Jones and Shire of Murray

[2008] WASAT 296

JONES and SHIRE OF MURRAY [2008] WASAT 296

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 296
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:378/2008	Heard:	5 DECEMBER 2008
Coram:	MR J ADDERLEY (SENIOR SESSIONAL MEMBER)	Delivered:	14/12/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Application for review of approval conditions upheld in part Decision varied in relation to conditions
Category:	B
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Parties:	LORETTA JONES SHIRE OF MURRAY
Catchwords:	Development application Child care centre attendance numbers Shire of Murray Whether conditions of approval should limit attendance numbers, impose landscape buffers around play areas and require containment of parking on site Community demand for child care places Nuisance caused by children's play and generation of traffic Neighbour's objections Implications of approved subdivision
Legislation:	Shire of Murray Town Planning Scheme No 4
Case References:	Nil
Orders	1. The application for review is allowed in part.,2. The decision of the respondent made on 29 August 2008 to grant conditional development approval for an increase in the number of child care places at the Ravenswood Learning Centre at No 7 (Lot 101) Lloyd Avenue, Ravenswood is varied as follows:,• Condition 1 is deleted and replaced with the following condition:,1) A maximum of 46 children being accommodated on the site at any one time.,• Condition 3 is deleted.
Summary	This is a review of three conditions of the Shire of Murray's decision to approve a limited increase in the numbers of children permitted to attend a child care centre located on the periphery of a residential area in Ravenswood.,The applicant had sought an increase in child places from 38 to 46.,The respondent's approval, by the imposition of condition 1, restricted the number of permitted places to 42 based on argument that whilst there was a reasonable ground to partly satisfy community demand for some extra child care capacity, any allowance of further places over 42 would cause unacceptable nuisance in the locality.,The applicant argued that the small number of extra children would have negligible impact on the locality in terms of playground noise or traffic.  The applicant cited administrative measures being undertaken to manage possible nuisance factors. ,The respondent sought to impose condition 2, requiring landscaped buffer areas around the proposed outdoor play areas, consistent with requirements of earlier approvals.,The applicant indicated that the condition would be superfluous in the event that an approved subdivision to excise a lot from the child care centre property was implemented.  The new lot resultant from the subdivision would allow the applicant to construct and occupy a dwelling adjacent to the child care centre.  Because of the resultant common ownership and interest, there would be no necessity for a landscape buffer between the properties.,The respondent sought to impose condition 3, requiring the containment on site of all parking associated with the child care centre.  The condition reiterates a condition of the original approval of the child care centre in 2003.,On the question of allowable child care places, the Tribunal rejected the respondent's argument to limit the numbers to 42.  The limitation was not based on any measurable criteria and was therefore considered to be arbitrary in nature.  The Tribunal was not persuaded that an additional four child care places would cause unreasonable nuisance in the locality.,Condition 1 was therefore deleted and replaced with a condition to allow a maximum of 46 children.,On the question of the requirement for a landscaping buffer around the proposed play areas, the Tribunal considered that retaining the condition had merit.  The condition was consistent with requirements of the previous approval wherein the issue of restricting physical access to the boundary fences defining the play areas was considered an important measure to limit noise transmission to adjoining properties.  The condition, in this case, was also tailored to refer specifically to the approved new play areas.  The Tribunal rejected the applicant's argument with respect to intentions relating to the proposed subdivision because the outcomes were uncertain and inconsistent with the present application.,Condition 2 was retained.,On the question of the requirement for containment of all parking associated with the child care centre on site, the Tribunal considered the imposition of a condition to this effect to be unnecessary as it simply reiterated a requirement of the original planning approval and served no useful additional purpose.,Condition 3 was deleted.,In summary, the application for review of the conditions of development approval was upheld in part.  Condition 1 was deleted and replaced to allow accommodation of a maximum of 46 children.  Condition 2 was retained.  Condition 3 was deleted.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JONES and SHIRE OF MURRAY [2008] WASAT 296 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 5 DECEMBER 2008 DELIVERED : 15 DECEMBER 2008 FILE NO/S : DR 378 of 2008 BETWEEN : LORETTA JONES

Applicant

AND

SHIRE OF MURRAY
Respondent

Catchwords:

Development application - Child care centre attendance numbers - Shire of Murray - Whether conditions of approval should limit attendance numbers, impose landscape buffers around play areas and require containment of parking on site - Community demand for child care places - Nuisance caused by children's play and generation of traffic - Neighbour's objections - Implications of approved subdivision

Legislation:

Shire of Murray Town Planning Scheme No 4

(Page 2)

Result:

Application for review of approval conditions upheld in part

Decision varied in relation to conditions

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr C Reed (Acting as Agent)

Solicitors:

Applicant : Self-represented
Respondent : Shire of Murray

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

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This is a review of three conditions of the Shire of Murray's decision to approve a limited increase in the numbers of children permitted to attend a child care centre located on the periphery of a residential area in Ravenswood.

