JOUBERT and CITY OF JOONDALUP
[2005] WASAT 330
•13 DECEMBER 2005
JOUBERT and CITY OF JOONDALUP [2005] WASAT 330
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 330 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:447/2005 | 5 AUGUST 2005 9 SEPTEMBER 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 13/12/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application is allowed subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | HENNIE JOUBERT CITY OF JOONDALUP |
Catchwords: | Refusal of development application – Change of use from medical centre to residential building (short-stay accommodation) – Mixed use zone – Amenity of locality – Aged persons dwellings adjoining |
Legislation: | Town Planning and Development Act 1928 (WA) Residential Design Codes of Western Australia 2002 |
Case References: | Foley v Waverley Municipal Council (1962) 8 LGRA 26 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : JOUBERT and CITY OF JOONDALUP [2005] WASAT 330 MEMBER : MR J JORDAN (MEMBER) HEARD : 5 AUGUST 2005
- 9 SEPTEMBER 2005
- Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Refusal of development application – Change of use from medical centre to residential building (short-stay accommodation) – Mixed use zone – Amenity of locality – Aged persons dwellings adjoining
Legislation:
Town Planning and Development Act 1928 (WA)
Residential Design Codes of Western Australia 2002
(Page 2)
Result:
The application is allowed subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr Vernon Butterly
Respondent : Mr Stephen Allerding
Solicitors:
Applicant : As Agent
Respondent : As Agent
Case(s) referred to in decision(s):
Foley v Waverley Municipal Council (1962) 8 LGRA 26
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The building on lot 407 Glenelg Place in Connolly was originally built as a medical centre with four suites of consulting rooms. The building has apparently been empty, except for a dentist in one set of rooms, for approximately seven years. The dentist has now moved to the Connelly Shopping Centre, which adjoins to the north. Mr Hennie Joubert, the current owner, applied to the City of Joondalup to change the use to a residential building of 11 short-stay accommodation units.
2 The City of Joondalup refused the application. Lot 407 is zoned "Mixed Use" and the City is concerned that using the building for short-stay accommodation will frustrate the objective in the town planning scheme of this site being available for mixed use developments that provide services to the local community. The City also expressed concern that use of the building as short-stay accommodation units will have a detrimental impact on the amenity of the residents who live in the retired persons dwellings that back onto the site. Doors to five of the rooms would be at the rear of building about 3 metres from the fence with the neighbours.
3 Mr Joubert says that the building being vacant for a number of years illustrates a lack of demand for consulting rooms. He argues that use of the building for short-stay accommodation will provide a service and will attract people to the locality who will make use of local services and businesses. Mr Joubert also said the management of the short-stay accommodation will ensure that there is no disturbance to the neighbours.
4 The Tribunal has found that the proposed short-stay accommodation is a use that is consistent with the objectives of the mixed use zone and the impact of the use on amenity of the locality will not be such as to warrant refusal. The application has been allowed subject to conditions.
The application
5 Mr Hennie Joubert (applicant) has lodged this application for review of the decision by the City of Joondalup (respondent) to refuse to grant planning consent for the change of use of the building at lot 407 Glenelg Place, Joondalup (subject land) from medical centre to residential building - short-stay accommodation.
(Page 4)
6 Glenelg Place is a short cul-de-sac off Country Club Boulevard, the local distributor road, and is effectively a service road separated from Country Club Boulevard by a vegetation strip. Glenelg Place also provides access to a community centre built on a lot adjoining to the south of the subject land and the Connelly Shopping Centre which adjoins to the north. Four hundred metres to the north at the end of Country Club Boulevard are the Joondalup country club, hotel and golf course. To the east at the rear of the subject land is the Fairview Retirement Village.
