exhibit 10), page 44.

For child play noise, the main concern of the respondent is with Outdoor Play Area 1 (abutting No 3 Ludlands Street and No 4A Ash Way).
The respondent raised no concern arises with Outdoor Play Area 2[142] (which faces Morley Drive) or Outdoor Play Area 3 (located above the car park).[143] The evidence of the acoustic experts indicates that child play noise from those areas will comply with the assigned daytime noise levels because of the proposed 1.8 m high noise walls to the first floor play area (Outdoor Play Area 3) on the northern side and to the ground floor play area (Outdoor Play Area 1).[144] Notwithstanding the more general nature of the concerns raised as to the reliability of the assumptions on which the modelling was based (as to which see immediately below) the respondent's submissions raised no concern in this regard as to these areas.[145]
[142] Subject to the requirement that ‘elevated’ play equipment (e.g. ‘forts’) not be located in that area Exhibit 12, para 2.2.5.
[143] ts 44 – 45, 1 August 2023.
[144] Exhibit 12, paras 2.2.2 – 2.2.4.
[145] Respondent's Closing Submissions, para 37.
For Outdoor Play Area 1, the respondent accepts that the assigned level (being 51dB L_A10) will likely be met (with a modelled noise level of 48dB).[146]
[146] Respondent's Closing Submissions, para 56.
However, the respondent raised concerns as to the extent to which the assumptions on which the modelling which produced those outcomes might or should be relied upon. Those assumptions concern the extent to which they assume children will behave (or can be managed) consistent with those assumptions.[147]
[147] Respondent's Closing Submissions, paras 78 – 93.
In addition, we are also most concerned that the modelling proceeds on the assumption that Outdoor Play Area 1, would only and always have 17 children aged 0 – 24 months in it.
We have already addressed the applicant's submission that we should prescribe by condition that certain areas must only have certain aged children of a certain number. In the absence of evidence (preferably in the form of a draft management plan), we are not in a position to, and will not, impose such a condition.[148]
[148] See above at paras 58 – 63.
Were we to approve the proposed development without such a condition, there would be no reason why Outdoor Play Area 1 might not be used by 3+ year old children. The noise implications of that have not been addressed in evidence and, in our view, simply demonstrate the difficulties associated with the way the applicant ran its case.
To be clear, the applicant's submission that approval should be subject to such a condition,[149] made in circumstances where we lack the evidence to impose such a condition, tends to support the view that the application ought not to be approved.
[149] See footnote #54.

Sixthly, for the first, second and fifth reasons, the proposed development is inconsistent with, and contrary to, the LPP-NRURZ. In the absence of any cogent planning reason to depart from the policy, the application should be refused on that basis alone.
In addition, and seventhly, we cannot be satisfied that the proposed development will sufficiently protect the amenity of the adjoining dwellings at No 3 Ludlands Street and No 4 Ash Way from noise impacts caused by either the children's noise from Outdoor Play Area 1 (both residences) or the closing of car doors in the carpark (No 3 Ludlands Street).
Finally, in light of the various matters above, we would need a cogent planning reason to approve the development. In our view, and we find, there is no such cogent reason.
The applicant's case was, in effect, that the amenity impacts could be managed so as to make them acceptable and, if not, the need for the facility may be such as to overcome any residual impacts.
In our view, the amenity impacts are not inconsiderable. They include the impact on the residential character, the commercial intensity, potential noise impacts and the traffic safety risk. In each case we are either satisfied that they cannot be managed to be acceptable or we are not satisfied that they can be so managed. Further, in our view, while the evidence as to need weighs in favour of approval, it is unremarkable and we do not give it much weight; certainly not enough for it to overcome the negative local amenity impacts.

