JAKABY PTY LTD and SHIRE OF MUNDARING
[2011] WASAT 159
•3 OCTOBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JAKABY PTY LTD and SHIRE OF MUNDARING [2011] WASAT 159
MEMBER: MR J JORDAN (MEMBER)
HEARD: 24 JUNE 2011
FINAL DOCUMENTS FILED 1 JULY 2011
DELIVERED : 3 OCTOBER 2011
FILE NO/S: DR 20 of 2011
BETWEEN: JAKABY PTY LTD
Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning - Development refusal - Medical clinic - Change of use from single house Residential zoning - Three residential lots removed from local centre zone - Located on local distributor road Discretionary use in residential zone Public notice of proposed development required Impact on local amenity Availability of practicable parking Objectives for residential zone Local commercial strategy Orderly and proper planning
Legislation:
City of Swan Local Planning Scheme No 17
Local Commercial Strategy, cl 3.1, cl 4, cl 9.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Mundaring Town Planning Scheme No 3, cl 1.12, cl 1.12(a), cl 1.12(e), cl 3.1(4), cl 3.1(7), cl 3.1(7)(c), cl 3.2(2), cl 6.6, cl 6.6.1(b), cl 6.7, cl 6.7(b), Table 2, Table 3, Table 4
Result:
The application for review is dismissed
The refusal of the application for planning approval for the proposed medical clinic on the site is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr P Kotsoglo (Acting as Agent)
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicant: Planning Solutions, Town Planning Consultants
Respondent: Shire of Mundaring
Case(s) referred to in decision(s):
Mandurah Doctors and City of Mandurah [2007] WASAT 57
Telstra Corporation and City of Wanneroo [2011] WASAT 77
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Shire of Mundaring refused an application for planning approval for a change of use from single house to a medical clinic. The house is in Myles Road, Swan View on a residential zoned lot which is the third residential zoned lot north of an existing local shopping centre.
The relevant issues in this matter were the impact of the proposed development on the local amenity, the provision of practicable parking and orderly and proper planning.
The Tribunal found that the service to the local residents that would be provided by the medical clinic did not outweigh the impact the proposed development would have on the amenity of the neighbours and locality. The Tribunal also found that the development would not provide a practicable parking layout. The Tribunal concluded that the proposed development would not satisfy the objectives of the local planning scheme and commercial strategy and so would not be consistent with orderly and proper planning.
The Tribunal dismissed the application for review.
Introduction
These proceedings involve an application by Jakaby Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Shire of Mundaring (Shire or respondent) to grant planning approval for the change of use of a dwelling from 'single house' 'medical clinic (general practitioners)' at No 10 (Lot 143) Myles Road, Swan View (site).
Site and locality
The site has an area of 698 square metres with a frontage of 20 metres to Myles Road at the western end. There is a single storey single dwelling on the lot set back about 11 metres from the front boundary, 1.5 metres from the northern boundary and 14 metres from the rear boundary. Across the front boundary is a 1.8 metre high front fence with an opening to a 4 metre wide driveway adjacent to the southern boundary of the site which extends between the back yard and a crossover to Myles Road.
Myles Road is a local distributor road which extends northward from a junction with Morrison Road, which is about 250 metres to the south of the site, to serve the local residential areas of Swan View and Stratton. Morrison Road is a major district distributor which extends from the town centre of Midland, which is to the west of the site, to the foot of the Darling Scarp, which is east of the site. To the north, east and west of the site are residential lots with single residential dwellings and across the road are grouped dwellings.
To the south of the site is the Darling Ridge Shopping Centre on the northeast corner of the junction of Myles Road with Morrison Road. The shop in the northwest corner of this shopping centre is a pharmacy and the centre includes a service station facing Morrison Road. The two residential lots between the shopping centre and the site each contain a single house.
On the northwestern corner of the junction of Myles Road with Morrison Road is a bar and bistro with a car park extending about 150 metres along the Myles Road frontage. The entrance to the car park of this bar and bistro is about 100 metres to the southwest of the site. To the west of the bar and bistro on Morrison Road is a 72 unit retirement village and adjacent to that is a small group of shops.
