Inglewood Church Of Christ and City Of Stirling
[2005] WASAT 305
•25 NOVEMBER 2005
INGLEWOOD CHURCH OF CHRIST and CITY OF STIRLING [2005] WASAT 305
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 305 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:62/2005 | 9 JUNE 2005 AND 29 SEPTEMBER 2005 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 25/11/05 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed. Development approval for alterations and additions and use of 907 Beaufort Street, Inglewood as a place of public worship refused. | ||
| B | |||
| PDF Version |
| Parties: | INGLEWOOD CHURCH OF CHRIST CITY OF STIRLING |
Catchwords: | Town planning Planning application Place of public worship "cafe style" church Town centre precinct Whether proposed use adequately described Whether place of public worship includes welfare services, such as soup kitchen or accommodation, or drug and alcohol rehabilitation Whether use contrary to orderly and proper planning as expressed through town centre design guidelines Whether active and lively street frontage Whether adequate car parking provided Subsisting planning consent for restaurant granted on basis of 40 car bay shortfall Whether compliance with scheme minimum parking provision unreasonable in the circumstances Calculation of car parking generation Part of building capable of accommodating seating Whether offices, preparation areas, verandah, platform and walkways should be included in calculation Noise Whether management plan warranted Words and phrases: "church", "place of public worship" |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 27, s 29(1) Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 Nil |
Orders | 1. The application for review is dismissed.,2. Development approval for alterations and additions at Lot 524 No 907 Beaufort Street, Inglewood and for the use of that property as a church and Lot 432 No 98 Tenth Avenue, Inglewood as ancillary parking is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : INGLEWOOD CHURCH OF CHRIST and CITY OF STIRLING [2005] WASAT 305 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 9 JUNE 2005 AND 29 SEPTEMBER 2005 DELIVERED : 25 NOVEMBER 2005 FILE NO/S : DR 62 of 2005 BETWEEN : INGLEWOOD CHURCH OF CHRIST
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Planning application Place of public worship "cafe style" church Town centre precinct Whether proposed use adequately described Whether place of public worship includes welfare services, such as soup kitchen or accommodation, or drug and alcohol rehabilitation Whether use contrary to orderly and proper planning as expressed through town centre design guidelines Whether active and lively street frontage Whether adequate car parking provided Subsisting planning consent for restaurant granted on basis of 40 car bay shortfall Whether compliance with scheme minimum parking provision unreasonable in the circumstances Calculation of car parking generation Part of building capable of accommodating seating Whether offices, preparation
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areas, verandah, platform and walkways should be included in calculation Noise Whether management plan warranted Words and phrases: "church", "place of public worship"
Legislation:
State Administrative Tribunal Act 2004 (WA), s 27, s 29(1)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
Application for review dismissed.
Development approval for alterations and additions and use of 907 Beaufort Street, Inglewood as a place of public worship refused.
Category: B
Representation:
Counsel:
Applicant : Mr C Craggs (Agent)
Respondent : Mr PB Kotsoglo (Agent)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The proceedings concerned a development application for a "café style" church in a town centre precinct. The principal issues were:
(i) whether the proposed use was fully and completely described;
(ii) whether the development was contrary to orderly and proper planning of the locality as expressed through design guidelines adopted by the City;
(iii) whether adequate car parking was provided; and
(iv) whether the noise impacts were acceptable.
2 The Tribunal considered that the application was fully described and did not include welfare-type services, such as a soup kitchen or accommodation for the homeless, or drug and alcohol rehabilitation services, which might have an adverse impact on residential amenity.
3 The Tribunal found that the proposal was contrary to orderly and proper planning as expressed through the adopted design guidelines in that church use at the street frontage did not involve a sufficient degree of activity and vibrancy.
4 The development was likely to generate a peak demand on Sunday mornings for up to 52 car parking spaces while only 27 on site spaces were proposed. However, the Tribunal considered that it would be unreasonable in the circumstances of the case to require 25 more car spaces to be provided on site, because a restaurant which formerly operated at the site had been approved by the City on the basis of a 40 car space concession, the restaurant approval remained operative, and the proposed development would generate considerably less demand for public car parking spaces than a restaurant. There were a number of public car parking areas nearby in the precinct, and while some premises in the vicinity traded on Sundays, others did not. In the circumstances of this case, the proposed car parking provision was adequate.
5 Finally, the Tribunal was satisfied that the development would not cause an unreasonable acoustic impact.
6 The Tribunal concluded that the proposed development warranted refusal, because the use of the immediate street frontage of the site as a church lacked the necessary degree of activity and vibrancy called for by
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- the guidelines. However, the development was otherwise acceptable. Moreover, had the development incorporated a café or shop in the street frontage area, with church use behind and above, the application would have been approved subject to conditions.
Introduction
7 These proceedings involve an application for review by Inglewood Church of Christ pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (Act) of the decision of the City of Stirling to refuse a development application made by the Church. The development application proposes alterations and additions to an existing two storey commercial building at Lot 524 (No 907) Beaufort Street, Inglewood (Beaufort Street site), the use of the Beaufort Street site as a church and to accommodate four car parking spaces, and the use of Lot 432 (No 98) Tenth Avenue, Inglewood (Tenth Avenue site) as a car park for those attending the church.
8 For over 75 years Inglewood Church of Christ was located in a residential street approximately 500 metres south-west of the proposed development. Lack of sufficient car parking in that location has significantly limited the ability of the Church to grow. It recently relocated to a community centre approximately 50 metres to the south-west of the site and attendance at Sunday services has grown from about 35 members to about 55 members.
