IENCO and CITY OF MELVILLE
[2007] WASAT 56
•26 FEBRUARY 2007
IENCO and CITY OF MELVILLE [2007] WASAT 56
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 56 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:41/2006 | 21 JULY 2006, 27 OCTOBER 2006 | |
| Coram: | MR P McNAB (MEMBER) | 25/02/07 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Review allowed Decision set aside and conditional approval given | ||
| B | |||
| PDF Version |
| Parties: | JANELLE IENCO CITY OF MELVILLE |
Catchwords: | Town planning Child care centre Residential zone Residential uses adjoining site Preference for corner site Location on corner of major road and minor road Whether appropriate site Usage of roads Safety of intersection Traffic and noise issues Compliance with Noise Regulations Impact on amenity of neighbours Application of local Child Care Policy Local precinct zone Application of draft WAPC Bulletin Tribunal found proposal consistent with planning framework Weight to be given to neighbours' objections WA, Victorian and NSW cases considered Traffic experts with divergent views Which expert's views to be preferred Evidence assessed against planning principles from cases Disputed conditions Application for review allowed Approval granted on conditions to be finalised by Tribunal |
Legislation: | City of Melville Community Planning Scheme No 5, cl 2.3, cl 2.4.6, cl 7.8, cl 7.8(f) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 242 State Administrative Tribunal Act 2004 (WA), s 37(3) |
Case References: | Burnett and Town of Cambridge [2006] WASAT 29 Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 Jones and Shire of Murray [2006] WASAT 140 Jones v Boroondara CC [2006] VCAT 1833 Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119 Land Alliance Pty Ltd v City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 Lappin v Banyule CC [2007] VCAT 143 Litis & Anor and Shire of Kalamunda [2006] WASAT 130 Litis and Shire of Kalamunda [2006] WASAT 130 Love and City of Joondalup [2006] WASAT 69 Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140 Sharose Investments Pty Ltd & Anor and City of Joondalup [2006] WASAT 271 Stein & Anor and Shire of Chapman Valley [2006] WASAT 105 Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346 Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 Victory Investment Group v Whitehorse CC [2005] VCAT 1863 |
Orders | On the application determined by Member Peter McNab on 26 February 2007, it is ordered that:,1. The application for review is allowed.,2. The decision under review is set aside and in substitution thereof there will be a decision granting planning approval on such conditions as are reasonable and appropriate to be approved by the Tribunal by minute of consent orders or otherwise.,3. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate final consolidated conditions, not inconsistent with the reasons for decision of the Tribunal (and including the conditions already agreed upon), to be filed by the respondent within 21 days of the date of this decision.,4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of par 3 of these orders. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : IENCO and CITY OF MELVILLE [2007] WASAT 56 MEMBER : MR P McNAB (MEMBER) HEARD : 21 JULY 2006, 27 OCTOBER 2006 DELIVERED : 26 FEBRUARY 2007 FILE NO/S : DR 41 of 2006 BETWEEN : JANELLE IENCO
- Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Town planning - Child care centre - Residential zone - Residential uses adjoining site - Preference for corner site - Location on corner of major road and minor road - Whether appropriate site - Usage of roads - Safety of intersection - Traffic and noise issues - Compliance with Noise Regulations - Impact on amenity of neighbours - Application of local Child Care Policy - Local precinct zone - Application of draft WAPC Bulletin Tribunal found proposal consistent with planning framework - Weight to be given to neighbours' objections WA, Victorian and NSW cases considered - Traffic experts with divergent views - Which expert's views to be preferred - Evidence assessed against planning principles from cases - Disputed conditions - Application for review allowed - Approval granted on conditions to be finalised by Tribunal
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Legislation:
City of Melville Community Planning Scheme No 5, cl 2.3, cl 2.4.6, cl 7.8, cl 7.8(f)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 37(3)
Result:
Review allowed
Decision set aside and conditional approval given
Category: B
Representation:
Counsel:
Applicant : Mr S Bain (Acting as Agent)
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicant : SJB Planning and Urban Design (Planning Consultants)
Respondent : Allerding Burgess (Planning Consultants)
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Jones and Shire of Murray [2006] WASAT 140
Jones v Boroondara CC [2006] VCAT 1833
Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119
Land Alliance Pty Ltd v City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Lappin v Banyule CC [2007] VCAT 143
Litis & Anor and Shire of Kalamunda [2006] WASAT 130
Litis and Shire of Kalamunda [2006] WASAT 130
Love and City of Joondalup [2006] WASAT 69
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Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140
Sharose Investments Pty Ltd & Anor and City of Joondalup [2006] WASAT 271
Stein & Anor and Shire of Chapman Valley [2006] WASAT 105
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54
Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Victory Investment Group v Whitehorse CC [2005] VCAT 1863
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Summary of Tribunal's decision
1 The Tribunal was faced here with an application for planning approval for a medium sized child care centre. This centre was proposed to be built in a residential area on a corner site on busy Riseley Street, Booragoon. The City of Melville's planning framework seemed to contemplate the development of child care centres in some residential areas, but subject to the consideration of amenity issues (including those related to traffic, safety and noise issues).
2 The City, influenced, it seems, by significant opposition to the proposal from immediately affected neighbours, rejected the proposal. This was against their planning officers' recommendation for conditional approval.
3 The Tribunal heard extensive evidence from the affected neighbours, planners, and noise and traffic experts. The Tribunal also reviewed the local and interstate cases on child care centres, and examined the planning framework of local and State policies that were applicable to the precinct.
4 The Tribunal concluded that planning approval ought to be given. The Tribunal was not satisfied that the impact on the amenity of the affected area, when properly considered, would be as extensive as the objectors had submitted.