Diagonally opposite the Darling Ridge Shopping Centre on the south side of Morrison Road is the Swan View Senior High School and to the east of the school is a further retirement village, beyond which is the Swan View Primary School. To the south of the retirement village is the Swan View Shopping Centre on the corner of Marlboro Road and Gladstone Avenue which includes a pharmacy and a medical practice.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme (MRS). Under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3), the site is zoned Residential with a density coding of R12.5. The two residential lots adjoining to the south of the site have the same zoning and density coding. Land to the north and east is also zoned Residential under TPS 3.
Myles Road is the boundary between the Shire of Mundaring and the City of Swan. The land directly opposite the site in the City of Swan is zoned Residential under City of Swan Local Planning Scheme No 17 (Swan LPS 17).
Under TPS 3, the use 'medical clinic' is identified as an 'SA' use in the Zoning Table. Under cl 3.2(2) of TPS 3, planning approval can be issued for an 'SA' use by the Shire following 'special consideration'. Clause 6.6 of TPS 3 requires that, for an 'SA' use, the development must be advertised for public comment.
Clause 1.12 sets out general objectives for TPS 3 which include:
(a)to zone land within the District for the purposes described in the Scheme so as to promote the orderly and proper planning and the preservation and enhancement of amenity within the [D]istrict;
…
(c)to ensure the orderly and proper use and development of land within the District;
…
(e) to promote the health, safety, convenience and the economic and general welfare of the District
…
The definition of 'medical clinic' in TPS 3 is:
… a building used by one or more medical practitioners, physiotherapists, dentists, or persons ordinarily associated with health care, or their employees and may also include ancillary services such as chemists, but does not include a hospital.
Clause 3.1(7) of TPS 3 sets out the general objectives for the Residential zone which include:
(c)[T]o limit nonresidential activities to those of which the predominant function is to service the local residential neighbourhood and for selfemployment or creative activities, provided such activities have no detrimental effect on the residential amenity[.]
Clause 6.7 of TPS 3 sets out matters to be taken into account when an application for planning approval is considered. These include:
…
(b)the preservation of the amenity of the locality;
(c)the orderly and proper planning of the area within which the land is situated;
…
(e)whether the proposal would generate a significant increase in vehicular traffic and, if so, whether the site:
(i)has a frontage to a main or secondary road; and
(ii)is capable of providing safe vehicular ingress and egress;
…
(q)such other matters as Council considers relevant.
Clause 3.1(4) of TPS 3 sets out the general objectives of the 'Local Centre' zone which includes the Darling Ridge Shopping Centre. The objectives of this zone include:
(a)to provide businesses of a limited size within a local population catchment to serve the immediate needs of that catchment;
…
(j)to provide car parking and landscaping appropriate to the scale of development;
…
(m)to ensure that where any development adjoins zoned or developed residential properties, such development is suitably set back, screened or otherwise treated so as not to detract from the residential amenity.
Table 2 of TPS 3 sets out site requirements for particular land uses. For a medical or veterinary clinic, the development requirements are a 7.5 metre front setback, 3 metre side setbacks and 7.5 metre rear setbacks. Table 3 of TPS 3 requires that a medical clinic provide the following number of car bays:
[five] for every consulting room plus one per staff member.
In 1992, the Shire adopted its Local Commercial Strategy. The Local Commercial Strategy provides that, for Swan View:
The Marlboro Road Neighbourhood and Morrison Road Local Commercial Centres both be retained at their current retail floorspace level to service the weekly and everyday convenience shopping needs of the community, respectively.
Clause 3.1 of the Local Commercial Strategy outlines the 'Policies and Key Principles' which include:
…
•the need to contain the spread of commercial activities in the urban areas and to direct the growth to the commercial centres;
…
•contain ribbon development;
•discourage ad hoc growth and expansion of existing centres outside of planned centres[.]
Clause 4 of the Local Commercial Strategy states that:
The strategy objectives are as follows:
…
•Direct future commercial development to planned commercial centres to avoid ad hoc indiscriminate development being dispersed over the urban and rural areas of the Shire;
•Optimise the provision and use of local infrastructure through directing and concentrating commercial development and other associated facilities in the commercial centres[.]