9 The proposed development is a relatively novel type of church. It was described by Mr Colin Craggs, the Church's pastor and representative, as "a café style ministry". It is a reflection of and response to contemporary Australian society. By adopting the form of a café style ministry, the Church seeks, in the words of Mr Michael Bullard, a minister and Churches of Christ WA's team leader concerned with strategic planning and development, to "interface with the community" in a relaxed, café style environment.
10 Councillor Terence Tyzack, the City's mayor, gave evidence that the development application has "probably been one of the most contentious issues that I dealt with in my 20 years as an Inglewood Ward Councillor". The application was advertised and attracted 238 letters of objection, comprising 210 form letters which raised issues of car parking and traffic congestion, 18 individual letters which principally raised issues of car parking, the scope of the activities proposed, and perceived lack of vibrancy, and 10 letters in support of a planning assessment
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- commissioned by a number of residents. There were also three letters of support for the application.
11 The City's Town Planning and Statutory Services Committee considered the development application at its meeting on 9 November 2004 and received a report from the City's professional staff recommending refusal on the basis of inadequate car parking provision. The Committee accepted the recommendation and refused the application for the following reason:
"The proposal has inadequate parking to comply with the requirements specified in District Planning Scheme No. 2."
The site and locality
12 The Beaufort Street site is located on the north-western side of Beaufort Street in the Inglewood Town Centre. It is a regularly shaped rectangular block with frontages of 13.75 metres to Beaufort Street and to a rear lane, a depth of 39.09 metres, and an area of 539 square metres. Erected on the Beaufort Street half of the site is a two story commercial building with a gabled roof. The building has a zero setback to the street and to one side boundary, and has a setback of approximately 1.2 metres to the other side boundary. An awning structure and signage project into the public domain. A single storey section extends into part of the rear half of the site and large boundary walls, ranging in height up to about 4.0 metres immediately adjoining the laneway, are erected around the open, rear portion of the site. The building is fitted out and was previously used as a restaurant.
13 Located in the same street block as the Beaufort Street site, bounded by Beaufort Street, Tenth Avenue (to the south-west), the rear laneway and Dundas Road (to the north-east) are a number of commercial buildings of varying architectural styles containing, to the south-west of the site, a garden centre/café and a beauty and massage clinic and, to the north-east of the site, a bottle shop, an electrical shop and a rug shop. Further to the north-east, across Dundas Road, is the former Civic Theatre site with its "iconic" clock tower on which a mixed use development, retaining the clock tower and including retail uses at ground level and residential units above, is currently being erected. On the street block to the south-west of the site, across Tenth Avenue, is a large civic complex known as the Bob Daniels Community Centre.
14 Directly across the road from the Beaufort Street site is a large, nondescript building containing a Dewsons supermarket which operates
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- seven days a week and a large car park for its customers. Diagonally across from the site, to the south of the Dewsons premises, is a chemist and a bakery which also operate seven days a week.
15 The Inglewood Town Centre comprises a strip of properties on both sides of Beaufort Street between Sixth Avenue and Waterford Street. As is apparent from the foregoing description of the land uses in the immediate locality of the site, the Inglewood Town Centre comprises a variety of civic, commercial, professional and retail uses. In recent years, the City has spent a great deal of time, effort and resources on civic improvements in the Town Centre, including paving, street furniture and landscaping. These improvements have had a significant and beneficial effect on the streetscape, character and visual amenity of the strip.
16 There are a number of at grade car parking areas behind the strip of commercial buildings fronting both sides of Beaufort Street. These appear to be generally public car parks and include a dedicated council car park diagonally to the rear of the Beaufort Street site across the laneway. The Tenth Avenue site, which the Church proposes to use as a car park for the development, adjoins the council car park to the rear. The Beaufort Street site and the Tenth Avenue site are separated from one another by the laneway and by a single residential property on an "island" site surrounded by roads and car parking areas. This single residential property, the council car park and the Tenth Avenue site are each zoned "Civic" under City of Stirling District Planning Scheme No 2 (DPS 2). Mr Kotsoglo, a town planner who represented and gave evidence on behalf of the City, indicated that the City's strategic intention is ultimately to incorporate the single residential site and the Tenth Avenue site into an enlarged public car park. The Tenth Avenue site has an area of 688 square metres and can accommodate 23 vehicles. When the restaurant operated from the Beaufort Street site, the Tenth Avenue site constituted its only car parking area.
The proposed development
17 The development application comprises the application form, a three page document entitled "Use of 907 Beaufort St, Inglewood" and a set of plans which were amended with leave during the course of the proceedings. The physical works proposed comprise internal alterations to the building, the demolition of the single storey portion and the boundary walls around the rear half, and erection of a single storey auditorium with a gabled roof on a substantial proportion of the rear half of the site. The Beaufort Street façade is proposed to be substantially
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- retained, although the two existing ground floor windows are proposed to be replaced and the glazed proportion of the frontage increased. The existing entry doors are proposed to be replaced with double glazed doors set further into the building so as to create a small covered area. The appearance of the awning and first floor of the building would not change.