5 The Tribunal rejected any argument that there was a "presumption against" the development. When the planning instruments, law and practice in this area were closely analysed, the result was clear: residential areas and child care centres were not necessarily incompatible land uses when subjected to reasonable limitations on the impact of them on residents.
6 This could be achieved by, for example, locating centres on corner lots and by limiting or controlling their design, size and operating hours. All such matters were in place here.
7 The Tribunal therefore granted approval subject to the finalisation of some outstanding conditions.
Subject land and surrounds
8 The land the subject of this development application is Lot 457 (No 2) Worthington Road, Booragoon in the City of Melville. A child
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- care centre is proposed for this site. The proposal has been rejected by the respondent, the City of Melville. The grounds of rejection raise concerns about the impact on the amenity of the immediate neighbourhood, including traffic and noise issues. Several neighbours in the area have been vocal in their opposition to the proposal.
9 The subject land is on the north-eastern corner of the intersection of Worthington Road and Riseley Street and measures some 892 square metres. The land has been improved by the construction of a single storey dwelling (currently vacant) which is located towards the western (Riseley Street) end of the site. The site also has a corner truncation of some 18 square metres.
10 All of the land in the immediate vicinity of the site is residential in nature. However, Mr Bain, appearing for the applicant, observed that:
"[Located] to the north along Riseley Street approximately 500 metres is the Garden City shopping centre and to the east approximately 200 metres is Karoonda Park. Also located along Riseley Street are a Podiatrist, Veterinary Clinic and Lifestyle Clinic. Riseley Street is dual lane each way separated by a median and Worthington Road is 20 metres in width."
The proposed development
11 The applicant proposes to change the use of the subject land from that of a single house to that of a child minding centre. The existing vacant house would be modified to accommodate a total of 40 children supervised by five staff. The proposal includes various landscaping around the western and southern perimeters of the subject land, and the provision of 12 car parking bays, including a disabled persons' parking bay. The existing crossover is proposed to be widened to become a double crossover.
Procedural history
12 The matter commenced with the respondent in late August 2005. The respondent eventually rejected the applicant's revised proposals in mid-January 2006, and an application for review was commenced in this Tribunal in February 2006. Various directions hearing were held in March and April 2006, and the first stage of the matter was heard in July 2006. Further directions hearings took place in August and early October, and the remaining oral evidence and final submissions were concluded in October 2006. The final of the exchanges on outstanding
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- conditions (see further, below) came into the Tribunal in late November 2006.
The planning framework
13 The land is zoned "Urban" under the Metropolitan Region Scheme. The site is locally zoned "Living Areas R25/40" under the City of Melville Community Planning Scheme No 5 (CPS 5). The proposed use is an "S" use. It is common ground that such a use is not permitted unless the Council, or on review this Tribunal, exercises its discretion having regard to CPS 5 and planning principles and grants approval. The zoning in the surrounding areas includes "Living Areas R17.5", "Living Areas R20" and "City Centre" and "City Centre Frame" zonings. The subject land (and some of the objecting neighbours' land) is also located in the "Living Area R1 - Riseley Street" precinct.
14 Mr Bain draws attention to cl 2.3 of CPS 5 which refers to the encouragement of community services to be provided at accessible locations throughout the City of Melville "in an equitable manner [and] for the benefit of the community". Mr Bain also drew attention to cl 2.4.6, which refers to the location of local centres and other community services so as "to be readily accessible to each neighbourhood having due regard to existing schools, commercial centres and public transport".
15 Both parties pay particular attention to the Statement of Intent contained within CPS 5 in relation to the Living Area R1 - Riseley Street zone. This statement provides as follows (emphasis added):
"Primarily medium density residential to take advantage of good public transport links but may include other activities such as home occupations, parks, religious, public recreational and educational activities, provided they are designed in a residential style and are not developed to such an intensity that they disturb the Precinct. The residential character of Riseley Street shall be preserved".
16 Clause 7.8 of CPS 5 refers to various, but more or less standard and generalised, planning considerations which form the criteria by which the development application ought to be assessed. One of these criteria (cl 7.8(f)) refers to regard being had to relevant policies. The City of Melville Child Minding Centres Policy No PB 18 is particularly relevant and is considered separately, below.
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17 It is convenient at this point to summarise the respondent's view of the effect of these various planning instruments.
Summary of respondent's views of the planning framework
18 Mr P Fitzgerald, a town planner who was called by Mr Allerding (who appeared for the respondent), gave evidence which may be summarised as follows:
1. That there was "a presumption against" the location of a child minding centre within this Living Area and that accordingly the onus was on the applicant "to demonstrate that the centre would not disturb the Precinct".
2. Residential amenity would be affected by noise and the close proximity of the proposed car park of the centre to an adjoining second storey habitable room and balcony. (This refers to Lot 458 – No 4 - which is the adjoining lot to the east of the subject land and is considered further below.)
3. The immediate locality is exclusively residential in nature and therefore there would be, if approval were to be given, the introduction of a commercial use to this area, "contrary to the established character/amenity of the locality".
4. There were a considerable number of objections to the proposal which provided evidence that "the introduction of such [a] commercial use [could be] a disturbance to the residential nature of their locality".
5. That other commercial uses existing on Riseley Street, such as the Garden City Shopping Centre (to the north) and the commercial area at the intersection of Riseley Street and Canning Highway (further north), "are not situated in a predominantly residential area and are zoned specifically for that purpose".
Local policies relating to child minding centres
19 The applicant's representative, Mr Bain, produced a detailed submission showing how the applicant's proposal measured up to each of the policy requirements in the City of Melville Child Minding Centres Policy No PB 18. (This detailed policy originated in 1996 and was reviewed in 2000.)