…
Clause 9.3 - Swan View Commercial Centre - of the Local Commercial Strategy notes that:
The two shopping centres should remain as is, with any future growth to be community facility based and directed to the Marlboro Road centre.
The Shire advertised its draft Local Planning Scheme No 4 (draft LPS 4) in February 2011. The outcome of this advertising is not known. It was proposed the site remain in a Residential zone under LPS 4 and it was common ground at the hearing that consideration of the proposed use under LPS 4 would essentially be the same as under TPS 3.
Proposed development
It is proposed to change the use of the site from single house to medical clinic. The development proposal before the Tribunal included, by agreement of the parties, a variation to the original site plan (exhibit 10). The amended plan was titled 'Proposed Site Plan – Option B' (Option B site plan) and showed changes to parking bays and landscaping beds. The medical clinic is to comprise:
•two consulting rooms;
•one treatment room;
•reception waiting area;
•ancillary administration and staff amenity areas; and
•landscaping, vehicle access and parking areas.
The proposed development includes six parking bays in the front yard between Myles Road and the clinic building. These parking bays would be in three adjacent tandem pairs. This parking area would be separated from the Myles Road verge by a 1.2 metre wide landscaping strip and from the northern boundary by a 2.5 metre wide landscaping strip. The proposal was that the three staff cooperate in the use of tandem bays.
The driveway adjacent to the southern boundary of the site would lead to the rear of the site where it was proposed that there be a driveway giving access to six parking bays and one disabled parking bay perpendicular to and abutting the rear boundary. A parking bay parallel to and abutting the rear of the building was deleted in the Option B site plan to provide for vehicle manoeuvring space and a 1 metre wide landscape strip adjacent to the rear fence. All parking bays were shown as 2.5 metres wide and 5.5 metres deep.
The medical clinic would be occupied by two general practitioners and one administrative staff member and the application was for it to operate between the hours of 8 am and 8 pm Monday to Sunday.
Issues
The issues identified by the parties can be summarised as:
1)Whether there will be an impact on amenity as a result of the development of a nonresidential use in a Residential zone;
2)Whether there is ability for a medical clinic to be accommodated on more appropriately zoned land with existing commercial facilities in the locality;
3)Whether the proposal has sufficient practicable parking available;
4)Whether there is the possibility for the site to accommodate future growth and development of the medical clinic; and
5)Whether the proposal is consistent with orderly and proper planning with respect to its use class and the zoning and location of the site.
Discussion
Issue 1: Whether there will be an impact on amenity as a result of the development of a non-residential use in a Residential zone
The applicant called Mr Ben Doyle, a town planner, as an expert witness. Mr Joe Algeri, a town planner, represented and also appeared as an expert witness for the respondent.
TPS 3 includes the following interpretation:
[A]menity – in the case of a residential locality means the quality and the conditions and the characteristics of the locality which contribute to its pleasantness and harmony and its better enjoyment.
The experts agreed that the removal of the 1.8 metre high front wall from the frontage of the site would improve the streetscape and the local visual amenity.
Mr Doyle said the local character and amenity included the nearby nonresidential uses. The two houses to the south of the site already had an amenity influenced by traffic on the local distributor road and cars and people attracted to the uses in the shopping centre and the tavern car park opposite. Mr Doyle argued that the development, including the parking, would be consistent with the standards of TPS 3.
Mr Doyle used photographs to illustrate the front yards of neighbouring houses being used for the parking of cars and caravans and likened the traffic movements of a large household to those generated by the proposed use.
Mr Doyle said the level of amenity of residents included the provision of services and if there was any impact from the development on the local amenity this would be outweighed by the level of service that would be provided by the medical clinic. This outcome was consistent with the objective at cl 1.12 of TPS 3 of ensuring the health, convenience and general wellbeing of the District.
The applicant said Mandurah Doctors and City of Mandurah [2007] WASAT 57 (Mandurah Doctors) cited by the respondent in support of its refusal was irrelevant to this matter. Mandurah Doctors concerned four practitioners and 22 car bays and so was said by the applicant to be of a different scale and intensity of development in a locality with an existing level of amenity different from that in the locality of the site.