2 The applicant had sought an increase in child places from 38 to 46.

3 The respondent's approval, by the imposition of condition 1, restricted the number of permitted places to 42 based on argument that whilst there was a reasonable ground to partly satisfy community demand for some extra child care capacity, any allowance of further places over 42 would cause unacceptable nuisance in the locality.

4 The applicant argued that the small number of extra children would have negligible impact on the locality in terms of playground noise or traffic. The applicant cited administrative measures being undertaken to manage possible nuisance factors.

5 The respondent sought to impose condition 2, requiring landscaped buffer areas around the proposed outdoor play areas, consistent with requirements of earlier approvals.

6 The applicant indicated that the condition would be superfluous in the event that an approved subdivision to excise a lot from the child care centre property was implemented. The new lot resultant from the subdivision would allow the applicant to construct and occupy a dwelling adjacent to the child care centre. Because of the resultant common ownership and interest, there would be no necessity for a landscape buffer between the properties.

7 The respondent sought to impose condition 3, requiring the containment on site of all parking associated with the child care centre. The condition reiterates a condition of the original approval of the child care centre in 2003.

8 On the question of allowable child care places, the Tribunal rejected the respondent's argument to limit the numbers to 42. The limitation was not based on any measurable criteria and was therefore considered to be arbitrary in nature. The Tribunal was not persuaded that an additional four child care places would cause unreasonable nuisance in the locality.

(Page 4)

9 Condition 1 was therefore deleted and replaced with a condition to allow a maximum of 46 children.

10 On the question of the requirement for a landscaping buffer around the proposed play areas, the Tribunal considered that retaining the condition had merit. The condition was consistent with requirements of the previous approval wherein the issue of restricting physical access to the boundary fences defining the play areas was considered an important measure to limit noise transmission to adjoining properties. The condition, in this case, was also tailored to refer specifically to the approved new play areas. The Tribunal rejected the applicant's argument with respect to intentions relating to the proposed subdivision because the outcomes were uncertain and inconsistent with the present application.

11 Condition 2 was retained.

12 On the question of the requirement for containment of all parking associated with the child care centre on site, the Tribunal considered the imposition of a condition to this effect to be unnecessary as it simply reiterated a requirement of the original planning approval and served no useful additional purpose.

13 Condition 3 was deleted.

14 In summary, the application for review of the conditions of development approval was upheld in part. Condition 1 was deleted and replaced to allow accommodation of a maximum of 46 children. Condition 2 was retained. Condition 3 was deleted.

Introduction

15 This is an application for review of three conditions of the Shire of Murray's (respondent) decision to approve a limited increase in the numbers of children at an existing child care centre. The child care centre, called the Ravenswood Learning Centre, is located at No 7 (Lot 101) Lloyd Avenue, Ravenswood (subject land).

16 The application for the increase in numbers of children to be accommodated at the child care centre was submitted by Ms Loretta Jones (applicant) to the respondent on 7 May 2008.

17 Following advertising of the proposal and the consequent receipt of several submissions, the respondent considered the application in August 2008. A documented determination of conditional approval was issued to the applicant on 29 August 2008. The approval stipulated a lesser increase in numbers of children to be accommodated

(Page 5)

at the child care centre than that applied for.

18 On 2 October 2008, the applicant lodged an application with the State Administrative Tribunal (Tribunal) for review of conditions 1, 2 and 3 of the respondent's decision of approval.

The proposal and its context

19 The Ravenswood Learning Centre is an established child care centre situated on a 2,982 square metre lot on the periphery of the Ravenswood residential locality.

20 The child care centre was originally approved in 2003. Among the conditions of approval were requirements for:

• A 2 metre width landscape buffer along the side and rear boundaries, the implementation of which was to be subject of an approved detailed landscape plan.

• A requirement that all parking associated with the child care centre should be wholly contained on site.