20 The applicant's submission on each of the criteria is reproduced as follows:
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21 In response, Mr Fitzgerald, called by the respondent, makes the following points:
1. There is a shortfall in the minimum site area which is specified to be 900 square metres. The proposal here is only 892 square metres. (Mr Fitzgerald properly concedes that the "shortfall in site area in the context of the [child minding centres policy] is not considered to be substantial from a planning perspective".) In any event, Mr Bain draws attention to the truncated corner, proper allowance of which would bring the site area very close to the minimum. The Tribunal does not see this issue as critical.
2. The subject land is not close to abutting shopping centres, workplaces, schools, community facilities, public open space and civic facilities. Mr Fitzgerald draws attention to the fact that the proposal is 500 metres from the nearest commercial activity and is in a highly residential locality.
3. It was likely, in terms of residential amenity expectations, that local road use would remain for access (at relatively low levels) rather than "attracting [additional] external traffic".
The WAPC's guidance on child care centres
22 The Western Australian Planning Commission (WAPC) issued its Planning Bulletin No 72 in June 2005 in the form of a draft policy in relation to child care centres. The main purpose of this Planning Bulletin was to outline a consistent policy approach to planning for child care centres, and to advise of the relevant planning considerations in relation to the location and development of child care centres. The Bulletin notes that:
"Usually adequate provision is made for the development of child-care centres as part of the structure planning for new areas of development, and it often is in the existing residential areas
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- where the development of a child-care centre has the most impact."
23 The Bulletin notes that, importantly, "[t]here is a well-documented need for child care centres and a strong emphasis on their appropriate distribution and location". The Bulletin goes on to address, in general terms, matters such as the location of child care centres (including a note of caution in relation to their location near "major roads"); their site characteristics; the design of such centres; traffic impacts; noise impact; and the community demand for child care centres. On this last point, the WAPC notes that it:
"[I]s of the view that although a new [child care] centre does not have to demonstrate that there is a need for it to locate in a specific area, there may be a requirement for it to demonstrate that it will not have an adverse impact on the amenity of the area or the level of service provided by similar existing or approved facilities enjoyed by the community."
24 The factors identified in the WAPC Bulletin No 72 are to some extent reflected in the City of Melville's Child Minding Centres Policy, even though that policy pre-dates Bulletin No 72. As will appear below, these matters are at the core of the decision to be made by this Tribunal.
25 The Tribunal notes that in Litis & Anor and Shire of Kalamunda [2006] WASAT 130 considerable attention was paid by this Tribunal as to whether the child care development there under consideration "complied" with this Planning Bulletin. This indicates that the criteria in that Bulletin ought to be given some weight, notwithstanding both that it is not a directly applicable regulatory instrument, and that it is still in its draft form.
Proposed conditions
26 As was mentioned above, the final exchange between the parties in relation to conditions was filed in late November 2006.
27 It was intimated by both parties, during the hearing, that all of the conditions could be agreed upon, subject to one issue involving the construction of the carport and the sound-reducing wall over or near a sewer main adjoining No 4 Worthington Road. In the event, the applicant produced a written approval from the Water Corporation dated 31 October 2006 permitting the erection of the carport and the Tribunal assumes that that hurdle has now been overcome.
(Page 13)
28 Agreement has in fact been reached on some 30 conditions. These are: all 12 of the main development conditions (for example, hours of opening); nine "standard" conditions (for example, those to do with rubbish removal and the like); and nine of the 15 proposed "special" conditions, which broadly speaking represent matters that emerged at the hearing or that appear to build upon matters raised at the hearing.
29 The six matters left in dispute are:
1. The deletion of one car bay and the movement of the bays to permit some extra space between bay 10 and the northern boundary (No 5).
2. The construction of a 2 metre high masonry wall on the eastern boundary (No 6).
3. The construction of a 2 metre high masonry wall on the northern boundary (No 7).
4. The construction of a variable boundary fence on the southern boundary (No 8).
5. Two openings in the northern building wall to be replaced with glass blocks or the like (No 10).
6. Related to proposed car parking changes, the maximum number of children to be set at 30 with five staff (No 11).
30 The Tribunal has not had the benefit of any specific evidence, arguments or considered submissions in respect of these unresolved conditions. Importantly, two of the conditions proposed by the respondent have the effect of reducing the number of children permitted to attend from 40 to 30. They appear to originate in the City's planning officers' recommendations. These officers otherwise recommended approval of the application.
31 Accordingly, it will be necessary for the Tribunal to fashion orders reflecting this rather unsatisfactory situation (see below).
The applicant's evidence
32 Ms Ienco gave evidence that she had worked in the child care industry for some 9 years and was currently completing a Diploma of Children's Services. She said that she saw the location of the property on a corner as meeting the critical location criteria under the Council's policy. She thought that the location was also "part of a natural network of connected learning opportunities in the community. It is located near
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- community learning resources such as schools, nature areas, libraries and places of work".
33 Much of Ms Ienco's evidence concerned her compliance with the regulatory regime surrounding child care in Western Australia and as regards her commitment to minimising the impact of the centre on residential amenity in the area. For example, she undertook to retain the "residential character" of the existing building so that it would harmonise with the surrounding area. Bold and lurid external colours were not part of her proposal.