7 On the subject land is a single storey medical centre, approved in 1987, set back about 30 metres from the Glenelg Place frontage. In that front setback is a poorly marked bitumen parking area, which extends into the Glenelg Place reserve and into the community centre site and the shopping centre site. The medical centre building is set back 3 metres from the rear, eastern boundary which is common with the retirement village. Four of the residences in the retirement village have a common boundary with the subject land. At the northern end of the fence dividing the subject land from the retirement village, is a gate through which the residents of the village gain access to a path on the subject land beside the medical centre to the car park and eventually to the shopping centre and the community centre.
8 The building on the subject land is an "L" shape, and originally comprised three suites of consulting rooms parallel with the eastern boundary and a suite of doctor's consulting rooms parallel with the southern boundary.
9 The application for planning consent proposed the conversion of the building to 11 short-stay accommodation units. Three units would have two bedrooms, the remainder one bedroom, and each would have some self-catering facilities. No meals or alcohol would be provided by the management. Maximum occupancy would be 28 persons. There are also rooms set aside for reception, an office, a store and a laundry. Clothes-lines are located in the rear setback area. Five of the units have doors opening into the 3 metre wide setback area between the building and the boundary common with the retirement village. Access to these units is from a path which runs within the setback.
10 A section of the car park in front of the building would be fenced to set aside parking exclusively for the units. The remainder of the parking area on the subject land would remain available for general parking by visitors to the neighbouring land uses.
(Page 5)
Planning framework
11 The subject land is zoned "urban" in the Metropolitan Region Scheme. Under the respondent's District Planning Scheme No 2 (DPS 2) the subject land is zoned "mixed use". Clause 3.5.1 of DPS 2 states:
"The Mixed Use Zone is intended to accommodate a mixture of residential development with small businesses in a primarily residential scale environment. The predominant non-residential uses will be office, consulting, dining and limited retail uses occupying the street frontage of lots.
The zoning will provide an intermediate stage between Residential and Commercial or Business Zone areas. A high level of pedestrian amenity should be provided.
The objectives of the Mixed Uses Zone are to:
(a) provide a diversity of landuse and housing type compatible with the maintenance of residential amenity;
(b) allow appropriate businesses locate and develop in close proximity to residential areas;
(c) allow for services to be provided locally."
12 The respondent characterised the proposed use as a residential building. Schedule 1 of DPS 2 defines a residential building as follows:
"Residential building: has the same meaning given to it in the Residential Planning Codes."
13 At cl 2.2 of the Residential Design Codes of Western Australia 2002 (codes) it states:
"Residential Building:
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
- • temporarily by two or more persons; or
• permanently by seven or more persons,
(Page 6)
- who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel, or a residential school."
14 In the zoning table of DPS 2 for the mixed use zone a residential building has the symbol "D", which means that the use is not permitted, but discretion may be exercised and approval granted. In exercising discretion, the respondent can choose to advertise the proposed use. The respondent must also have regard to the matters set out in cl 6.8, which include, relevantly:
"6.8.1 The Council when considering an application for Planning Approval shall have due regard to the following:
(a) interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b) any relevant submissions by the applicant;
…
(e) any other matter which under the provisions of the Scheme the Council is required to have due regard;
…
(i) the comments or wishes of any objectors to or supporters of the application;
…
(k) any other matter which in the opinion of the Council is relevant.
6.8.2 In addition to the matters referred to in the preceding sub clause of this clause, the Council when considering whether or not to approve a "D" or "A" use application shall have due regard to the following (whether or not by implication or otherwise they might have required consideration under the preceding subclauses of this clause):
(Page 7)
- (a) the nature of the proposed use and its relationship to the use of other land within the locality;
(b) the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building;
(c) the nature of the roads giving access to the subject land;
(d) the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development;
(e) any relevant submissions or objections received by the Council; and
(f) such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise."