18 The proposed layout of the existing part of the building at ground level would comprise a foyer area behind the double glazed entry doors, a "Lounge Area" behind the shop front windows (with an indicative furniture layout on the plans showing lounges and round tables surrounded with chairs), a (food) preparation area, "Viewing Room" (nominated on the plans "for parents with children to view church service" in the rear extension area), store room, toilets and lift. The proposed rear auditorium addition would comprise "Meeting Area 1" and contain a front platform, two store rooms accessed from the platform, morning tea tables and a sound desk at the rear, walkways and a central "seating area" of approximately 91 square metres. The auditorium addition would not have any external openings other than double entry doors leading to the rear part of the site and the laneway. Four car bays are proposed at the rear of the site to be accessed from the laneway. The second level would comprise "Meeting Area 2" with an area of approximately 70 square metres, four offices, the existing verandah at the rear and toilets.
19 The development application form describes the proposed development as "church". The use is described more fully in the accompanying document as follows:
"1. Church Services on weekends
2. Community services [by which Mr Craggs explained during the proceedings was meant groups and education] during the week
3. Office use during the week"
20 The detailed description of the proposed use in the development application states that Meeting Area 1 would be used for two services on Sunday mornings, a traditional church service and a more contemporary service. Mr Craggs explained in evidence that the Church's aim is to attract approximately 70 congregants to each of the services, although Meeting Area 1 could accommodate approximately 140 people in the designated "seating area" in non-fixed chairs. He proposed a limitation by way of condition of approval of a maximum of 150 people attending the premises at any one time. During services in Meeting Area 1, the
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- Viewing Room would be used by parents with children to view the service without their children causing a disturbance. Meeting Area 2 would be used to accommodate older children during services. In addition, on Sundays, "the [Lounge Area] would be used for people to sit and connect with each other before and after each service. Light refreshments and beverages would be served during this time (as is our current practise [sic])".
21 The development application states that "during the week we run several community services [which was explained during the hearing to refer to groups and education] that we would hope to continue and add to". The Church has a number of groups which meet "during several nights of the week" including prayer, bible study, parenting, mother and kids, friendship, youth, crafts, sewing and weight loss groups. As the Church would grow on the proposed site, it "would envisage a greater diversity of groups to accommodate the growing needs of the community and the greater resources to meet those needs". The development application states that the groups would generally meet in the Lounge Area, Office 1 and Meeting Area 2. Meeting Area 1 would be used to hold large youth activities.
22 The development application explains that Offices 3 and 4 would be used as church offices, Office 2 would be used as storage for Meeting Area 2 and Office 1 would be set up as a lounge room to be used for small groups not requiring the larger Meeting Area 2.
23 The intention is to "maintain the [café] atmosphere of the premises". In particular, the application states as follows:
"The [Lounge Area] will be our primary area during business hours. The café environment would provide a friendly drop in atmosphere allowing people to easily enter and join the community groups. It is not our intention at this time to run the [Lounge Area] as a café. However, we are open to any service that will assist the community, therefore, we would entertain the idea if we were in a position to do so. Other churches have successfully run café (eg. South Perth Church of Christ, Riverview Family Church). Our resources, however, prevent us from embarking on a café."
Statutory planning context
24 The Beaufort Street site is zoned "Urban" under the Metropolitan Region Scheme and "Town Centre" under DPS 2. The Zoning Table of
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- DPS 2 designates the use class "place of public worship" in the "Town Centre" zone with the symbol "AA" which "means that the use is not permitted unless approval is granted by the Council": DPS 2 cl 1.3.2.2. The term "place of public worship" is defined in cl 1.1.11.2 of the Scheme to mean "a building used primarily for the religious activities of a church but does not include an institution for primary, secondary, or higher education, or a residential training institution". The term "church", while historically associated with Christian worship, also applies in Australia to a place of public worship of a non-Christian religion: House of Peace Pty Ltd & Anor v Bankstown City Council(2000) 48 NSWLR 498; 106 LGERA 440; Macquarie Dictionary (4 ed), The Macquarie Library Pty Ltd, Sydney, 2005, page 268, definition 9.
25 Clause 1.3.5.2 requires that an application in relation to a "AA" use must include, among other things, "a full and complete description of the purpose for which the applicant desires to use the land" (par (e)). This clause also requires that, in determining the application, the council (and the Tribunal on review) "shall have regard to the appropriateness of the proposed use and its effect on the locality and in particular, traffic congestion and hazard, noise, amenity, nuisance and any other factor relevant to the application".
26 Clause 1.3.5.3 requires public notification of an "AA" use if the council resolves that the development "may be considered appropriate in the circumstances of the application". In this case, the council so resolved, and advertised the application. As noted earlier, the advertising resulted in a large number of objections. The clause also requires the council (and the Tribunal on review) to "consider the application and any comments received and make its decision". Clause 1.3.5.4 provides as follows:
"The Council, having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenity of the locality, may refuse to grant its approval to an application to use or develop land."
27 Clause 3.2.6 applies specifically to the "Town Centre" zone. It states that the zone "is intended to provide a focal point for retail, office, entertainment, recreational and community type activities for the local area". Sub-clauses 1 and 2 are as follows:
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- "3.2.6.1 It is the intention of the Council to ensure that any development within a Town Centre Zone is in accordance with and reflects in its design, setbacks and finishes:
(a) a positive contribution to and strengthening of the recognisable features of that town centre as a 'main street/strip shopping' precinct;
(b) a high quality of pedestrian amenity, consistent with 'main street/strip shopping' principles, through the provision of (but not limited to) continuous pathways, shade, landscaping, lighting, wall and window facades and paving;
(c) the character of existing commercial buildings in the town centre; and
(d) the local streetscape.