Conclusion

The proposed development is for a child care centre, which is a discretionary land use under LPS 24, and therefore capable of approval.
However, for the reasons above, the proposed development is inconsistent with the relevant planning framework, in that it is contrary to LPP-NRURZ. In addition, it will cause adverse amenity impacts within the locality, both as a result of its intensity of use, incongruity of character, and increased traffic safety risk. We are also not satisfied that it will not cause adverse noise impacts.
The applicant's main argument to counter these matters goes to need but, as we have explained, any satisfaction of need provided by the proposed development falls well short of a cogent basis to depart from the planning framework in this case.
Accordingly, having given due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up our findings on the issue before us, the correct and preferrable decision, for the reasons we have outlined, is to dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
For these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
21 DECEMBER 2023

APPENDIX A

The planning framework

State

PB 72

1Purpose

This planning bulletin outlines the revised child care centre guidelines and aims to:
(a)differentiate between child care related activities operating in existing residential area, such as family day care that takes place in dwellings, and non‑residential child care activities;
(b)outline a consistent policy approach to planning for child care centres; and
(c)advise of planning considerations in relation to the location and development of child care centres.

…
3.2Objectives

The objectives of this policy are to:
a)locate child care centres appropriately in relation to their surrounding service area;
b)minimise the impact a child care centre has on its surrounds, in particular on the amenity of existing residential areas;
c)minimise the impact the surrounds may have on a child care centre; and
d)consider the health and safety of children attending the child care centre within the confines of the planning system.

3.3Location of child care centres

The appropriate location of a child care centre is crucial in meeting the needs of children and their families. It also is crucial in limiting the impact a child care centre may have on surrounding activities and vice versa.
This may be achieved by locating child care centres on sites that are:
(a)distributed strategically to provide the maximum benefit to the community it serves;
(b)within easy walking distance or part of appropriate commercial, recreation or community nodes and education facilities;
(c)located in areas where adjoining uses are compatible with a child care centre (includes considering all permissible uses under the zoning of adjoining properties);
(d)serviced by public transport (where available);
(e)considered suitable from a traffic engineering/safety point of view; and
(f)of sufficient size and dimension to accommodate the development without affecting the amenity of the area.

Child care centres generally would not be suitable where:
…
(j)access is from a major road or in close proximity to a major intersection where there may be safety concerns;
(k)access is from a local access street which may impact on the amenity of the area due to traffic and parking;
…
(m)noise produced by roads, railways and aircraft are likely to have an adverse impact on the site[.]
…

3.5 Design of centres

The visual appearance of the child care centre, including any signage, building design, colour, scale, shape and form, should be in accordance with the local government local planning scheme or relevant local policy and applicable regulations. In the absence of any specific provisions, the visual appearance of the development should reflect the character of the area, enhance its amenity and be considered appropriate for regular use by children.
Parking areas should be located in front of the building. If this is not possible they should be clearly visible and easily accessible from the entry to the site. As a general rule, the minimum parking requirement for a child care centre, including staff parking, will be one space per five children. The number of parking bays may be varied by the local government given the specific provisions of the local planning scheme or relevant local policy and any unique circumstances relating to the proposed development, such as reciprocal parking arrangements, available public transport and street parking. Vehicles will be required to enter and exit the site in a forward gear, and there may be additional requirements resulting from a traffic impact assessment.
Outdoor play areas should be in a safe location on the site, and away from any adjoining noise-sensitive premises, such as dwellings and nursing homes.
Landscaping should be provided in accordance with the relevant local planning scheme or relevant local policy or applicable regulations. In the absence of any such provisions, landscaping will be required along the street frontage of the development to a standard equal to that required or provided for on adjacent properties. Landscaping should not include potentially hazardous heights, landscape fittings, and potentially toxic plants.
3.6 Traffic impacts

A traffic impact statement/assessment should be required for the development of a child care centre.
This statement/assessment should address:
(a)the site characteristics and surrounding area;
(b)the proposal and its expected trip generation;
(c)parking requirements, including the design of parking areas, and any pick-up and drop-off facilities;
(d)existing traffic conditions and any future changes expected to the traffic conditions;
(e)current road safety conditions, including a crash history in the locality; and
(f)the expected impact of the proposed development on the existing and future traffic conditions.