21 Following an appeal to the Tribunal in 2006, approval was granted to extend the hours of operation of the child care centre and to allow the attendance of older children. A condition of this approval required that:

• The internal side and rear perimeter boundaries of the child care centre premises shall be landscaped and permanently maintained with a 2 metre width dense planting of shrubs, bushes and trees in order to effect a supplementary acoustic barrier to playground noise and to restrict the possibility of physical contact with the perimeter fence in the course of children's play.

• The child care centre features a substantial brick building used for administration, service facilities and indoor child care. The rear portion of the premises is utilised for outdoor activities and play. In front of the building is a bituminised drop off and car parking area accessed off Lloyd Avenue.

22 The child care centre is adjoined by residential properties on its western, northern and eastern sides. Across Lloyd Avenue, to the south of the child care centre, lies a large parkland cleared vacant property.

(Page 6)

23 The applicant's proposal is to increase the capacity of the child care centre to accommodate up to 46 children, an increase of eight above the 38 children presently permitted.

Statutory and policy instruments

24 The subject land is located in the residential zone under the Shire of Murray District Town Planning Scheme No 4 (TPS 4).

25 A child care centre is listed as an 'SA' use under TPS 4. An 'SA' use may be allowed by the respondent following advertising of the proposal.

26 The respondent has cited no town planning policies relevant to this application.

The respondent's decision

27 The respondent approved an increase in numbers beyond the presently allowed capacity of the child care centre subject to the following conditions:

1) A maximum of 42 children being accommodated at any one time.

2) A 2 metre wide landscape buffer is to be established and maintained around the northern and western boundaries of the additional area approved, utilising mature plants so as to effectively screen and restrict children's contact with the fence, to the satisfaction of the Director of Planning and Development Services.

3) All vehicle parking associated with the development shall be wholly contained on site.

4) Directional marking is to be undertaken in the car park to clearly demarcate entry and exit points to the site (restricting the eastern side to exit only to allow on site turn around) to alleviate noise associated with traffic turnaround issues at the Lloyd Avenue/ Rodoreda Crescent intersection, to the satisfaction of the Director of Technical Services.

5) The above conditions as relevant shall be implemented prior to the additional places (beyond 38 children) becoming effective.

(Page 7)

The respondent's argument

28 The respondent's argument in defence of the limited conditional approval granted for an increase in child attendance numbers at the Ravenswood Learning Centre was based on a desire to balance the needs for community demand for additional child care services against the need to protect the quality of life and amenity of residents living in proximity to the child care centre.

29 Mr C Reed, Manager of Planning Services for the Shire of Murray, a qualified and experienced town planner provided evidence on behalf of the respondent.

30 Mr Reed outlined the history of the child care centre since its approval in 2003.

31 Mr Reed advised that the respondent had opposed the original application in 2003 and the extension of hours of operation applied for in 2006. The rationale for opposing the applications had been based on concerns expressed by local residents in relation to impacts on residential amenity. On both occasions, conditional approval had been granted by the Tribunal.

32 With regard to condition 1 of the respondent's approval, Mr Reed advised that the limitation of child numbers to 42 was based, in part, on the receipt of objections from adjoining landowners. The objections expressed concern that the proposed increase in numbers would further decrease the amenity of the area because of more noise associated with children playing outdoors, and because more vehicles would undertake turning movements in the street in front of adjoining residences.

33 Mr Reed further explained that the respondent also recognised the demand for child care services and that the decision to allow a modest increase in child attendance would go some way to satisfying community demand.

34 Under examination, Mr Reed accepted that in fact only one submission of objection had been received by the respondent. The objection was submitted by the owner of the adjoining property immediately east of the child care centre.

35 Mr Reed expressed the opinion that the respondent was familiar with local residents' disquiet with the amenity impacts of the child care centre over the years, but that the residents had 'given up' objecting because of a feeling of

(Page 8)

helplessness to influence any outcomes.

36 On the question of the appropriateness of condition 2 requiring establishment of a 2 metre width landscape buffer, Mr Reed advised that the condition reflected a consistency with previous approval conditions. It was appropriate to be specified because landscaping would need to be established on the margin of a new children's playground area identified on the approved plans for the child care centre associated with the present application. Mr Reed identified the plan formally approved by the respondent which illustrated a playground in the north­western portion of the child care centre property.

37 The purpose of the landscaping buffer was to act as a supplementary acoustic barrier and to restrict physical contact with the perimeter fence in the course of children's play.

38 Mr Reed advised that because the area in question had not previously formed part of the approved play area, it had not been landscaped in accordance with the conditions of previous approvals.