34 She gave evidence that there were four existing child minding centres in the immediate area and that there was a significant demand for these services, such that many of them were unable to provide places for parents who were looking for child care. Of the 20 or so child care centres in the City of Melville, Ms Ienco estimated that 13 of these were "located on a main road" and six were located in the middle of residential areas. In cross-examination, Ms Ienco stated that she had rarely seen incidents of poor parking or unsafe access by motor vehicles at the centres that she had worked in. The balance of her cross-examination did not seek to impugn her material evidence set out above.
35 The Tribunal accepts Ms Ienco's evidence.
Objectors' evidence
36 In her witness statement, Ms Ienco drew attention to the somewhat cool response that she had received when she consulted with her proposed neighbours in the immediate vicinity of the subject land. This local opposition was reflected in proceedings in the Tribunal that were brought by certain proposed interveners. These parties were initially represented by counsel. The Tribunal made various orders in April 2006. So far as is relevant, the orders that were made were as follows:
"1. Leave is refused in relation to an application made by certain proposed interveners under s 37(3) of the State Administrative Tribunal Act 2004.
2. The application in the alternative for leave to make a submission under s 242 of the Planning and Development Act 2005 is refused as premature, but leave is granted to the [proposed interveners] to make, if necessary, a further timely application to the same effect at or during the hearing of the matter."
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37 The orders made above reflect the Tribunal's decision in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54, a decision of the President of this Tribunal.
38 In the event, the respondent called several of the neighbours to give evidence in the matter and no applications for leave were made. Before turning to the specifics of that evidence, it is convenient to note that the applicant's representative, Mr Bain, drawing upon the officers' report, fairly summarised their concerns, based on some 114 objections that were received by the City, as follows:
"• Traffic/dangerous intersection
• Lot size too small
• Commercial development unacceptable in a residential area
• Devaluation of residential property
• Noise
• Car parking
• Health and safety
• No need for a child minding centre in the area."
39 It should be immediately reaffirmed that the alleged diminished value of affected neighbours' land is not, in itself, a relevant planning consideration. See, for example, Planning & Environment Victoria (Butterworths Looseleaf Service) at [1.105.1]: "Depreciation of land values in the locality as a result of a proposed development is not a planning ground".
40 In the event, five witness statements from surrounding neighbours were received by the Tribunal. This evidence, so far as was relevant, was as follows.
41 Mr F Csiczak lived at 1 Worthington Road, directly across the road from the subject land. He had lived there for some 33 years and was particularly concerned about the "safety" of the site. He submitted that the corner of Riseley Street and Worthington Road was a "dangerous corner" due to the high volume of traffic. He was concerned about the poor state of some of the infrastructure on the corner, such as missing or
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- damaged kerb and stanchions. He told the Tribunal that he and his wife "constantly hear squealing brakes and horns blaring and then the inevitable bang".
42 He was also concerned that Worthington Road was too narrow as regards vehicles entering that road in relationship to other vehicles that may have been parked in front of the proposed child care centre. He also drew attention to his own research which showed that there were some 20 other child minding centres, not including church-based centres, within an eight kilometre radius of the site.
43 Mr W Neethling lived at 3 Worthington Road, also directly across the road from the subject land. He had lived there for over 6 years, was particularly concerned about the noise that would radiate from the proposed child care centre. His other concerns were about insufficient parking, lack of turning space, cars queuing, traffic accidents and higher traffic volume. His wife was a postgraduate student and he was running a sole trader business from his premises, and he believed that the noise that would come from the centre would affect both of these activities. He suggested that vacant commercial premises left unguarded at night might attract security concerns.
44 Mr N Pritchard and Ms J Pritchard also gave evidence. They lived directly next door to the subject land, at 4 Worthington Road. First, they drew attention to the location of their main bedroom on the second storey of their property. It was suggested that this bedroom would be immediately adjacent to the proposed parking lot and only metres away from the children's playing area. Early morning arrivals, from 6.30 am onwards, and the associated noise would, they submitted, lead to an "unacceptable and unfair intrusion of [their] lifestyle". Further, Mr Pritchard had a home study, also located on the second storey of his property. He claimed that his postgraduate study would be interfered with by noise from the subject land. He also claimed that their courtyard entertaining area and their outdoor back garden area and pool would similarly be affected. He submitted that there might be problems with parents parking on the verge of his property and blocking his driveway. He suggested that there would be an increase in traffic volumes in what was already a busy, if not dangerous, intersection at the corner of Riseley Street and Worthington Road. The Pritchards were also concerned about the recommendation contained in the joint noise experts' report (see below) as regards the construction of a "roof structure of sheet metal" built on or near to their border, which purportedly would shield them from noise.
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45 Mr B Rettinger lives with his family at 5 Worthington Road. He trained as a civil engineer and that profession is reflected in his comprehensive witness statement. The subject land is located diagonally across Worthington Road from his house. His position was that while he was not generally opposed to child minding centres he believed "that this particular site is inherently unsafe, the lot size is too small, and that it is in the wrong location for such a business". He contrasted the Melville Day Care Centre, where his pre-school children attended, with the subject proposal. He claimed that the Melville Day Care Centre was on a much larger lot size, with adequate parking and drop off facilities and was in a much safer location. He submitted that the proposed centre was too small in size to admit babies (that is, those children less than 2 years old) "thus making [the proposed] services extremely limited to those parents who would consider using this facility". Mr Rettinger was worried about the safety of the intersection, bearing in mind that Riseley Street was a major arterial road and that the proposed development's entry and exit access driveways were only some 30 metres from this "dangerous intersection".