A child care centre should be approved only if it can be demonstrated that it will have a minimal impact on the functionality and amenity of an area and will not create or exacerbate any unsafe conditions for children and families using the centre, or for pedestrians or road users.
3.7Noise impacts

A noise impact assessment may be required for the development of a child care centre.
The objectives should be to limit the noise impact of the child care centre on adjacent properties, and also limit any noise impact from external sources on the child care centre. This may be achieved either by physical separation, design and layout of the centre or by implementing noise-mitigation measures, such as acoustic treatments to buildings.
As a general rule, the hours of operation of a child care centre should be limited to between the hours of 7 am and 7 pm weekdays and on Saturdays, unless otherwise agreed to with the local government.
Although each application will need to be assessed on its merits, the following basic principles apply:
(a)Where a child care centre is located adjacent to a noise‑sensitive use, such as houses, retirement villages and nursing homes, the noise-generating activities of the child care centre, such as the outdoor play areas, parking areas and any plant and equipment, are to be located away from the noise-sensitive use.
(b)Where, due to design limitations or safety considerations, noise-generating activities such as outdoor play areas are located close to noise-sensitive uses, appropriate noise mitigation is to be undertaken.
(c)As there is now a considerable body of research that demonstrates the negative impact of inappropriate noise on child development, the design and construction of buildings may include noise-mitigation measures to reduce impact from external sources and to achieve accepted indoor noise limits.

DPS-CCP

1Policy intent

This position statement outlines the Western Australian Planning Commission's (WAPC) location and design guidance to decision‑makers, proponents and the community for a consistent policy approach to planning for child care premises in Western Australia.
…
2.1Supply and demand for child care premises

…
The rising demand for child care premises means that these services are becoming larger and have a potentially greater impact, particularly regarding more vehicular traffic related to larger numbers of children, carers and parents.
While the WAPC strongly supports the provision of necessary services, it is important to emphasise that the need for a service does not justify development in inappropriate locations.
…
4Policy objectives

The [relevant] objectives of this policy are to:
•encourage the co-location of child care premises on scheme reserves (intended for community and educational uses) and mixed commercial type zones
•locate child care premises where they are compatible with and complementary to residential land use and the road network
•ensure child care premises do not have a detrimental impact on the amenity of the adjoining residents and the locality
…
5.4Suitable requirements for child care premises

Convenient access to a child care premises is crucial in meeting the needs of children and their families. Also, it is important to limit the potential impact a child care premises may have on surrounding land uses as well as the potential impact that surrounding land uses may have upon the child care premises.
Sites selected for child care premises should be level, regular in shape and of sufficient size to accommodate the proposed development. This includes all buildings and structures, car parking bays for staff and parents, pick up and set down area (depending on the age of children accommodated at the premises), outdoor play areas and landscaping, in accordance with the requirements of the local planning scheme, local planning policy and the ECSNR-WA 2012.
…
Child care premises may be located and accord with the following:
•Child care premises and playgroups may be co-located on a private or public-school site …
•Child care premises may be located adjoining or nearby to a school site, on residential zoned land provided that outdoor play areas are at ground level adjoining the school site where applicable and do not have an adverse impact on the amenity of the locality.
•Child care premises may be co-located on suitable region or local scheme reserves such as public purposes or community purpose reserves respectively and co-located with, for example, an aquatic centre or hospital where permitted or permissible under the region scheme (where applicable) and local planning scheme with adequate setback from residential dwellings.
•Child care premises may be co-located on shopping centres, office or commercial zoned land where the land use is permitted or permissible.
•It should be suitably located to provide safe and convenient access to the community it serves.
•It should be located in areas where adjoining land uses do not adversely impact a child care premises.
•It should be located in areas considered suitable from a transport planning/engineering pedestrian and vehicle safety point of view.
•It should provide convenient access to public transport.
5.5Undesirable characteristics for child care premises site