39 With regards to condition 3 requiring that all parking associated with the child care centre should be contained on site, Mr Reed advised that this condition reiterated the tenor of a condition of the original approval in 2003. The condition is aimed at ensuring customers and employees of the child care centre do not park their vehicles on the street verge and cause nuisance to local residents.

Applicant's argument

40 The applicant argued that condition 1, limiting the attendance number of children to 42 rather than 46 was unreasonable, and that conditions 2 and 3 are unnecessary because the intent of the conditions to limit playground noise and control parking has already been met.

41 Mrs L Jones, the applicant and proprietor of the Ravenswood Learning Centre, gave evidence in support of the proposed increase in child attendance numbers.

42 Mrs Jones described the community demand for additional child care places at the centre. Letters from parents attested to the need for extra child care places. Generally, parents are very supportive of the centre and its services, but demand for places is rising as a result of development in the area and the need for flexibility to cater for shift workers and workers on call.

(Page 9)

43 Mrs Jones expressed the opinion that the noise of children playing did not impact on the amenity of the area. Established landscaping buffers and staff supervision served to minimise noise levels.

44 Mrs Jones referred to the respondent's planning report which identified that only one objection had been received. The objector resides on the large residential property east of the child care centre. There is a large workshop and a brick fence on that property between the child care centre and the objector's residence.

45 According to Mrs Jones, the majority of traffic to the centre will arrive from the west. Only minimal traffic will be generated from the east passing the objector's property. The centre has initiated a bus collection service for many of the children, thus minimising the impact of traffic in the area. An increase of four child care places would generate a maximum of eight extra car visits per day which is minimal compared to the large residential subdivisions being developed in the immediate area.

46 Mrs Jones advised that two adjoining residents had written to her indicating that they were unaffected by the activities of the child care centre.

47 With regard to condition 2 of the respondent's approval requiring additional landscaping buffers around the outdoor play area, Mrs Jones explained that representatives of the respondent had inspected the established landscape buffer areas along the northern and eastern side fences and these had been approved. Because the western portion of the property was to be subdivided off, and a residence constructed on the new lot for the proprietors of the child care centre, (that is, Mrs Jones and her husband) there was no cause to require a buffer to the western boundary.

48 Mrs Jones pointed out that the new subdivision boundary would result in a more confined play area and that a 2 metre width landscape buffer would unnecessarily further restrict the outdoor play space.

49 Mrs Jones drew the Tribunal's attention to the conditional approval of the subdivision of the subject land effected by order of the Tribunal in the matter of Jones and Western Australian Planning Commission(DR 236 of 2008, dated 28 August 2008.

(Page 10)

50 Mrs Jones also advised of works being undertaken to improve the existing child care centre car park drainage. Winter rains had caused some car park flooding problems resulting in occasions when street parking was preferred by clients. These occasions may have generated some concerns about parking but the situation was being rectified.

Analysis

51 This review raises the following issues:

• whether there are reasonable grounds to withhold the approval for an extra four child care places as originally applied for;

• whether condition 2 requiring a landscape buffer around the new approved playground area is appropriate;

• whether condition 3 requiring vehicle parking to be contained on site requires reiteration; and

• whether the recent subdivision approval of the property has any implication for this review.

52 Because the recent subdivision approval would affect the physical configuration of the child care centre and the nature of land use surrounding it, it would be prudent to consider this last issue first.

53 Of immediate concern is the consideration that the endorsed plan, associated with the respondent's approval of additional child places, identifies the proposed play area to be located on land within the potentially excised residential lot. This raises an obvious difficulty that if the proposed residential lot is created, then the approved playground area may not be able to be used, notwithstanding that an increase in attendance numbers has been allowed.

54 It is apparent that although the respective approvals for additional attendance capacity and the subdivision occurred on consecutive days in August 2008, there is now a potential inconsistency of land use purpose if both approvals are exercised. The applicant, in evidence, intimated that it was her intention to implement the subdivision and construct her family home on the excised lot.

55 It would seem that in the event of the subdivision proceeding, alternative arrangements would need to be arrived at and resolved with the respondent as to the provision of adequate play areas and noise attenuation measures.

(Page 11)

Without such resolution the approval for additional child places would not be compliant with the approved plan.

56 The Tribunal sets out this issue in the interest of pointing out to the parties the potential for conflict arising from the two decisions. It remains however, that the Tribunal has a primary responsibility to concentrate its attention on the matter before it, that is, the review of the application for additional child places at the Ravenswood Learning Centre as it was originally submitted to the respondent in May 2008. Ultimately, it is a matter of choice for the applicant to decide whether either or both approvals should be exercised. Clearly, there will need to be further resolution between the parties if both approvals are sought to be implemented.