46 Mr Rettinger estimated that, based upon some 22 000 vehicles movements per day on Riseley Street that, taking into account all of the additional activities at the proposed centre, 500 additional vehicle movements per week were possible, and then mostly within intense periods in the morning and in the evening. These peak periods would coincide with general traffic peak periods. Mr Rettinger summed up his position as follows:
"I am also greatly concerned about what life will be like, and how dramatically our personal daily amenity will be affected by the operation of a child minding centre located diagonally across from our home. The negative amenity effects on my family will include such difficulties as: confronting queues of additional traffic using the centre just before, during, or after we leave for work in the mornings and also when we arrive home in the evenings; additional nuisances from both on-street parking and from the likely turn-arounds in our driveway by parents or others using the centre; the noise impacts that will directly affect us (a two-story house with bedrooms upstairs and an outdoor living area on the northwest corner of our lot). Noise impacts during the mornings during drop-offs, during the daytime (children's play time) and in the evenings during pick-ups will have significant effects on all the nearby residents, at least three of whom are fully retired, and these effects alone could well destroy the amenity of our local neighbourhood."
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47 The final objecting neighbour called by the respondent was Ms M Thomas who lives at 216 Riseley Street, directly next door to the subject land (to the north). Ms Thomas had concerns which were similar to those of the other objectors. These included her loss of amenity caused by noise and increased traffic volume. Ms Thomas noted in particular that her main bedroom was located directly next door to the proposed development site; further, that she had an outdoor pool and entertaining area that would be adversely affected by the proposed development. In her case, these problems would be exacerbated because she was retired and spent a considerable amount of time at her home.
The evidence of the experts: noise
48 In Land Alliance Pty Ltd v City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119; a three-Member panel of this Tribunal, in a case concerning a child care centre observed, at [29]:
"It is clear from the evidence provided by both parties, that the modelling of noise is an inexact science. The results will depend upon how long the representative test period is, whether an influencing factor is assigned, and the quality of the data set used to underpin the modelling. It will depend upon whether a value is added to take into account the tonality, modulation or impulsiveness of the noise. It will also depend upon where, within the noise receiving property, the measurement of noise is taken."
49 Both parties engaged acoustic experts in relation to the possible impact on amenity from the noise originating by activities such as the sound of children playing, and motor vehicle traffic movements, including the early morning noise impact of cars arriving and departing, and their doors opening and closing. Mr T George, who is a senior acoustical engineer with Lloyd Acoustics Pty Ltd, acoustical consultants, filed a witness statement on behalf of the respondent. That company had originally acted for a residents' action group, comprised of many of the objectors whose evidence has already been referred to. Mr George reviewed the work of Herring Storer Acoustics, who had been engaged by the applicant for the purposes of their original application. Mr George said:
"I am of the opinion that the proposed child minding centre at 2 Worthington Road will be of adverse noise impact to the residences at numbers 1, 3 and 4 Worthington Road, since my calculations show that noise levels will exceed the prescribed
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- standards of the Environmental Protection (Noise) Regulations 1997."
50 In October of 2005, Mr T Reynolds from Herring Storer Acoustics had provided to the respondent as part of the applicant's application for planning approval an acoustic assessment of the proposed child care centre. The report considered noise emissions from the child care centre including children playing outside and vehicle movements within the car park. The summary contained in that report includes the following observations:
"In terms of child play activities, prediction of the worst case noise propagation indicate that compliance with the Regulatory criteria [that is, the Regulations referred above] will be achieved at all residential locations, with the proposed layout and low noise amelioration is required.
Also noise from cars, including closing of doors and engine start-up, will also be within the relevant criteria at all neighbouring residences."
51 Although the evidence of Mr George in his subsequent review of Mr Reynolds' work indicated that he had different assumptions in respect of the calculation of noise levels, both experts, when they finally met, produced a joint statement as follows:
"• The opening time of the child minding centre must be no earlier than 7.15am rather than the proposed 7.00am.
• North and east boundary fences to be replaced by a new solid wall, free of any gaps, of minimum height 1.9 metres and of a material having a surface mass of at least 10kg/m2 (e.g. brick, limestone, concrete, hardifence etc).
• Car park is to include a roof structure of sheet metal as per the attached sketch by Herring Storer Acoustics (Sketch 01 - Carport Section) covering all car bays.
• Southern side of the child play area to be a solid wall, free of any gaps, of minimum height 1.3 metres and of a material having a surface mass of at least 10kg/m2.
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- • Northern doors of Kindy Room to remain closed whilst room is in use.
• Area on northern side of building not to be used as a play area."
52 Both experts agreed that provided these steps were undertaken by the applicant then there would be "no areas of disagreement" between them. The Tribunal understands that this means that if these steps were taken then there would be compliance with the regulatory regime as to noise.
53 During the course of the hearing, the applicant committed herself to these recommendations as part of conditional approval. It follows that, if approval were to be granted, the conditions upon which approval is given should reflect these matters.
54 The general question of noise from child care centres is revisited below in the discussion of the authorities.
The evidence of the experts: traffic
55 The applicant called Mr P Fourie from the ARRB Group. Mr Fourie told the Tribunal that in relation to traffic impact on Worthington Road:
"A traffic count conducted by the City of Melville in 2001 on Worthington Road close to the intersection with Riseley Street showed that approximately one thousand and forty-one (1041) vehicles used this section of road. The expected traffic during 2006 was estimated by applying an annual average growth rate of 3%, giving approximately one thousand two hundred (1200) vehicles. Based on the [Institute of Transport Engineers] trip generation rates, the child minding centre would have the effect of increasing the expected 2006 daily traffic on Worthington Road by only 13%. The City of Melville Transport Planner confirmed this, stating 'the possible increase in traffic volume using this part of Worthington Road is relatively minor compare [sic] to the number of vehicles shown in the traffic count'. Peak hour traffic would, however, increase by about 30%."