Child care premises are not suitable where in the opinion of the decision-maker:
•The size and dimension of the site is inadequate to accommodate the development and accordingly likely to adversely affect the amenity of the locality.
•The amenity of the adjoining and nearby properties would be adversely affected by noise, traffic movement, insufficient parking and pedestrian safety.
•Access is proposed from a major road or is located within proximity to a major intersection where there may be safety concerns for pedestrians and vehicles.
•Access is from a local access street which may impact on the amenity of the area due to high peak-hour traffic volumes.
…
•Noise and/or emissions generated by roads, railways and aerodromes or airports are likely to have an adverse impact on the child care premises.
…

Mitigation measures may be applied to a proposed child care premises to address any adverse impacts. These measures may be considered and approved by the decision-maker having first consulted with relevant State agencies and expertise in the related field as applicable.
5.6Design of child care premises

The visual appearance of the child care premises, including any signage, building design, colour, scale, shape and form, should be in accordance with the local planning scheme and/or local planning policy and ECSNR-WA 2012. The development should be complementary to the residential character of the area where it abuts residential dwellings, enhance its amenity, and be suitably designed from a safety point of view and include facilities appropriate for regular use by children.
Car parking at a child care premises in a residential area that is visible from the street should complement the residential streetscape character.
…

Local

LPS 24

Under LPS 24 the subject site is zoned Medium and High Density Residential with a residential density coding of R25.
Clause 1.6 provides general objectives, and the following are relevant:
a)to zone the Scheme Area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme Area;
b)to secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof;

The proposed development is categorised a 'Child Day Care Centre' (CDCC) which is defined in Appendix 1 to mean:[234]
[234] Exhibit 3, page 537.
land and buildings used for the daily or occasional care of children in accordance with the Community Services(Child Care) Regulations 1988.

Table No.1 - Zoning Table provides a CDCC is a 'D' use in the Medium to High Density Residential zone.
A class 'D' use, in relation to a zone, as defined in the Deemed Provisions:[235]
[235] At cl 1.
(a)means a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval; but
(b)does not include a class A use;

For CDCCs Table No 2 – Development Standards (Table 2) provides the following [relevant] development standards.[236]
[236] Exhibit 3, page 497. The respondent accepts the proposed development complies with the minimum setback standards in Table 2, Exhibit 6, para 35.
The minimum car parking provision required for the proposed development is 1 bay per staff member and 5 bays for visitor cars.
The maximum site coverage is 30%.
The maximum plot ratio is 0.3.
The minimum landscaping required is 10% if lot area to include 2 metre wide strip provided to street frontage.

Clause 8.2 provides discretion to modify development standards and cl 8.2.1 states:[237]
[237] Exhibit 3, page 494.
Except for development in respect of which the Residential Design Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with a development standard prescribed by the Scheme with respect to minimum lot sizes, building height, setbacks, site coverage, car parking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:
a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.

Clause 8.3.7 addresses the general appearance of buildings and preservation of amenity and provides:[238]
[238] Exhibit 3, page 501.
The Council may refuse to approve the commencement or carrying out of any development involving any building or other work if, in its opinion, the proposed building or other work would have an adverse affect on the amenity of the locality. In exercising its discretion under this clause, the Council shall apply the provisions of sub-clause 3.6.1 in so far as they are applicable, and in addition shall have regard to:
a)the external appearance of the building and any associated structures and landscaping;
b)the dimensions and proportions of the building or structure;
c)the materials used in the construction of the building taking into consideration texture, scale, shape and colour;
d)the effect of the building or works on nearby properties, and on the occupants of those buildings;
e)the effect of the building on existing and future services and community facilities. In particular, drainage, sewerage, water reticulation and existing or proposed community facilities such as schools, parks, civic buildings, malls and pedestrian links;
f)the effect on the landscape and environment generally; and
g)any other matter which in the opinion of the Council is relevant to the amenity of the locality.

Clause 8.4.5 addresses landscaping for off-street parking, relevantly as follows:
Boundary landscaping shall be provided for parking facilities visible from any public street and interior landscaping shall be provided for open parking facilities with 21 or more parking spaces. Landscaping shall comply with the following requirements:

a)all areas between parking facilities and adjoining streets shall have a minimum of 2m wide permanent landscape area. In addition, the Council may also require permanent landscaping between the parking facilities and all other side and rear property lines;

…

LPP-NRURZ

The purpose of the policy is:[239]
[239] Exhibit 3, page 668.
This policy is intended to guide the development of those non‑residential uses that may be considered in the City of Bayswater's residential zones.