3.2.6.2 All development within that Town Centre Zone shall comply with the following:
(a) The provisions of the Scheme, including but not limited to the provisions of Clause 3.2.6.1 of the Scheme; and
(b) Any relevant Policies or Design Guidelines adopted by the Council."
29 Following public advertising and community consultation, the City adopted the Inglewood Town Centre Private Development Design Guidelines (Design Guidelines) under clause 3.2.6.3. It is apparent from the City's evidence and from a number of the individual letters of
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- objection that there was considerable community involvement in the formulation of the Design Guidelines and that there is a great deal of community interest in ensuring that their intention is fulfilled.
30 The Design Guidelines state that their "intent" is "to ensure that private development is complementary to improvements undertaken by the Council on public land so that the overall objectives of the Inglewood Town Centre Improvement Project are achieved". It states that "the City of Stirling's vision for Inglewood Town Centre focuses on the need to retain [a] 'family' character, whilst at the same time encouraging appropriate compatible, contemporary-style new development, and improving the amenity of the Centre's public spaces". The Design Guidelines contain express "objectives" and "guiding philosophy". The "objectives" section is the following terms:
"The objectives of these Guidelines are to ensure that any new development or redevelopment of existing buildings provides:
• A positive contribution to, and strengthening of the recognisable features of the Inglewood Town Centre as a 'main street/strip shopping' precinct
• Appropriate uses for a Town Centre, encouraging a diverse mix of daytime and night time activities;
• Conservation of and compatibility with, the heritage character of existing commercial buildings in the Town Centre; and
• A high quality of pedestrian amenity, consistent with traditional 'main street/strip shopping' development."
31 The "guiding philosophy" section states, in part, as follows:
"All new development and improvement of existing buildings should reinforce the character and positive attributes of the Inglewood Town Centre. In particular:
• Existing places that contribute to the general character of the Town Centre should be conserved and enhanced;
• New development and redevelopment should maintain the themes of the existing buildings that are recognised as giving the Inglewood Town Centre its Inter-War character;
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- • Each new development or redevelopment should be viewed as an opportunity to strengthen the identity and character of the Town Centre; …[and]
• New uses should add to the character, vibrancy, choice and security of the Town Centre."
32 Under the heading "Land Use", the Design Guidelines state that service stations, show rooms and free standing and drive through take-away food outlets are strongly discouraged as a predominant use of a single site, mixed use developments are encouraged, and "for information about specific land uses and their permissibility" the reader should refer to "Land Use" under the Development Controls section of the document. That section simply extracts the permissibility classification of use classes from the Zoning Table of DPS 2. It specifically identifies "public worship" as an "AA" use.
33 The Design Guidelines also contain the following significant text:
"Nature of Street Frontage Uses
Active and lively street frontage uses that encourage pedestrian flows are encouraged in the Town Centre. Retail shop frontages are considered the most appropriate uses to be located at ground level. Office uses, doctors' surgeries, banks, etc, are regarded as passive frontages that do not generally attract strong pedestrian flows. Mixed use developments should ensure that active retail–type uses occupy the majority of street front exposure. Passive, non-retail uses should have narrower street frontages, be located at the rear of premises, or be located above ground level.
Restaurant or café frontages that have a capacity to open onto the street are also encouraged in the Town Centre to stimulate visual interest and increase interaction with the street."
The issues
34 Section 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that a review of a reviewable decision is by way of a hearing de novo (or anew), and is not confined to matters that were before the decision-maker. Section 27(2) states that "[t]he purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review". Section 27(3) makes explicit that "[t]he reasons for
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- decision provided by the decision-maker … do not limit the Tribunal in conducting a proceeding for the review of a decision". In this case, the City significantly expanded the issues, as it was entitled to do, beyond the single reason for refusal, namely the adequacy of car parking.
35 The principal issues raised by the City and addressed by the parties in the proceedings were as follows:
(1) Whether the application provides a full and complete description of the proposed use as required by DPS 2 cl 1.3.5.2(e).
(2) Whether the proposed development is contrary to orderly and proper planning of the locality as expressed through the Design Guidelines.
(3) Whether the proposed development provides adequate car parking.
(4) Whether the noise impacts are acceptable.
36 The Tribunal will address each issue in turn.
Does the application include a full and complete description of the proposed use?
37 It is the council's case that there is uncertainty about the scope of the proposed development which requires refusal under cl 1.3.5.2 of DPS 2. Mr Kotsoglo gave evidence that, in his opinion, it is "not clear if the proposed use is in fact a 'Place of Public Worship' or a 'Drop-in-Centre', or if it shall provide drug rehabilitation counselling, and exactly what types of services shall be provided". Ms (Gladys) Lee Collis, a nearby resident, expressed concern that the premises might be used for the provision of welfare services, such as free meals or accommodation for the homeless, or drug and alcohol rehabilitation services. A number of individual objections raised similar concerns.
38 The Tribunal has no doubt that the development application includes "[a] full and complete description of the purpose for which the applicant desires to use the land" in compliance with cl 1.3.5.2(e) of DPS 2. Moreover, it is clear from the development application that the Church does not propose to provide welfare or other services of the nature which concern some members of the community.
39 As noted earlier, the development application describes the proposed use as "church". The use of land as a "church" would comprise public
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- worship in the tradition of a recognised religion and incidental uses, such as pastoral care, social and educational activities for congregants, and, to an extent, community education and other activities facilitated by the Church. Use of land as a "church" does not include the provision of welfare services such as free meals to non-congregants or accommodation, or drug and alcohol rehabilitation services.