56 Mr Fourie's evidence in relation to the traffic increase on Riseley Street was as follows:
"A traffic count conducted by the City of Melville in 2005 on Riseley Street just north of Leach Highway showed that approximately ten thousand seven hundred and ninety seven
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- (10 797) vehicles used this section of road. Applying the 3% growth rate this would have increased to approximately eleven thousand one hundred (11 100) vehicles during 2006. Traffic generated by the child minding centre would result in an insignificant percentage increase (less than 1%) during a weekday and during both peak periods."
57 His evidence on the safety aspects of the intersection between Worthington Road and Riseley Street was to the effect that the additional traffic that would be generated by the proposed child care centre would have a marginal effect on total intersection delay. Mr Fourie thought that from an intersection capacity perspective "the traffic generated by the child minding centre would, therefore, have insignificant effect on accident potential". Mr Fourie was otherwise satisfied with the design elements of the intersection.
58 He thought that there was also adequate "stacking space", that is, the approximately 40 metre gap between Riseley Street and the crossover on Worthington Road. Mr Fourie was also satisfied with the proposed parking arrangements and noted that there were non-mountable kerbs on the roadway which would discourage parking on the adjacent verge. Other controls (such as no parking signs) could be introduced by the City if problems emerged.
59 On the question of whether this particular intersection has an established accident history, Mr Fourie gave evidence as follows:
"There were 5 recorded accidents at the intersection in the 5-year period to 31/12/2005, according to Main Roads WA's [MRWA] internet web site. … One of these was at night, and one in wet weather. One fatal accident occurred, involving a single southbound vehicle colliding with a tree.
The intersection, based on this crash history is ranked by MRWA as the 2,878th worst in the state in terms of frequency of accidents, and the 4,304th in terms of accident costs. Further investigations show it to be the equal 134th worst intersection in the City of Melville in terms of crash frequency, and indeed there are 10 intersections with worse crash histories along Riseley Street alone."
60 Mr Fourie calculated that the intersection had, in truth, a below average crash history.
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61 On the other hand, Mr R Ding, who is a director of TARSC Pty Ltd, and who was called by the respondent reached the opposite conclusion to Mr Fourie on all of the major issues. His summary of his own conclusions was as follows:
"• The parking is inadequate in terms of number of bays and design and there will be vehicle overflow onto Worthington Road to the detriment of local residents;
• Traffic flows on Riseley Street are close to [the] 30,000 vehicles per day limit imposed by council for child minding centres;
• The level of service on Worthington road at the intersection of Riseley Street is presently poor and will be worsened further due to the child minding centre traffic; and
• The safety of the section of Riseley Street near the intersection of Worthington Road is questionable and the location of a playground near Riseley Street may place children at risk."
62 Despite the best endeavours of the Tribunal, it was not possible for the two traffic experts to meet with one another prior to the hearing to attempt to resolve these differences and to produce a joint experts' report for the hearing which report would ordinarily elucidate in more detail the areas of agreement and disagreement between these experts.
63 The two experts did however give evidence concurrently and some consensus emerged. Mr Fourie was prepared to admit that the higher figures on vehicle movements per day proffered by Mr Ding were likely to be more accurate or up to date. Even so, the vehicle movements would still be less than those prescribed under the Policy. Further, his essential position remained unchanged notwithstanding those higher figures.
Assessment against relevant criteria in CPS 5: local policies
64 To a very substantial degree, the applicant's proposal meets both the general intent (and specific content) of the respondent's local policy on child care centres. Moreover, the proposal is broadly analogous to the type of activities ("such as home occupations, parks, religious, public recreational and educational activities, provided they are designed in a residential style") contemplated, in some cases, for the Riseley Street
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- precinct. Some of these activities would inevitably attract additional vehicle movements and some noise, and access might well be off side roads connected to Riseley Street.
Relevant planning law principles
65 The first issue that arises is the contention of the respondent and the objectors (if not the basic premise of their opposition to the applicant) to the effect that a commercial child care centre is somehow intrinsically antithetical to the residential nature of a precinct. The Tribunal does not accept that premise. The Victorian Tribunal in Jones v Boroondara CC [2006] VCAT 1833, answered such a contention as follows, at [22], emphasis added:
"The Tribunal has found in innumerable cases over a long period of time, that child care centres are an appropriate use in a residential area. There are many very good reasons which underpin the long established principle that child care centers [sic] are appropriately located in residential areas, not the least of which is that, notwithstanding the commercial basis of their operation, they provide a community service and it can be expected that the need for them is generated by at least some of the residents of the locality within which the center [sic] is located. The benefits of locating uses such as child care centres are recognized in the purpose of the [various planning instruments and policies]."
66 See also the Victorian decision of Lappin v Banyule CC [2007] VCAT 143 and the cases discussed therein, at [28]-[29].
67 There is nothing in the respondent's planning framework that is inconsistent with this position; indeed the local child care centre policy contemplates or assumes their possible location in residential areas. This Tribunal would respectfully adopt the reasoning of the Victorian Tribunal on this point. It follows that, with respect to Mr Fitzgerald, the suggestion that there is a "presumption against" such centres is perhaps an unhelpful way of characterising the issue to be determined.
68 The next issue is the general question of noise. The Victorian Tribunal in Victory Investment Group v Whitehorse CC [2005] VCAT 1863 extensively discussed the question of noise in relation to child care centres (both from the children themselves, and the noise arising out of the arrival and departure of motor vehicles), taking the opportunity along
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- the way to discuss the leading cases in that jurisdiction. The Tribunal observed, at [45]-[51], emphasis added:
"In relation to noise generated by children, the former Planning Appeals Board, made the following observations in Krampitz v City of Footscray (1978) 13 VPA 88:
'Children of preschool age who will be brought to the premises will spend much of their time sleeping and some of the time engaged in occupations within the house. It will be a sad day for this community when responsible authorities find that the laughter of little children or their exuberance in playing their games becomes a nuisance. We can see no reason to deny the permit on this ground.'