The policy objectives are to:[240]
[240] Ibid.
1.Ensure that development is consistent with, and will not detract from residential character and amenity.
2.Ensure that any potential undue amenity impacts are appropriately managed.

The policy sets out the following relevant locational requirements:[241]
[241] Ibid.
1.Non-residential uses in residential zones shall be located adjacent to established commercial, industrial or mixed-use zones and facing the same street as those land uses, to act as a transition between them and surrounding residential areas.
2.Proposals to locate non-residential uses in residential zones on local access roads, in culs-de-sac and/or situated in isolation between residential uses will generally not be supported.

…

The policy sets out the following relevant operational requirements:[242]
[242] Exhibit 3, page 669.
1.A non-residential use in a residential zone shall not unduly impact upon local amenity through traffic generation, car parking difficulties, or emissions including, but not limited to noise, odour or waste.
2.Non-residential uses in residential zones will generally be permitted to operate between the hours of 7:00 a.m. and 7:00 p.m. and not on Sundays or public holidays.
3.Proposals are to be accompanied by a management plan, detailing how the use will be operated and what measures will be taken to minimise undue amenity impacts on adjoining residential uses.

…

The policy sets out the following relevant development requirements:[243]
[243] Ibid.
1.The development is to be of a scale and form that is consistent with the surrounding residential area, taking into account the requirements of the town planning scheme and the Residential Design Codes of Western Australia (as amended).
…
5.Landscaping is to be used to enhance the streetscape, especially where car parking is proposed within the street setback area.

…

LPP-TPLSVP

The purpose of the policy is:
To outline the requirements for providing, maintaining, protecting and removing trees on private land and within the street verge. These requirements outline obligations applicable to the landowner associated with the development of land in the City of Bayswater.
To increase the tree canopy and improve the neighbourhood amenity, character and sense of place.

The relevant objectives of the policy are to:
…
3.Assist with community comfort through the provision of shade, reduction of glare, improved neighbourhood amenity, character and sense of place, and provide visual screening and privacy.
4.Provide a diverse range of tree sizes and species to enhance visual interest and to assist with providing a more resilient urban forest.

…

The relevant 'Requirements for Trees on Private Property' under the policy are:
…
4.A 'tree growth zone' is required around the entire base of all new trees or existing trees that are to be retained on the site, as follows:
(a)a minimum radius of 2m for a 'standard tree'; and
(b)a minimum radius of 3.5m for a 'large tree'.

5.No structure is to encroach within the 'tree growth zone', above or below ground level. The 'tree growth zone' is to be contained completely on the site, except for 'trees worthy of retention'.
6.If the 'tree growth zone' is situated on top of a 'hard surface', a report by a suitably qualified and currently practising consulting arborist is required, at the expense of the applicant. The arborist report is to demonstrate that the design of the 'tree growth zone' will provide sufficient space for the tree to grow to maturity, to the satisfaction of the City of Bayswater.

…

Activity Room	Age group	Places	Staff	Indoor Area (m²)	Outdoor Area (m²)
1	0 to 2	9	2	36	OPA 1-141
2	0 to 2	8	2	33	OPA 1-141
3	3+	20	2	53	OPA 3-151
4	2 to 3	15	3	54	OPA 3-351
5	2 to 3	15	2	52
6	3+	20	2	51
Total	87	13
Required Indoor Area: 3.25m² per child Required Outdoor Area: 7m² per child

Child Age (years)	Ratio -Educators to Children	Original Proposed Number of Children	Educators Required	Amended Places proposed (in closing submissions)	Amended Educators Required
0 to 2	1:4	17	5	16	4
2 to 3	1:5	30	6	25	5
3 +	1:10	40	4	40	4
Totals	87	15	81	13