Mr Algeri said that north of the commercial uses at the junction of Myles Road with Morrison Road, the locality was residential in appearance and amenity. The proposed use would extend the commercial activity and streetscape into the residential area.
Mr Algeri considered the site too small for the proposed use. This would result in the front yard having to be paved and to be used as a parking area for six cars. He said that the area required to be paved did not leave sufficient area for landscaping to screen the parked cars and paving and this would have an impact on the streetscape.
Mr Algeri said the site had residential dwellings on three sides and opposite. The 'SA' categorisation under the Zoning Table of TPS 3 required that the use be advertised for comment and he agreed with the concern expressed by the neighbours that they would be affected by the use of the yard for parking and the hours of operation of the use. In his submission, the two houses that would be 'sandwiched' between the site and the shopping centre would particularly have their level of amenity reduced.
Mr Algeri said the proposed use might serve the local community as required by the objectives at cl 3.1(7) of TPS 3, but would have a detrimental impact on the local residential amenity and so was unacceptable.
The Tribunal is conscious that a medical clinic would provide a service to those local residents who had the opportunity to attend. The Tribunal is not persuaded, however, that the convenience to residents that might result from medical practitioners being located closer, than is now the case, outweighs the impact there would be on the amenity of the neighbours and on the street from the proposed development on the site. The Tribunal has concluded from weighing the evidence and the submissions in this matter that the impact of the proposed development on the local amenity is unacceptable in planning terms.
Issue 2: Whether there is an ability for a medical clinic to be accommodated on more appropriately zoned land with existing commercial facilities in the locality
The respondent referred to the objective of the Local Commercial Strategy of directing commercial development to existing commercial centres to avoid indiscriminate development being dispersed over the urban areas of the Shire. The respondent was aware of one vacancy in the Marlboro Road centre but was not aware of any premises being available for lease and suitable for the proposed use. The respondent said it would be preferable if the proposed use was included within a commercial centre with uses such as a chemist or alternatively located on a larger lot well within the residential area to better serve the local residents.
The applicant's submission on this issue reflected the Tribunal's findings in Telstra Corporation and City of Wanneroo [2011] WASAT 77 (Telstra). Telstra was concerned with the development of a mobile phone tower on a specific site in the suburb of Mariginiup. At [71] – [72] the Tribunal stated:
The Tribunal did have before it, however, a proposal to erect the proposed facility on the site. The task of the Tribunal, therefore, was to determine whether or not to affirm the refusal of the application for the proposed facility on the site or to set aside the refusal and grant planning approval: s 29(3) of the State Administrative Tribunal Act 2004 (WA).
The Tribunal considers that whether there might be other sites available is not determinative of this matter. While another site might be found, the essence of the matter before the Tribunal is whether the visual impact of the proposed facility on the site would be such that the development should be refused, notwithstanding the benefits it would bring to telecommunications in Tapping and Ashby. It is the findings of the Tribunal on the other issues, particularly issues 2, 3 and 4 above, which are determinative of this matter.
With respect, the Tribunal seeks to adopt the same principle in determining the current proceeding. That is, it is necessary for the Tribunal to determine whether or not the proposed use on the site might be allowed. Whether alternative sites might be available is not determinative of the matter and it is the other issues identified by the parties, particularly Issue 1, Issue 3 and Issue 5 which are significant in the determination of this matter.
Issue 3: Whether the proposal has sufficient practicable parking available.
The experts agreed that in accordance with Table 3 of TPS 3 the proposed development required 13 car bays, being three for staff and 10 for the two consulting rooms. The parties discussed a variation to the design of the landscape strip along the front boundary of the site to facilitate vehicle access into the bays adjacent to the landscaping strip, although Mr Algeri pointed out that to turn into these front yard bays, a car would have to move to the right of the driveway, which he considered unsafe. The design change related to the Option B site plan.
Mr Algeri said that Table 4 of TPS 3 required 2.6 metre wide bays and the bays proposed were 2.5 metres wide. Mr Doyle said 2.5 metres was the current Australian Standard, but 2.6 metre wide bays could be provided while still maintaining landscaping strips along the boundaries of the site.