40 Mr Kotsoglo argued that the definition of "place of public worship" in DPS 2, namely, "a building used primarily for the religious activities of a church", would permit a wider scope of activities, such as welfare services. The Tribunal rejects this submission. There does not appear to be any real difference between the words "used primarily for the religious activities of a church" and land used as a "church". The contemplation in both expressions is that there are certain non-religious activities which are incidental or ancillary to the use of land as a "church". However, as Cr Tyzack, who has significant experience in local government and as a practising architect, properly recognised, welfare-type services fall outside the genus of "place of public worship" and "church". The mayor accepted that a welfare-type use would be subject to separate assessment. Depending on the terms of the planning instrument, it may or may not be permissible, and if permissible, would require a separate development application to be lodged, assessed and approved. However, Cr Tyzack maintained a concern, based on experience, that approval of a "church" might lead to a gradual change in the nature of the land use over time.
41 The Tribunal does not consider that the application should be refused on the basis that the proposed use is not fully described or that it includes welfare-type services which might have an adverse impact on residential amenity. Much of the community concern in this regard appears to be based on a misunderstanding of what is in fact proposed. However, in light of Cr Tyzack's concern about gradual change and for the avoidance of doubt, if approval of the application were otherwise appropriate, the Tribunal would impose a condition as follows:
"Welfare services, such as free food for non-congregants and accommodation, and drug and alcohol rehabilitation services, shall not be provided at or from the premises without obtaining further planning approval. For the avoidance of doubt, this condition does not preclude free refreshments being provided to congregants attending services before or after services or free meals being provided on an irregular basis to congregants who attend services at the premises on occasions such as religious holidays and church board or general meetings."
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Is the development contrary to orderly and proper planning?
42 Mr Kotsoglo gave evidence that the proposed development is inconsistent with the planning intent reflected in the Design Guidelines. He noted that the City has worked to develop the Town Centre "as primarily a retail and restaurant focal point in Beaufort Street, within which a range of mixed use activities shall occur". He considered that the "use is not appropriate in the location proposed, as it does not enhance the vitality of the locality, nor does it contribute to its enhancement by way of strengthening the Town Centre either economically or commercially". Councillor Tyzack, who was extensively involved in the development of the Design Guidelines, described the major objective sought to be achieved by the Guidelines as "revitalisation" which is "already staring to occur, with considerable investment in the area". He also considered that the proposed development would not be appropriate under the Guidelines because it lacked vibrancy. Similarly, Ms Collis considered that "the proposed church would create a 'flat spot' in the strip".
43 The Church did not present any expert evidence in support of the application. In particular, it did not call any town planning evidence to rebut the evidence of Mr Kotsoglo and Cr Tyzack (who, although an architect and builder by profession, is also an honorary life member of the Planning Institute of Australia). However, in the report to the City's Town Planning and Statutory Services Committee, the City's assessing officer did briefly consider the compatibility of the proposed development with the Design Guidelines. The assessing officer expressed the following opinion:
"In view of the various uses proposed and the applicant's commitment to retain and renovate the existing building, it is considered that the proposed church would not be out of keeping in a town centre locality. Furthermore, the applicant's proposal to retain the existing 'café' façade and still allow people to drop in for a cuppa will retain the active frontage to the street, consistent with 'main street/strip shopping' precincts."
44 Although the assessing officer referred to the objectives of the Design Guidelines, he or she did not at least expressly identify or consider the text under the heading "Nature of Street Frontage Uses" set out at [33] above. The officer's opinion was also not able to be tested as he or she was not called as a witness.
45 The Church's case is that a "café style" church is consistent with the Design Guidelines in that it would provide "a civic heart and a sense of
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- belonging for many people" and "add a sense of community [and] also bring people into the commercial centre".
46 The Tribunal considers that the proposed development is a "community type activity" which cl 3.2.6 of DPS 2 states is intended to be accommodated within the zone. Furthermore, the proposal satisfies the intention of the City expressed in cl 3.2.6.1 that development in the zone "is in accordance with and reflects in its design, setbacks and finishes" each of the matters identified in that clause.
47 However, contrary to cl 3.2.6.2 of DPS 2, the proposed development does not comply with the Design Guidelines in relation to the proposed activity directly at the street frontage of the Beaufort Street site. The clear planning intention reflected in the Design Guidelines is that there should be activity, vibrancy and attraction of pedestrian flow at street frontage. The Guidelines specifically identify retail shops, restaurants and cafes as uses which reflect the planning intention. Other uses might also be appropriate at the street frontage, if they involve a similar level of activity and pedestrian flow.
48 Although the proposed development would certainly be active in the Lounge Area on Sunday mornings and periodically, during specific activities, on week days, the likely level of activity in that part of the site is not of the nature contemplated by the Guidelines.
49 During the proceedings, Mr Craggs referred to a "café style" church conducted by the Uniting Church in Australia in Subiaco known as the Warehouse Café. A photograph of those premises was tendered which shows a lively and active street frontage with people enjoying refreshments or meals on the footpath at café tables under market umbrellas and a busy internal area with patrons sitting at tables. Mr Bullard gave the following evidence:
"Some churches are moving towards interfacing the church activities with a business venture, which may be lunchtime activities. The Warehouse Café in Subiaco would be one example in Perth, where they have integrated the idea of a café with the idea of a church. And there's a mixture of those two things…
The front area is set out as a café, with a kitchen, does meals, all that sort of thing. And a - - a street area as well. And there is a clear glass, well, there's glass or perspex, partition. And behind
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- that there is the meeting area where they have audiovisual equipment, that sort of thing."