The Decision
15 The respondent refused the application for planning approval for the following reasons:
"1. The proposed land use is not in keeping with the intent of the Mixed Use zone;
2. The proposal will detrimentally affect the amenity of the adjoining residential development."
Discussion
Intent of the mixed use zoning
16 Mr Stephen Allerding, a planning consultant appeared for the respondent. It is the respondent's case that the intent of the mixed use zone as set out in DPS 2 is to provide for the establishment of a mix of businesses and services that service the needs of the local community, not the wider district or people travelling from elsewhere to the locality. The immediate locality was identified as largely that of the catchment of the local shopping centre on the adjoining lot.
17 When asked about the reference to residential uses in the objectives for the mixed use zone and how they would provide a service to the local
(Page 8)
- community, Mr Allerding's submission was that the residential component is intended to be in addition to some other form of commercial activity. The intention, in the respondent's view, is that the nature of the services is to be at a residential scale.
18 The respondent said the medical centre developed on the site was a use that served the local community. It was acknowledged that the former use did not provide a mix of uses, but it was argued that under DPS 2, any new development that required the exercise of discretion should provide a mix of uses for use by the local community. Mr Allerding emphasised that the proposed use is a single use not providing a service to the locality community, as the users of the units will mostly be persons from outside the locality staying for a short period for business or tourist purposes. Approval would result in an opportunity cost to the community in that the site would no longer be available for a mix of businesses that did provide services to the local community. This, it was argued, would not be in the interests of the orderly and proper planning of the locality.
19 Mr Vernon Butterly, the planning consultant who presented the case for the applicant, pointed out that the development on the subject land had mostly been vacant for some years, providing no services to the local community. It was submitted that persons visiting residents of the retirement village might have cause to use the units if staying for any period of time, as might visitors to the nearby golf course, although these were suggestions supported by Mr Butterly's experience rather than specific evidence. It was further submitted that, in his experience, uses in mixed use zones elsewhere did not necessarily cater only for the local community.
20 Mr Butterly had the respondent's witnesses confirm the uses operating within the adjacent shopping centre included beauty parlour, bottle shop, supermarket, chemist, dentist from the medical centre, hairdresser, estate agent and restaurants, and went on to argue that the uses being suggested for the mixed use zone would be replicating and competing directly with those uses in a limited local catchment. This, he argued, would not be consistent with maintaining the viability of the local centre and ultimately the range of services available to the local community would be adversely affected. This, he said, was not orderly and proper planning. Mr Butterly pointed to uses allowed in the zone similar to the proposed use, such as grouped and multiple dwellings, with discretion, and single house as a permitted use.
(Page 9)
- Comment
21 On Mr Butterly's contention that the proposed use is more consistent with orderly and proper planning than a commercial use, it must be said it is not the Tribunal's role to protect businesses from competition from other businesses proposed to be commenced in any area. It is the role of the Tribunal to assess a particular development proposal in the light of the planning controls in place:Kentucky Fried Chicken Pty Ltd v Gantidis(1979) 140 CLR 675.
22 The mixed use zone "is intended to accommodate a mixture of residential development with small business in a primarily residential scale environment". The objectives, as set out above, include diversity of housing types, location of businesses and the provision of services locally. Achievement of these goals can be envisaged when the zone includes more than one lot and various owners choose between the residential and business uses set out in the zoning table of DPS 2, allowable either as a matter of course or at the discretion of the respondent, and the Tribunal on appeal.
23 In this instance the zone comprises one lot. The previous approval was for a medical centre, which did not include any residential component. The current proposal is for a residential development which does not include a business component that would provide a service in the sense of retail, personal service or office use. There is nothing in the controls for the zone that leads to the conclusion that on a single lot one form of use allowable in the mixed use zone should be preferred over any other form of use allowable, and particularly commercial as contended by Mr Allerding.
24 This Tribunal is of the view that for an individual lot in the mixed use zone it is open to the owner to apply for any of the uses allowable in the zoning table and it is not appropriate to dismiss an application merely because the respondent or neighbours might have wished the owner had chosen a different use from that applied for. The use applied for can then be examined to establish whether there is any other planning reason why the use should not be allowed, particularly in the case of "D" uses, as proposed in this instance.
