Kellett and Town Of Vincent - [2007] WASAT 62

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: KELLETT and TOWN OF VINCENT [2007] WASAT 62

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: 7 DECEMBER 2006

DELIVERED : 9 MARCH 2007

FILE NO/S: DR 283 of 2006

BETWEEN: MR D KELLETT
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Town planning - Development application - Amenity - Orderly and proper planning - Precedent - Cumulative impact of the changes - Potential for conflict with nearby residents - Use not permitted unless Council has exercised its discretion - Discouraging expansion of commercial activity outside identified centres - Adequacy of car parking bays

Legislation:

Metropolitan Region Scheme
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i)
Town of Vincent Town Planning Scheme No 1, cl 10(2), cl 13(2)(e), cl 37(1), cl 37(3), cl 38(2)(b), cl (38)(5), Sch 1

Result:

The decision under review is set aside

Category: B

Representation:

Counsel:

Applicant: Mr SJ Bain (Acting as Agent)
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicant: SJB Planning and Urban Design
Respondent: Property Planning and Appeals Consultants

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

Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a decision of the Town of Vincent to refuse a planning application for the partial demolition of, and alterations and additions to, an existing beauty salon at the corner of Charles Street and Mabel Street, North Perth. The Tribunal had regard to the respective arguments of the parties, the existing legislative and policy provisions and matters relating to amenity, orderly and proper planning and precedent. It concluded that the weight of argument was with the applicant, and the decision under review was set aside.

Introduction

The application for review, dated 23 August 2006, was lodged by Mr Simon J Bain of SJB Town Planning and Urban Design on behalf of Mr D Kellett (applicant) against a decision of the Town of Vincent (respondent) on 11 July 2006 to refuse a planning application dated 29 February 2006 for the partial demolition of, and alterations and additions to, an existing shop (beauty salon). The letter of refusal was dated 1 August 2006.
The refusal to commence development was based on the following reasons:
"1The development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;
2The increased intensity of the use will have a negative impact on the amenity of the surrounding area; and
3In consideration of the objections received in relation to the proposed development and the complaints received with respect to the existing shop (beauty salon)."
On the application heard before Member Marie Connor on 13 September 2006 it was ordered that the respondent was to consider additional information and justification provided by the applicant at its Ordinary Meeting of 10 October 2006.
At that meeting the respondent reiterated its previous reasons for refusal of 11 July 2006 and relayed that information to the Tribunal on 18 October 2006.

Subject land

The subject land comprises Lot 300 and Pt Lot 116 at No 396 Charles Street, North Perth. It is located on the corner with Mabel Street (south side) and has a combined lot area of 507 square metres.
The current business is known as "North Perth Beauty" and comprises a total floor area of 195 square metres. There is a "shop" component of 181 square metres and a 14 square metre "office" component.
The immediate locality is comprised of predominantly single residences which were built in the early to mid 20th Century. Newer single and grouped residential developments are interspersed throughout the general locality.

Legislative framework

The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "Residential R 60" under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
The Town of Vincent Planning and Building Policy Manual contains a number of policies relevant to the matter. These include a North Perth Precinct Policy (Policy 3.1.8), a Charles Locality Policy (Policy 3.3.16) and a Parking and Access Policy (Policy 3.7.1).

Respondent's position

The respondent's position is outlined in an amended Statement of Issues, Facts and Contentions dated 28 November 2006. The statement replaced an earlier document dated 7 November 2006 which included reference to a "non‑conforming" use right. This right has been reassessed and, from the perspective of the respondent, does not exist on the site.
The amended statement broadly argues:
(a)The individual details and changes proposed in the application should not be assessed at a technical level in their own right as would otherwise occur as part of an application on appropriately zoned land, but rather, that the cumulative impact of the changes should be carefully considered.
(b)The applicant has not demonstrated that the application is to merely improve the existing configuration of the subject premises. It is proposed that the blueprint of the main building be increased in area and it should not be argued that this is offset by the removal of the outbuilding, which at best could only be used for storage purposes. The plans show a new office and new treatment room.
(c)The subject premises are located on a 507 square metre site consistent with the residential lot sizes in the locality. The close proximity of the subject premises to adjoining residential properties increases the potential for conflict as a result of even minor changes to the efficiency of the non‑residential use in terms of increased vehicular movements, parking requirements and noise.
(d)Approval of the application would create an undesirable precedent for further incremental changes to the subject premises that further consolidates its non‑residential function. This would be contrary to the residential zoning of the land and the residential amenity of the locality.

Applicant's position

The Applicant's position is outlined in the Statement of Issues, Facts and Contentions dated 13 November 2006. It broadly argues:
(a)The proposal is entirely consistent with the relevant provisions of TPS 1 and, as such, is not capable of being refused.
(b)The proposal does not affect or impact the amenity of the area as the development exists. The alterations and additions will improve amenity.
(c)The development is consistent with orderly and proper planning in that it already exists.
(d)The objections and complaints are not relevant to the proposal and, as they were not included in the s 24 Bundle, cannot be relied upon by the respondent.