50 In significant contrast, in this case, while the proposed layout behind the shop front is "café style" and would no doubt provide a friendly atmosphere for those attending the premises, the development application makes plain that the intention is not to run a café.
51 The Tribunal considers that the application warrants refusal, because the proposed use in the front part of the site at ground level is inconsistent with the planning intention reflected in the Design Guidelines. In this respect, the proposal is contrary to orderly and proper planning of the locality. However, other than at the street frontage, the proposed church is consistent with the objectives, guiding philosophy and terms of the Development Guidelines. In this regard, the Town Centre, both as it presently exists and as it is envisaged under the Design Guidelines, does not exclude civic or community uses, provided that they are located away from the street frontage. As noted earlier, a church is a "community type activity" contemplated by cl 3.2.6 of DPS 2. Moreover, the form of the proposed development would retain the character of existing commercial buildings in the Town Centre and contribute to the diversity of uses. It would "add to the character, vibrancy, choice and security of the Town Centre" as required by the "guiding philosophy" of the Guidelines, provided that the site had a more active interface with the street and pedestrian environment.
Is adequate car parking proposed?
52 Three specific issues emerged for consideration in relation to the adequacy of the proposed car parking provision, namely:
(1) How should minimum car parking provision for the proposed development be calculated under DPS 2;
(2) Whether it is unreasonable to require full compliance with the minimum car parking provision required by the Scheme in the circumstances of the case; and
(3) In so far as the proposed development necessitates use of public car parking, whether the likely peak demand for public spaces on Sundays is acceptable in light of existing demand for public spaces at that time.
(Page 18)
53 Clause 3.3.6 of DPS 2 requires that "[p]rovision shall be made for the off-street parking of motor vehicles without charge in all development in a Commercial Zone [including the 'Town Centre' zone: cl 3.2.1]…in accordance with the provisions of Table 3 …". Table 3 is entitled "Commercial Developments" and prescribes minimum parking provision rates for 13 types of land use. These include "office", in relation to which the minimum parking provision is one bay per 30 square metres of gross floor area, and "restaurant, fast foods, reception centre", in relation to which the minimum parking provision is one bay per 7 square metres of gross floor area. Table 3 does not contain minimum parking provision for a place of public worship. However, Table 2 of the Scheme which is entitled "Uses Which May Be Permitted In A Residential Zone" prescribes minimum parking provision for this use. The minimum parking provision is one bay per 3 square metres in relation to fixed seats and one bay per 5 square metres in relation to non-fixed seats "calculated over that portion of the building capable of accommodating seating".
54 It is arguable that cl 3.3.6 does not, on its proper interpretation, require that minimum car parking provision for the proposed development be determined in accordance with Table 3, as it is implicit in the clause that Table 3 only applies to the land uses identified in it. This interpretation is also suggested by cl 1.4.1 which precludes development or use for a purpose unless it is in accordance with "standards set out against such purpose in Tables 2, 3 or 4 as the case may be, of the Scheme". Arguably, the car parking standard which cl 1.4.1 requires compliance with in this case is that prescribed for a place of public worship in Table 2
55 The City contends that the proposed development would give rise to a need for 88 off-street car parking spaces under the Scheme as set out in Table A.
(Page 19)
Table A: City's Parking Assessment
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56 The City's calculation of car parking requirement is based on a piecemeal approach; each area within the proposed church is subject to a separate parking calculation based variously on the prescribed rates for "restaurants, fast foods, reception centre" in Table 3 (Lounge Area, Foyer, Viewing Room and Preparation Area), "office" in Table 3 (office and verandah) and "place of public worship" in Table 2 (Meeting Areas 1 and 2). This approach is flawed in two related respects. First, it ignores the fact that the proposed development involves a single land use, namely a place of public worship, rather than a series of separate land uses.
(Page 20)
- Second, the rates for "restaurant, fast foods, reception centre" and "office" are irrelevant to the proposed development. Although light refreshments and beverages are proposed to be served to congregants before and after services and although offices are proposed, the food and office use would be plainly incidental or ancillary to the use of the site as a church.
57 A further error in the City's methodology is that the parking requirement for Meeting Areas 1 and 2 was calculated on the basis of "gross floor area" which is defined in cl 1.1.11.2 as "in relation to a building used for office, commercial, industrial or recreational purposes, the total floor area within the building measured over the enclosing walls (including the portion of any common or party wall forming part of the building) exclusive of parking facilities sited within the building". However, the meeting areas are not proposed to be used for office, commercial, industrial or recreational purposes. Furthermore, as Table 2 states, parking provision in relation to a place of public worship is calculated over that portion of the building "capable of accommodating seating", not the "gross floor area".
58 As noted earlier, it is arguable that the Scheme does not require provision to be made for car parking in accordance with Table 3 in this case, but rather in accordance with Table 2. However, it is unnecessary to come to a decided view on this question. Clause 1.4.3.1 of DPS 2 provides that "[i]f it is established to the satisfaction of the Council that a particular development requirement or standard specified in the Scheme is unreasonable or undesirable in the particular circumstances of the case, the Council may at its discretion modify the requirement or standard subject to such conditions as it thinks fit". Under s 29(1) of the SAT Act, the Tribunal has "functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision". The Tribunal, therefore, has power to vary a development requirement or standard specified in the Scheme where it is satisfied that it is unreasonable or undesirable in the particular circumstances of the case.