[The respondent] relied on the comments of the former AAT [Victorian Administrative Appeals Tribunal] in Norton Properties Pty Ltd v City of Whitehorse (1995/41282 16 AATR editorial comment at 245). The tribunal [sic] in that case was presented with a tape recording of noise at an existing child care centre which sought approval for an extension. … The tribunal [sic] went on to describe the use as one that is intense and comparable to a primary school.
In contrast to this view, there have been several more recent decisions that have not expressed the same concern about noise associated with young children. For example, in Matthews [Matthews v Glen Eira CC [2002] VCAT 1338.], the tribunal [sic] expressed the view that:
'Noise associated with child mind [sic] centres is a difficult issue. Child minding centres are properly located within residential areas. A child minding centre with a capacity of 73 child minding spaces is not unusual. Therefore, there will always be neighbours affected by the noise associated with a child minding centre of this type. Hence as for schools I think it is difficult to argue that the noise from a child minding centre is unacceptable in a residential environment.'
In Attard’s case [Attard v Moonee Valley CC [2003] VCAT 754], the tribunal [sic] agreed that the impact of noise could be
- mitigated through the use of acoustic fences and screens at appropriate locations and came to the conclusion that:
'I agree with [the witness'] conclusions and the findings of earlier decisions of the Tribunal that the noise of children playing is not generally considered offensive and that child care centres do not have an unreasonable noise impact on residential areas.'
I can appreciate that neighbours of properties adjacent to a proposed child care centre would be apprehensive about the "change" that a facility of this type would bring about. I would think that the possibility of continually hearing "noise" from children playing and crying would also be of concern to those seeking peace and quiet.
However, what should be considered is that the child care centre being proposed is relatively small, at the low end of the scale catering for up to 50 children. Twenty of the children would be babies or toddlers. I think that children in this age group would be mainly kept indoors, and at times when they are outdoors, would be kept under a great deal more supervision than children within a schoolyard. I would not expect that children in this age group would cause substantial noise."
69 The Tribunal concluded, at [56]-[57]:
"When consideration is given to the scale of the proposed centre, the nature of the noise, and the measures that the applicant is prepared to take with respect to double glazing and fencing, I am of the view that the noise impacts from the activities of children would not be unreasonable.
I also do not share concerns raised about noise associated with parents picking up and dropping off children. I have observed this activity at child care centres and kindergartens, including the existing facility … This activity is not noisy or detrimental."
70 These views are broadly consistent with those of Bignold J, a very experienced planning judge, expressed in Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140. There, His Honour said, at [18]-[20], emphasis added:
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- "Notwithstanding the fact that this [proposed child care centre] will be in the nature of what has been fairly described as a commercial intrusion into a quiet established residential area, I am nonetheless of the opinion that with the regime of conditions in place and being strictly enforced, that the development is ultimately an acceptable (albeit essentially foreign) change introduced into an existing residential environment.
I do not want my description of the proposal being a 'foreign element' to be overstated, since, of course, the development of child care centres more often than not occurs in residential areas, not only in the country areas but in Metropolitan Sydney as do schools and churches which are generally to be regarded as adjunct residential development. Rather, when I refer to 'foreign' I mean that it is of a type and a scale, which is different (and significantly different) from the prevailing and settled residential patterns in the area.
However, I am satisfied having regard to the evidence in its totality that the site is suitable for the proposed development, which subject to the regime of conditions that has been agreed upon between the parties and which I will impose should bring the development into a state of co-existence with the settled residential pattern which will not be as intrusive or as unacceptable as the local residents have apprehended it to be. That is not to give but scant regard to their objections and the force of them. They were very impressively put together both in their written objection from and in their evidence today. The matters they raised were of considerable weight and deserving of great attention and consideration which I have given them in my planning evaluation of the proposal. However, on balance, and particularly in the light of my acceptance of the opinions of [noise and traffic experts] Mr Hallam and Dr Tonin, I am of the view that the appeal should be allowed and development consent be granted subject to [certain agreed conditions of development consent]."
71 Bignold J has, with respect, made comments which are largely translatable to the circumstances of this review. This is particularly so as regards the impressive standard of the objectors' evidence and submissions and, with respect to these witnesses, the likelihood also that the proposal will not be as "intrusive or as unacceptable as the local residents have apprehended it to be".
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72 The Tribunal has also had regard to the various decisions on child care in this jurisdiction. Briefly, these cases are: Jones and Shire of Murray [2006] WASAT 140 (extension of opening hours granted in part); Litis & Anor and Shire of Kalamunda [2006] WASAT 130 (application refused "solely on the basis that it could not be conclusively demonstrated that access arrangements could be adequately managed. If traffic management issues [could] be overcome, the proposal, on all other planning grounds, could be supported"); Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346, affirmed: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (application refused because of the potential impact of the proposed development on the amenity of the future residential development of adjoining lots); Love and City of Joondalup [2006] WASAT 69 (application refused principally on the basis of a local policy which preferred child care centres "to be located adjacent to non-residential uses, such as shopping centres", and because of traffic concerns); Sharose Investments Pty Ltd & Anor and City of Joondalup [2006] WASAT 271(granted principally because of previous non-residential site use); and Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119 (application refused on locational and noise and traffic grounds).