Planning issues

The principal planning issues are:
(a)Will the proposed alterations and additions adversely impact the residential amenity of the locality?
(b)Would an approval be contrary to the interests of orderly and proper planning?
(c)Would an approval create an undesirable precedent for further incremental changes on the subject land?

Assessment of proposal

Background

On 14 September 2004 the respondent resolved to conditionally approve a proposed change of use from shop, office and showroom to shop (beauty salon) and associated signage. The application was for retrospective approval.
An application, similar to that currently before the Tribunal, was refused by the Council on 13 September 2005. The reasons for refusal included concerns regarding the intensification of the use of the site, the inability to access some car parking without driving over the footpath and a perceived loss of amenity for surrounding residents.
The current application was lodged with the respondent on 2 March 2006 and included modifications to the earlier proposal. These included minor internal layout changes, changes to the car parking arrangements and the addition of a fence and gate off Charles Street to create an enclosed courtyard area.
The application was refused on 11 July 2006 and, following the order from the Tribunal on 13 September 2006 for the respondent to consider additional information and justification, the Council reiterated its previous reasons for refusal at its Ordinary Meeting of 10 October 2006.

Proposed development

The proposed development, as outlined in plans prepared by Oliver Lindsell Design and lodged with the planning application, include the demolition of an existing 22 square metre shed/outbuilding, the addition of a new office of 11 square metres, the addition of a new treatment room of 11 square metres and an enclosed courtyard. Modifications to the existing roof would also be required to allow the additional 22 square metre extension to the eastern side of the building, and existing car parking at the rear would need to be reconfigured.
The overall effect of the proposed additions would increase the number of treatment rooms from nine to ten and provide for a new office. As explained by Mr Simon J Bain, a qualified town planner, for the applicant the additions would:
"alleviate the shortage of utility space which has resulted in treatment rooms being used for storage – currently two treatment rooms are regularly functioning as store/staff areas instead of treatment rooms."
Based on a future 3.66 metre road widening of Charles Street to the east, as shown on the submitted plans, the existing reception area at the front of the building, together with treatment rooms 1, 2 and 3 and the proposed enclosed courtyard, could be affected. However, there is no information on the documents before the Tribunal as to when such widening is contemplated.

Legislative and policy provisions

The current use of the subject land is defined as a "shop" and Sch 1 of TPS 1 states:
" 'shop' means any building wherein goods are exposed or offered for sale by retail."
A "shop" is considered to be an "SA" use in the 'residential' zone as listed in the Zone Table of TPS 1. An "SA" use is described in cl 13(2)(e) as:
" 'SA' means that the use is not permitted unless the Council has exercised its discretion and has granted planning approval after giving special notice in accordance with Clause 37."
Under the Advertising Procedures of cl 37(1) Council is required to:
"Where an application involves an unlisted use or a use which is designated with the symbol 'SA' in the cross reference to that zone, the Council is to direct the applicant to advertise the application in any manner that it considers to be appropriate."
Under cl 38(2)(b) Council:
"is to have regard to any written submissions lodged … under Clause 37(3)."
When determining an application under cl 38(5) Council is, without limiting the scope of its discretion to have regard to:
"(b)any relevant planning policy;
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Under cl 10(2) it states:
" … The Precinct Planning Policies are contained in the Council's Policy Manual".
This document, titled Town of Vincent Planning and Building Policy Manual (the Manual) contains policies which set down the desired future character of the various localities. Amongst these is the Charles Locality Policy (Policy 3.3.16) which states:
"Along Charles Street there are a number of non‑residential uses which have been in existence for many years. They are typical of the traditional character of development found on major roads.
Whilst these uses will remain non‑conforming, their continued presence is generally accepted where they do not unduly intrude on the amenity of their neighbours. These uses must remain at their existing scale and intensity. They will not be permitted to expand beyond their existing site."
Under the Manual the policy relating to parking and access is Policy 3.7.1. It includes a Land Use Requirements Table which specifies the number of car parking spaces for each land use activity.
The matter is also covered by the Town of Vincent's Economic Development Strategy (the Strategy) which was formally adopted by Council on 9 August 2005. The Strategy states, inter alia:
"The Town is well‑serviced by commercial nodes in that it has five significant centres, Leederville, Mount Hawthorn, North Perth, William Street and Beaufort Street (Mt Lawley), as well as three lesser centres in London Street, Charles Street and Newcastle Street. With such well distributed development, there is no requirement to add new commercial precincts or nodes, with all Vincent residents living within one kilometre of a commercial centre."
As argued by Mr Ian Roxburghe Ker, a Councillor for the South Ward of the Town of Vincent and qualified transport planner, in his witness statement of 24 November 2006 in relation to the Strategy:
"This has added weight to Council's approach of discouraging expansion of commercial activity outside identified centres. This approach is consistent with the approach adopted in Network City at a metropolitan‑wide level."
In relation to these matters it is clear that the respondent has used its discretion to refuse the proposed development and, according to the evidence of Mr Ker, had three public submissions before it; one of which was supportive and two opposed but without providing reasons. There is, however, no documentary evidence before the Tribunal on these submissions, nor in fact a further submission lodged with Council at its meeting of 21 November 2006. Accordingly, no weight is given to these submissions.
In relation to the Manual, it is true that if the proposed development was to proceed the use would not remain at its existing scale, but would expand by a relatively minor amount. However, with the demolition of the existing shed/outbuilding there would, in effect, be no overall increase in building area on the subject land.
In relation to the Strategy, the existing development appears to have evolved over time from an original residence and corner shop, and its minor expansion is not a new commercial development or node. It is, however, outside the identified commercial centres (both major and minor) within the Town of Vincent.