25 In addition to the use proposed by the applicant, there is also relevant in this matter the use to be made of that section of the car park not necessary for the short-stay accommodation use and the existence of the pedestrian path from the retirement village across the subject land. The applicant has not applied to place any additional development on the
(Page 10)
- approximately one third of the subject land used as car parking but not required for the proposed use. The parking in this area is currently an indistinguishable part of the parking area that extends into Glenelg Place reserve, the community centre site and the shopping centre. The respondent refers to an arrangement that the parking be available to users of all three sites, but there appears to be no formalities associated with this. While the respondent opposes the proposed development, it has asked that should it proceed, there be put in place a condition to regularise the common use of the car parking. The applicant has no objection to this. The parking on the subject land contributes to the objective of the integration of the mixed use site into the neighbouring uses.
26 Mrs Shirley Cook, a resident of the retirement village who was a witness for the respondent, said that should the use be approved against the wishes of the residents of the retirement village, they would want the current arrangement for the use of the pedestrian path to continue. The path was created and conditions set out for its use in an agreement between a previous owner of the subject land and the retirement village strata owners in 1991. This agreement was not registered and the applicant said he was purchaser of the subject land without notice of it. No forensic examination was made at the hearing of whether the strata company of the retirement village had any claim to beneficial interest in the subject land or of the effect on the agreement of the applicant being a purchaser without notice. The applicant did submit, however, that he was prepared to enter into an arrangement for the continued use of the path by the occupants of the retirement village.
27 The use of the path and car park, while offered by the applicant, are not the issues that alone are determinative of this matter. If "residential building – short stay accommodation" is a use that might be allowed in this mixed use zone, it is necessary then to consider the impact the use will have on neighbouring uses, particularly the dwellings in the adjoining retirement village that back onto the subject land.
Impact on the local amenity
28 Under DPS 2, the intent of the zone is to encourage a range of uses on the site which can be undertaken in a manner which is not prejudicial or adverse to the amenity of the area.
29 Mrs Cook, lives in one of four houses in the retirement village that back on to the subject land. Her house, and the others, have a bedroom, living room and private outdoor space facing the subject land. Mrs Cook confirmed that in the seven years she has been resident, only the dentist
(Page 11)
- has operated from the medical centre. It was Mrs Cook's submission that there was no impact on her and she had felt safe when only the dentist was using the building because there was no activity in the 3 metre wide setback between the fence and the medical centre, even though the back door opened into the area.
30 Mrs Cook's concern was that the main entrance to five of the units would be via doors opening into the setback area. People coming and going at all hours would generate noise, they could easily look over the fence and the type of people they would be is not known. These people, in her opinion, are potential intruders. By word of mouth strangers would come to know of the retirement village and the residents would become a target. It was Mrs Cook's opinion that "no one gives respect to elderly people these days".
31 Mrs Cook said she was not convinced the management of the short-stay accommodation would be able to stop her and her neighbours being disturbed by noise or having their security threatened.
32 The respondent also called as a witness Mr David Davies, who lives in the locality. Mr Davies is president of the Connolly Ratepayers Association and said he represented several residents of the retirement village. Mr Davies said the proposed use was "totally inappropriate". He gave as examples of people who used short-stay accommodation golfers away from their wives who drank until late hours and would "yahoo" on the grassed area disturbing the retirees. He also said single mothers who had a problem with their husbands would make use of the accommodation, as could transients. He also surmised that people might scale the fence and skateboard in the retirement village. Mr Davies said when asked that his knowledge came from observing people in short-stay accommodation in Northbridge, from conversations with people who have experienced short-stay accommodation, particularly the police and his knowledge of the way golfers behave at the "19th hole".
Comment
33 To test the impact of the proposed development it is necessary to establish from the evidence: the present state of amenity; the manner in which the proposed use may affect the existing amenity; and, the degree to which the new use will have an impact on that amenity: Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296.
(Page 12)
34 That is, it is necessary to consider whether the proposed development would affect the amenity of the immediate locality to such an extent as to warrant refusal of the application.