57 On the question of grounds to withhold approval of the extra four child care places, the respondent has argued that the presence of extra children will generate additional nuisance to neighbours of the child care centre. This would be manifested through playground noise and increased pick­up and drop­off traffic.

58 The applicant expressed a contrary opinion. Noise and traffic associated with four extra children would be negligible, particularly when considered in the context of arrangements to accommodate the new play area on the western portion of the property abutting the applicant's new dwelling and provisions for reducing car traffic in favour of bus collection trips.

59 The Tribunal is wary of both arguments to the extent that there were mixed messages on both sides.

60 The respondent has already accepted the case for an additional four places, notwithstanding the apparent ongoing concern for noise and traffic nuisance associated with the child care centre. This 'halfway' position, or compromise as it has been described, appears to be entirely arbitrary in the absence of any firmly based rationale for arriving at the acceptable numbers.

61 The applicant's reasoning is also questionable, at least insofar as it is based on implementing the subdivision which would be at odds with the respondent's approved plan for additional child care places granted on 28 August 2008.

62 The Tribunal finds the respondent's argument to limit child attendance numbers to be unsound for the following reasons:

(Page 12)

• The allowable child attendance number arrived at was arbitrary.

• There was little evidence of local objection to the proposal.

• Proposed additional outdoor activity areas are to be located on the western side of the centre, furthest away from the sole objector to the proposal.

• There was no evidence that an additional four children would cause nuisance beyond the threshold of noise and traffic activity presently experienced at the child care centre and in the locality generally.

63 The Tribunal accepts that the child attendance numbers should be 46 as originally applied for.

64 On the question of condition 2 requiring a 2 metre width landscape buffer around the proposed play area in the north­western portion of the child care property, the applicant has argued that such a condition is superfluous because of the intention to subdivide the land and build a residence.

65 The Tribunal acknowledges the intent of the applicant in this regard, but notes that there is no certainty or guarantee of the outcome presently proposed by the applicant. At this juncture no evidence has been put before the Tribunal to indicate that the subdivision approval has been implemented. A realistic possibility is that the subdivision may not be effected and the property configuration remains as it is at present, or there is a possibility that the subdivision will be implemented and the resultant lot sold to another party without interest in the child care centre.

66 In the former case, it is the Tribunal's view that there should be a consistent completion of the originally required landscape buffer in order to discourage physical contact with the boundary fences of neighbours. This physical buffer featured strongly as a desirable requirement in the 2006 review considerations.

67 In the second scenario, the presently approved plan for the new outdoor play area will not be able to be complied with and will thus render the present approval of additional child care places compromised. In such circumstances it may, in the future, require consideration of a fresh application tailored to the new property configuration.

(Page 13)

68 It is noted that the present condition 2 is almost a reiteration of the previously imposed landscape condition arising from the Tribunal's decision of 2006. It could be held that the previously imposed condition remains effective and could be applied by the respondent in the context of this present application. The Tribunal accepts, however, that the condition in this case is matched to the specific location identified on the approved plan and is therefore justified in its proposed wording.

69 The Tribunal accepts the respondent's purpose in imposing condition 2.

70 The respondent argued that condition 3, requiring vehicle parking to be retained on site, should be reiterated to ensure that the requirement was strictly complied with. There is a continuing concern about on street parking causing a level of nuisance in the locality.

71 The Tribunal sees no purpose in a reiteration of this requirement. The originally imposed condition remains a valid instruction and expectation in terms of parking management and it is unnecessary to pursue its obligation on the applicant by repetition.

72 Condition 3 is therefore considered superfluous.

Conclusion

73 Based on the preceding analysis the Tribunal concludes that the application for review of the respondent's decision to impose certain conditions on its approval for a limited increase in the number of child care places at the Ravenswood Learning Centre should be upheld in part.

74 Accordingly, the decision of the respondent is varied in relation to conditions 1 and 3.

Order

1. The application for review is allowed in part.

2. The decision of the respondent made on 29 August 2008 to grant conditional development approval for an increase in the number of child care places at the Ravenswood Learning Centre at No 7 (Lot 101) Lloyd Avenue, Ravenswood is varied as follows:


(a) Condition 1 is deleted and replaced with the following condition:

(Page 14)

i) A maximum of 46 children being accommodated on the site at any one time.

(b) Condition 3 is deleted.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J ADDERLEY, SENIOR SESSIONAL MEMBER