73 In Love and City of Joondalup, Member Jordan, a very experienced Member of this Tribunal said, at [51]-[54]:
"[The local policy] adopted by the respondent is generally sound and consistently applied. The policy sets out locational criteria and development standards for child care centres with the clear objective that an adverse impact on residential amenity is to be avoided, or at the very least limited.
It is clear that [the policy], by itself cannot preclude the approval or refusal of the proposed development. The applicant says that the proposed development is an appropriate use having regard to the present amenity of the locality, the nature of the proposed development and the manner in which it addresses issues of amenity, safety and aesthetics, traffic impact and noise. While the proposed location is not that preferred in [the policy], the proposed use would not be in conflict with the objectives of the residential zone as it does not have an adverse effect. …
Examination of the proposed development reveals that the extent to which developmental and environmental items might
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- be addressed is not sufficient to fully overcome the amenity impact on this residential locality. The Tribunal has found that in the circumstances of this proposal this is not an instance in which to set aside the policy."
74 However, the proposal there under consideration was much larger in scale than the application under review here. It contemplated 56 children and 17 car parking bays (apparently with overflow parking), and involved the demolition of two existing houses and the amalgamation of the lots to form a new lot of 1433 square metres in a residential area. Moreover, the proposed development was to be located, contrary to the policy, directly on or near relevant district distributor roads (including the very busy Ocean Reef Road, and its nearby freeway exit) and the secondary access road there had triple the vehicle movements of Worthington Road.
75 On these various grounds alone that decision is distinguishable. See also Sharose Investments Pty Ltd and City of Joondalup [2006] WASAT 271 at [75]-[76] which distinguishes Love and City of Joondalup. Likewise, Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119 dealt with a much larger operation (80 children) on a large non-corner site in a low density residential area, opening at 6.30 am - again very different from the proposal that we are here considering.
Discussion of the case and findings
76 The concern about noise, which is common to child care centre cases, must largely fall away when regard is had to the following matters: first, the fact that such uses are contemplated in residential areas (see the discussion above); secondly, the particular recommendations of the noise experts here; thirdly, the related proposed acoustically ameliorating conditions (accepted by the applicant); and finally to the appropriate level of sensitivity in terms of residential amenity concerning child care centre noise that emerges from the approaches of the tribunals and courts referred to above.
77 As regards traffic issues, the Tribunal is faced with very conflicting views on the part of the experts. On balance, the Tribunal prefers the views of the applicant's expert. This is principally so because Mr Fourie's assumptions concerning drivers' behaviour appear to the Tribunal to be more measured and realistic. They broadly accord with the Tribunal's own experience and that of other Tribunals, as appears from the extracts above and below.
78 There is no doubt that the Riseley Street intersection will be impacted upon by the proposed development, particularly at peak hours. The intersection itself seems possibly under some degree of strain from time to time. However, the precise impact of additional movements is a matter of speculation and a difference of opinion (or impression) between the experts. For the reasons expressed above, the Tribunal prefers the lower estimates of impact proffered by Mr Fourie. Also, it cannot be ignored that traffic management and safety are matters that the respondent City itself has considerable control or influence over. In addition, this Tribunal, generally speaking, has been slow to refuse development
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approval on such grounds. Cf Dumbleton & Anor and Town of Bassendean [2005] WASAT 145, at [60]:
"… Although, given the level of service found by [the expert witness] in the peak periods, the intersection would no doubt benefit from expenditure which would improve performance and safety, the Tribunal is satisfied that the intersection has sufficient capacity to cater for the vehicles generated by the proposed development."
79 That broadly reflects the situation here. Accordingly, the respondent's and the objectors' well argued concerns on traffic and safety must nevertheless give way in such circumstances.
Conclusions
80 The respondent's and objectors' case has not been made out. Neither the planning framework, the planning principles emerging from the cases referred to above nor the evidence generally is sufficient to persuade the Tribunal that the correct and preferable decision is not to grant planning approval. In particular, the Tribunal rejects, with respect, Mr Allerding's submission that an approval would be "shoe-horning the … activity [on to] this site". And, this is so notwithstanding that some of the conditions remain to be settled.
81 The respondent, properly in the circumstances, eschewed any suggestion that any approval be made either personal to the applicant or for a limited period of time: cf Stein and Shire of Chapman Valley [2006] WASAT 105.
82 There will be an order permitting the proposed development to take place upon certain conditions which will have to come into the Tribunal, if the parties cannot sensibly agree upon those that are outstanding. An order similar to that made in Stein & Anor and Shire of Chapman Valley [2006] WASAT 105 will be made here. As the Tribunal similarly required in Burnett and Town of Cambridge [2006] WASAT 29, at [41]:
"The parties will be directed to negotiate in good faith as to the final conditions to be imposed. Those conditions are to be consistent with the indications of the Tribunal just given. If the parties cannot agree on the final form of the conditions by way of a minute of consent orders, then the Tribunal shall rule upon them. That course should not be necessary if the parties approach the matter constructively and in good faith. And, of course the Tribunal retains the flexibility, if circumstances warrant it, to make a costs award should unreasonable intransigence be shown by either party on this issue."
Orders
83 For the reasons given above, the Tribunal orders that:
1. The application for review is allowed.
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- 2. The decision under review is set aside and in substitution thereof there will be a decision granting planning approval on such conditions as are reasonable and appropriate to be approved by the Tribunal by minute of consent orders or otherwise.
3. The parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate final consolidated conditions, not inconsistent with the reasons for decision of the Tribunal (and including the conditions already agreed upon), to be filed by the respondent within 21 days of the date of this decision.
4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of par 3 of these orders.
I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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