59 Assuming that Table 3 were somehow applicable, the Tribunal considers that application of the standards in that table would be unreasonable in the particular circumstances of this case, because of the specific provision for the proposed land use in Table 2. In consequence, the Tribunal may, at its discretion, modify the requirement of the standards subject to such conditions as it sees fit under cl 1.4.3.1. The Tribunal considers that, as Table 2 makes specific provision for car parking generated by a place of public worship, the traffic generation rate prescribed in that table should be applied to the proposed development.
(Page 21)
60 Table 2 clearly contemplates that specific parking provision is not required in relation to areas within a place of public worship which are not reasonably capable of accommodating seating (for worship). This includes incidental areas that one would ordinarily expect to find in a place of public worship, such as a foyer, food preparation area, amenities, storage areas, areas for the clergy, walkways and offices.
61 The four areas of the building "capable of accommodating seating" are the Lounge Area (which has an area available for seating of approximately 62 square metres), Meeting Area 1 (which has a designated "seating area" of approximately 91 square metres), Meeting Area 2 (which has an available area of approximately 70 square metres) and the Viewing Room (which has an available area of 36 square metres).
62 Applying Table 2 of the Scheme to the plans of the proposed development, the minimum parking provision required by the Scheme is expressed in the following table.
Table B: Tribunal's Parking Assessment
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63 A report to the City's Town Planning and Statutory Services Committee meeting dated 12 April 2005 stated as follows:
"The original restaurant use had a gross floor area (both ground and upper floors) of approximately 443 [square metres], which required a total of 63 bays based on Scheme requirements of 1 bay per 7 [square metres] GFA. Council approved the restaurant with the provision of only 23 bays on Lot 432,
(Page 22)
- HN 98 Tenth Avenue thereby giving a parking concession of 40 bays."
64 Mr Kotsoglo submitted that the Tribunal should ignore the fact that there is a subsisting development consent in relation to the site which permits its use as a restaurant and which was approved by the City on the basis of a concession of 40 car parking spaces. This submission is inconsistent with the officer's report to the Town Planning and Statutory Services Committee which contemplated that an approved concession is a relevant factor for consideration. The Tribunal rejects the submission.
65 The Tribunal considers that it would be unreasonable in the particular circumstances of this case to strictly apply the minimum on site car parking standard of DPS 2, because the restaurant consent remains operative, the development requires only 62.5% of the level of concession as compared with restaurant use of the site, and the demand for public car parking generated by church use at the site is likely to be less extensive over the course of a week than the demand generated by restaurant use. In this latter respect, the evidence suggests that the peak demand generated by the proposal would be restricted to Sunday mornings, whereas the likely peak demand of the restaurant would be during opening times over a number of days of the week.
66 A concern was raised in some letters of objection that the likely peak car parking demand generated by the proposal on Sundays would conflict with demand generated by other premises in the Inglewood Town Centre which also trade at that time. In particular, Ms Collis gave evidence that "Sunday is already the busiest day in terms of traffic and parking at Dewsons and the garden centre and café". The owner of Dewsons Inglewood raised a similar concern.
67 It is apparent from the earlier analysis that, at its peak, the proposed use would generate a demand for up to 25 public car parking spaces in addition to the 27 spaces provided on site. As noted earlier, there are a number of public car parking areas in the immediate vicinity. Although Dewsons, the chemist, the bakery and the garden centre/café also operate on Sunday mornings, Dewsons and the garden centre/café have on site parking and there are a number of retail and commercial uses in the Town Centre which do not appear on the evidence to trade on Sundays. There are sufficient public car parking spaces in the immediate locality (indeed, just across the laneway to the rear of the site) to cater for the relatively short peak demand generated by the proposed church on Sunday mornings.
(Page 23)
68 In consequence, the Tribunal is satisfied that the proposed car parking provision is adequate in the circumstances of this case.
69 As noted earlier, the minimum parking provision rate of one bay per 5 square metres under Table 2 of DPS 2 only applies in the case of non-fixed seats. As also noted, the designated "seating area" on the proposed plans for Meeting Area 1 (91 square metres) excludes the platform, store rooms, morning tea tables, sound desk and designated walkways around the seating area. If the development were otherwise acceptable, the Tribunal would impose the following conditions in order to ensure that the assumptions which underline Table B are correct:
"The Lounge Area, Viewing Room, Meeting Area 1 and Meeting Area 2 shall not contain any seats which are fixed in place.
Seats (other than for the person or persons conducting a service) in Meeting Area 1 shall be located only in the area designated as 'SEATING AREA' on the approved ground floor plan. Seats for the person or persons conducting a service may be located on the platform. Congregants participating in a service in Meeting Area 1 shall only sit or stand in the 'SEATING AREA' on the approved plan. This condition and a copy of the approved ground floor plan shall be prominently displayed at each entry to Meeting Area 1."
70 Finally, Mr Craggs and Mr Kotsoglo agreed on the view that the proposed 5.4 metre depth of the four car bays at the rear of the Beaufort Street site would be inadequate given that these bays would be accessed from a narrow laneway. If the application were otherwise acceptable, the Tribunal would impose the following condition:
"The north-west (rear) wall of the proposed addition shall be relocated 1.1 metres south-east and the four onsite car bays lengthened to 6.5 metres. This is to be shown on the plans submitted for building licence."