35 The existing amenity is no doubt coloured by the medical centre having been empty, but for the dentist, for about seven years. It cannot be a realistic expectation of the neighbours that this state of affairs will continue. There has always been the likelihood that an owner would make an application for development of one of the uses allowed in the mixed use zone.
36 The short-stay accommodation applied for will introduce into the rear set back the movement of people to and from doors opening into that space from the five one bedroom units facing the rear of the site. There will also be noises associated with the occupation of those units. The movement and noise will occur during the day and into the evening.
37 Mrs Cook believes this will adversely affect her current amenity, which she has described as quiet and peaceful and secure. As to security, her evidence is that there are currently no intruders. The submission is that customers of the short-stay accommodation might be potential intruders, but more particularly, those who stay and then leave will tell others of the existence of the retirement village and these people will then travel to the retirement village and become intruders. There is no doubt her anxiety is genuine. The Tribunal is of the view, however, that this fear is of the unknown and there is an absence of concrete evidence that the persons who use short-stay accommodation are more likely than the general population to be disposed to be intruders or are more likely to associate with persons who are potential intruders.
38 Mr Davies' evidence is considered to be excessive in its content and based on assumption and hearsay. This Tribunal is of the view that it needs to be "discounted by the natural human tendency to exaggerate difficulties and problems that are in prospect and are not at present existing", as stated in Foley v Waverley Municipal Council (1962) 8 LGRA 26 at 30.
39 Mr Allerding, in his closing, did not take Mr Davies' evidence further, but he did emphasise the concerns of Mrs Cook about the noise and movement the customers of the short-stay accommodation would introduce, particularly in the evenings. It is necessary to have an objective look at the evidence.
(Page 13)
40 The proposed development does not include any restaurant or bar facilities and the self-catering facilities are limited. There are no outdoor gathering areas provided. The Tribunal is persuaded to the view that noise generated by the occupants of the units is likely to be little more than that generated by the usual movements of persons in a residential suburb, or than that which would be generated by residents of grouped dwellings which is a discretionary use in this zone.
41 The applicant has submitted that management practices will be put in place to ensure reasonable behaviour by users of the short-stay accommodation. The dismissal of this undertaking, especially by Mr Davies, is considered to be essentially pessimistic. The applicant's undertakings to be a good neighbour should not be summarily dismissed.
Conclusion
42 This matter must be considered in realistic acceptance that the existing building is not going to remain vacant and some development is going to occur. For the reasons set out above, the Tribunal is of the view that the proposed use of the existing building is not inconsistent with the objectives of the mixed use zone.
43 In assessing the impact of the proposed development on the existing and likely future amenity of the locality the validly held concerns of objectors are a relevant consideration. The fears expressed must, however, be considered as perceived rather than actual and be tested on likelihood of eventuating having regard to the evidence. From examination of the matter, as set out above, the Tribunal has concluded that the likely impact of the proposed use on the amenity of the locality is not such as to warrant refusal of the application.
44 The Tribunal has therefore decided that the application can be allowed and conditional approval be granted. As ordered by the Tribunal, the respondent provided, without prejudice to its position, a set of draft conditions it would want imposed should the Tribunal be moved to support the application. The parties discussed the draft conditions and the one on which they disagreed was the requirement for a masonry wall, to a height determined by the respondent, to be built along the eastern boundary. The applicant argued that the existing timberlap fence was a sufficient barrier. The respondent said a masonry wall is necessary for protection against noise and for visual privacy of residents in the retirement village.
(Page 14)
45 The Tribunal has formed the view that a solid fence, not less than 1.8 metres high, plus the landscaping will provide an appropriate barrier. The existing fence appears acceptable, but the height and absence of gaps can be confirmed by the parties.