Mr Algeri argued that the tandem arrangement was not practicable. This was because patients and most likely doctors would require unfettered access to parking bays throughout the day. In addition, a patient entering the site who found that there was no parking bay available would have to back out onto Myles Road, which Mr Algeri considered unsatisfactory. Mr Doyle said that this would be a small practice and parking would be readily managed. Tandem parking, especially for staff was not uncommon.
The Tribunal notes that the required number of parking bays is provided. The Tribunal is of the view, however, that, in practical terms, the need for patients to be aware of the requirement to use tandem parking and the difficulty of the access to these bays effectively reduces the number of useful bays. The use of the tandem bays requires reduction in the length of the landscape strip at the front of the site and if the bay widths were increased to comply with the standard at Table 4 of TPS 3, the open area around the bays would be reduced further, albeit marginally. The respondent also commented on the need for car doors to open over the landscaped strips. The applicant said this was common in most car parks, but it does bring into question the capacity to maintain landscaping at such points with the limited width of landscaped strips proposed.
TPS 3 includes power to vary standards and the parties discussed the merit of reducing the number of bays to 12. The Tribunal is not satisfied that this would resolve the concern about staff and patients sharing tandem bays.
The Tribunal has formed the view that the site appears too small to have a parking layout appropriate to a medical clinic. This view is reinforced by the need to pave much of the front yard and the all day parking of cars in this area to comply with parking requirements. This is directly relevant to the comments on the impact the proposed use would have on the immediate locality discussed under issue 1 above.
Issue 4: Whether there is the possibility for the site to accommodate future growth and development of the medical clinic.
The respondent said that there was no opportunity for future growth or expansion of the use on the site. If growth or expansion were to occur the use of adjoining lots would have to be considered creating further encroachment of nonresidential activities into the residential area.
The applicant's submission was that any consideration of future expansion of the use was speculative. Any future growth would have to be the subject of a separate application for planning approval to be determined on its merits at that time.
The two planning experts agreed that this issue was not determinative of the matter. The Tribunal notes that a discrete use had been applied for and considers that it would not be helpful in determining the matter to speculate on whether future occupants might want to change or expand the use of the site and whether the site could accommodate such future plans.
Issue 5: Whether the proposal is consistent with orderly and proper planning with respect to its use class and the zoning and location of the site
The applicant's submission was that the proposed development warranted approval and would be consistent with the objectives of TPS 3. Statistical evidence revealed a shortage of medical practitioners per capita in this locality and so the medical clinic would promote the health of the locality as required by the objective at cl 1.12(e) of TPS 3.
In respect of the objectives for the Residential zone, the applicant said that the predominant function of the proposed use would be 'to service the local residential neighbourhood' as required by cl 3.1(7) of TPS 3.
It was the applicant's submission that the importance of the proposed use as a service to local residents outweighs any amenity objections. This was said to be supported by the location of the use at the periphery of the residential area and nearby to the commercial uses, which importantly include a chemist, rather than in a quiet residential street.
The applicant said that, because of its age, the Local Commercial Strategy did not address the circumstances of the proposal. The Local Commercial Strategy objectives included directing commercial development to existing centres and preventing the ad hoc expansion of shopping centres. There was no floor space available for the use in the local shopping centres and significantly, in the applicant's submission, the proposed use was qualitatively different from a showroom or shop. The development would provide a service to the local residential population and therefore would not result in the spread of other nonresidential uses into the Residential zone.
The applicant said the proposed development would be consistent with orderly and proper planning because TPS 3 provides discretion to allow the use in a Residential zone and the use would be consistent with the objectives for the zone and would satisfactorily address development standards.
Mr Algeri did not dispute that the medical practitioners would provide a service to the local residents. He argued, however, that the use would have an impact on the local amenity and so in this regard, would be inconsistent with the objective for the District at cl 1.12(a) of TPS 3 and with the objective for the Residential zone at cl 3.1(7)(c) of TPS 3, which both required consideration of the impact of a proposed use on the local amenity.