71 Although cl 3.3.6 states that parking areas "shall be designed so as to enable all vehicles to return to the street in forward gear", if this condition were imposed, the Tribunal would be satisfied under cl 1.4.3.1 that it is unreasonable in the particular circumstances of the case to require compliance with this standard. This is because the City appears to have accepted a similar arrangement at the garden centre a short distance away
(Page 24)
- and while the laneway has two way traffic, it is clearly a low speed environment.
Are the noise impacts acceptable?
72 Although he did not raise a concern as to the noise generated by the development in his statement of evidence, Mr Kotsoglo identified the issue during the hearing. With the Church's consent, leave was granted to raise the issue. However, the evidence presented by Mr Kotsoglo was limited. The assessing officer noted that the council was not aware of any complaint in relation to noise generated by current activities of the Church and that "should noise issues arise, these would be addressed by the City's Health Department under the provisions of the Environmental Protection Act".
73 As noted earlier, the proposed auditorium addition would have no external openings other than the rear doors. With the exception of the "island" single residence across the laneway, the site is well removed from residential premises. As noted earlier, the likely peak usage of the site is over a relatively short period of time on Sunday mornings. In these circumstances, the application does not warrant refusal on account of acoustic impact.
Management plan
74 The City proposed that if consent were granted to the proposed development it should be subject to a condition requiring compliance with a management plan. Mr Kotsoglo produced a draft plan which addressed matters such as access, noise containment, litter and anti-social behaviour. It contained requirements including the following:
"The access and egress to and from the Place of Public Worship will also be monitored by staff or security personnel to ensure all guests including children do not loiter and or cause public disturbances."
"The Inglewood Church of Christ will ensure security staff attend the accesses and exits on the busy occasions. The security staff will ensure that patrons do not loiter in the locality upon departure."
"The Inglewood Church of Christ will ensure that anti-social behaviour does not occur within the premises."
(Page 25)
75 A management plan is often a necessary and appropriate measure to regulate a use which, of its nature, is likely to give rise to adverse amenity or other impacts in a locality. An obvious example is licensed premises. It is noteworthy that the summary of the proposed management plan includes the following:
"The Inglewood Church of Christ proposes to operate the Tavern at all times in a manner, which is acceptable to the City of Stirling, and does not disturb the amenity of the local residents of the neighbourhood." (Emphasis added)
76 It is plain that the document was adapted from a management plan required for a tavern.
77 However, by its nature, a church is a land use which is unlikely to give rise to adverse amenity impacts of the type sought to be addressed by the draft management plan, particularly where located in a commercial area. Mr Kotsoglo was unable to identify any development approval granted for a church subject to a management plan.
78 If the application were otherwise acceptable, the Tribunal would not have imposed a requirement that the church comply with a management plan.
Conclusion
79 The Tribunal has found that the proposed development is contrary to the orderly and proper planning of the locality as expressed through the adopted Design Guidelines for the Inglewood Town Centre. The Design Guidelines are the product of community consultation and are plainly a matter of considerable community interest. The clear planning objective reflected in this document is that street front development in the Town Centre should comprise retail shops, restaurants or cafes, or other development which has a similar level of vibrancy and encourages a similar level of pedestrian flows. Although the proposed "café style" church development would be active and lively on Sundays and periodically during the rest of the week, it is clearly not of the character contemplated in the Guidelines.
80 However, church use behind the immediate street frontage and on the first floor of the site would be consistent with orderly and proper planning of the locality. In particular, church use is a "community type activity" contemplated by cl 3.2.6 of the Scheme and the design, setbacks and finishes of the proposed development are consistent with the requirements
(Page 26)
- of cl 3.2.6.1. Moreover, the proposed church use behind and above the immediate street frontage is consistent with the objectives, guiding philosophy and provisions of the Design Guidelines.
81 The Tribunal has found that the development application contains a full and complete description of the proposal in conformity with cl 1.3.5.2(e) of the Scheme. Moreover, the proposed church use does not include welfare-type services of the nature which have given rise to concern on the part of some members of the community because of perceived amenity impacts.
82 The development would generate a demand for 52 car parking spaces at peak times. As only 27 bays are proposed on site, the development involves a non-compliance with the required car parking provision by 25 bays. However, the Tribunal is satisfied that it would be unreasonable in the particular circumstances of the case to require the proposed development to provide the additional 25 spaces, as there is a subsisting development approval for the site as a restaurant involving a concession of 40 spaces, the concession required in this case is considerably less, and the period of the likely peak demand generated by the development is more limited than a restaurant. There are a number of public parking areas in the Town Centre. Moreover, peak demand is likely to occur on Sunday mornings when a number of retail and commercial premises do not trade. In the circumstances of this case, the proposed car parking provision in adequate.
83 In light of these findings, absent the planning intention reflected in the Design Guidelines, the Tribunal would have granted approval to the application subject to conditions. Moreover, had the development application incorporated a café development or a shop in the proposed Lounge Area, the application would have been approved.
Orders
84 The Tribunal makes the following orders:
(1) The application for review is dismissed.
(2) Development approval for alterations and additions at Lot 524 No. 907 Beaufort Street, Inglewood and for the use of that property as a church and Lot 432 No. 98 Tenth Avenue, Inglewood as ancillary parking is refused.
(Page 27)
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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