Orders
1. The application for review be allowed.
2. Approval be granted for the development of Residential – short-stay accommodation on lot 407 Glenelg Place, Connolly as applied for, subject to compliance with the following conditions:
(a) A pedestrian easement to be registered on the certificate of title being lot 407 (3) Glenelg Place, Connolly. The easement is for the benefit of the residents of the Fairway Retirement Village, so that they can cross the site to the commercial and community facilities on the adjoining lots;
(b) The existing gate within the dividing fence at the north-east corner of the site to remain open and accessible to the residents of the Fairway Retirement Village lot 408 (192) Fairway Circle, Connolly, but to have restricted access between lot 407 and lot 408 to all other parties;
(c) A visually impermeable fence not less than 1.8 metres in height shall be provided along the portion of the development site that abuts the common boundary with lot 408 (192) Fairway Circle, Connolly;
(d) The landscaping shown red on the plan titled "Rear Landscaping" and date stamped 8 December 2005 in the area between the access pathway to proposed units B, D, F, K, & J and the eastern and the southern boundary shall be developed and maintained as a dense landscaping buffer. Details of the proposed landscaping treatment shall be provided for approval by the Manager, Approvals, Planning and Environmental Services;
(e) Security or flood lighting shall not be provided on the site that:
(i) causes a level of illumination greater than 1 lux to spill into adjacent land by more than 1 metre or onto any vertical or horizontal surface of a building thereon;
(Page 15)
- (ii) has the main beam angle of any floodlight or security light installed higher than 3 metres above natural ground level and positioned at a maximum angle of 70 degrees from the vertical plane;
- (f) A landscaping plan to be provided prior to the lodgement of a building licence and approved to the satisfaction of the Manager Approvals, Planning and Environmental Services. Landscaping plan to include upgrade of existing landscaping on site and remedial works in relation to reconfiguration of the parking area;
(g) A reciprocal parking and access easement for the parking bays west of the walled parking area and shown red on the plan titled "Reciprocal Parking" and date stamped 8 December 2005, to be registered on the certificate of title between the subject site and the adjoining Community Centre, lot 404 Glenelg Place, Connolly. The parking and access easement is to ensure the orderly movement of vehicle traffic between lots407 and 404 Glenelg Place;
(h) In relation to the proposed reconfiguration of the parking area, all remedial works required on the adjoining parking area of lot 404 to be at the expense of the applicant;
(i) The parking bays, driveways and points of ingress and egress to be designed in accordance with the Australian Standard for Offstreet Carparking (AS2890). Such areas are to be constructed, drained and, marked and thereafter maintained, to the satisfaction of the Manager Approvals, Planning & Environmental Services prior to the development first being occupied. These works to be done as part of the building programme;
(j) Provision must be made for disabled access and facilities in accordance with the Australian Standards for Design for Access and Mobility (AS 1428.1);
(k) The units are to be used for short-stay accommodation and not for human habitation on a permanent basis;
(l) The maximum length of stay for each lodger is three months in a 12-month period;
(m) The short-stay accommodation to be managed to the satisfaction of the Manager Approvals, Planning and Environmental Services. Details of the proposed management of the units is to be submitted for approval by
(Page 16)
- the Manager Approvals, Planning and Environmental Services. Approval of the management plan shall not be unreasonably withheld. Any changes to the approved method of management shall include:
(i) a register of lodgers showing the name and address of every lodger staying within the units and the unit occupied;
(ii) the register is to be signed by the lodger;
(iii) their date of arrival and departure;
(iv) the register is to be kept on the premises of the serviced apartments or at such other place as agreed to by Council and shall be open to inspection on demand by an authorised Council officer;
(v) if the management of the service apartments agreed to by the Council involves an on-site manager, then only one unit can be allocated to the on-site manager for permanent occupation.
- (n) No equipment of facilities other than the clothes-line shall be located in the setback between lot 407 and lot 408.
- 3. Should the application require minor modifications to comply with the conditions of approval, revised plans are requested to be submitted to the City of Joondalup and approved by the Manager Approvals, Planning and Environmental Services.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
3