The opinion of Mr Ageri was that there had not been 'wholesale' changes to the planning situation in Swan View over the last 20 years and the Local Commercial Strategy was still relevant. In his submission the development in the location proposed would be an ad hoc inclusion of a nonresidential use into the Residential zone and a form of ribbon development in conflict with the objectives of the Local Commercial Strategy. He was concerned that the two houses to the south would be vulnerable to pressures for redevelopment to nonresidential uses because they would have nonresidential uses to both sides and opposite.
The respondent said the proposed development would not be consistent with orderly and proper planning because of the impact on local amenity and the location of the use within the Residential zone would be inconsistent with the objectives of TPS 3 and the intent of the Local Commercial Strategy.
The Shire has in place TPS 3 (as amended), gazetted in 1994 and its Local Commercial Strategy, adopted in 1992. As stated by the applicant, these are now well past the time that planning schemes and policies are reviewed. Draft LPS 4 has not yet achieved the status of imminence and certainty of a seriously entertained planning proposal to be afforded any significant weight in this matter, although as stated above, in its present form, draft LPS 4 would require much the same consideration of the proposed development as now being undertaken.
TPS 3 and the Local Commercial Strategy are, however, the currently adopted and applied planning instruments relevant to this matter and the proposed development must be considered in light of them to be consistent with the principles of orderly and proper planning.
TPS 3 identifies medical clinics as a 'SA' use. Under cl 6.6.1(b) discretion may be exercised to allow the development if it is advertised for comment. The development must also be considered to be consistent with the objectives for the zone under TPS 3. This is described as a 'special approval' at cl 3.2(2) of TPS 3.
TPS 3 requires consideration of the impact of a proposed development on amenity under the objectives for the District: cl 1.12(a), the Residential zone: cl 3.1(7) and as one of the considerations when determining an application: cl 6.7(b). Impact on amenity is a planning consideration common to most town planning schemes and Mandurah Doctors is one illustration of this principle notwithstanding there were differences in the particulars of that development.
As set out in the discussion of Issue 1 above, the Tribunal has formed the view that, because of the form of development proposed and the particular location of the site, the proposal would have an impact on the local amenity that outweighs any service to the local residential neighbourhood.
The Tribunal would add that it has formed the view, consistent with that of the respondent, that the location of this nonresidential development in the Residential zone would be inconsistent with the objectives of the 'key principles' at cl 3.1 of the Local Commercial Strategy. In particular, the development would effectively be ad hoc growth of the commercial centre in the form of what can be argued to be a contribution to ribbon development.
The Tribunal's conclusions on the issues have led to the view that the proposed development is undesirable in this location. The applicant did submit that a medical clinic could be distinguished from other commercial uses, but the Tribunal is not persuaded to this view. The Tribunal considers that if the development were allowed, there is a real potential for later applications for undistinguishable nonresidential uses on neighbouring lots, particularly the two lots adjoining to the south. The Tribunal has therefore concluded that the proposed development would not be consistent with orderly and proper planning with respect to its use class and the Residential zoning and location of the site.
At the hearing the experts had exchanges on where within the Residential zone the discretion available under TPS 3 might be exercised and a medical clinic allowed. Mr Doyle said locating the use elsewhere within the Residential zone would be more disruptive to the neighbours than the proposed site. Mr Algeri's preference was a larger lot that would better accommodate parking and landscaping and located so that the nonresidential use would not be viewed as an ad hoc extension of the shopping centre. The Tribunal considers it would not be appropriate to make passing comment on the preferred location and suitability of any other lot in the locality for a medical clinic.
Conclusion
The Tribunal has been concerned with assessing the merits of the proposed development on the site. From its deliberations on the issues, and particularly having regard to the conclusions reached on Issue 1, Issue 3 and Issue 5, the Tribunal found that there is no basis for the 'special approval' required for the proposed use under cl 3.2(2) of TPS 3. The Tribunal has therefore decided to dismiss the application for review.
Orders
1. The application for review is dismissed.
2.The refusal of the Shire of Mundaring to grant planning approval for the proposed medical clinic on the site is affirmed.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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