The matter of car parking

This matter was addressed by Mr Joe Algeri, a qualified town planner, for the respondent in his witness statement of 28 November 2006. He advises:
(a)There are four paved and marked on‑site car bays.
(b)There are eight paved and marked bays on the Mabel Street verge (south side) immediately adjacent to the subject land; including two bicycle parking rails.
(c)The subject application shows five on‑site car bays but, if the application was to proceed, car bay No 5 would need to be widened to 2.7 metres to allow adequate manoeuvring. Also, the proposed crossover would need to be relocated approximately 1.2 metres to the east to allow adequate access to and from the on‑site parking area. This would reduce the verge parking bays from eight to seven.
In the report to Council of 11 July 2006 the number of car parking bays required for the development was assessed as thirteen. However, as the subject land is within 400 metres of a bus stop, an adjustment factor of 0.85 was applied. This reduced the requirement to 11.05 car bays.
When the five on‑site bays are taken into account, and relevant adjustment factors made, a further 6.2 bays are required. This shortfall is met from the seven verge parking bays.
In the view of the Tribunal, it is clear that the on‑site parking bays are unable to meet the land use parking requirements specified in Policy No 3.7.1. However, it is also clear from attachment JA 3 (an email from the Manager, Ranger Services, to Mr Algeri dated 27 November 2006) to Mr Algeri's witness statement, that the eight verge parking bays were provided as a result of earlier complaints from residents of on‑street parking problems resulting from clients visiting the subject land.
What appears to have happened is that, due to the complaints, the Council have created the eight verge parking bays, and are now taking that number into account as part of the calculation for parking demand from the land use on the subject land.
As explained in the witness statement of Mr Algeri:
"34.It is my professional view that the Respondent's parking requirements are inadequate for a business located in a residential area. I believe that the Respondent has been overly generous in allowing the concession on the basis of the adjacent on‑street verge parking …"
The Tribunal agrees with the second sentence of this statement.

The matter of amenity

In Sch 1 (Scheme Interpretations) to TPS 1 the term "amenity" is described:
" 'amenity' means all those factors which combine to form the character of the area to residents and passers by and shall include the present and likely future amenity."
In Cipriano v City of Perth (Unreported, Appeal No 20 of 1979) amenity is described as:
"the sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and land uses."
The difficulty the Tribunal has in this matter is that there is little information before it to judge the view of nearby residents on both the on‑site and off‑site amenity resulting from the activities of the beauty salon.
What is clear is that from photographic evidence before the Tribunal, the proposed extension and alterations would lead to the demolition of the less than attractive shed/outbuilding, and the replacement of some of the deteriorating roofing.
On the matter of on‑street parking leading to a deterioration of amenity for nearby residents the email from the Manager, Ranger Services to Mr Algeri is helpful to a degree:
"Since 1 January 2006 there have been five infringement notices issued to vehicles that were parked on the footpath, outside, or very close to, 396 Charles Street and, while the Ranger could not specifically say that the drivers were in the hair salon, there is little else in the vicinity that would encourage people to park illegally."
The email also states:
" … based on a very quick search I am not aware of any complaints that have been received by the Town in the past year or so, although Rangers continue to patrol the area at irregular intervals."
In the view of the Tribunal there is no evidence before it that could substantiate an argument that there is a significant reaction from nearby residents against the existing or proposed development on amenity grounds, or that the proposed development will have a negative impact on the surrounding residential area.

Orderly and proper planning

As already explained in [23] above, a "shop" is an "SA" use in a "residential" zone and it was open to the respondent (and now the Tribunal) to exercise its discretion to approve or refuse the proposed development. The respondent chose a refusal.
In the witness statement of Mr Algeri, the history of parking problems associated with the subject land is linked directly with orderly and proper planning, whereas Mr Bain contends that:
"The development is consistent with orderly and proper planning because it already exists …"
An associated matter raised by the respondent through Councillor Ker is:
"16.In physical terms, the application would add 11 square metres of office and one treatment room of 11 square metres. In practical terms, according to information provided by the applicant (and considered by Council on 10 October 2006), the alterations and additions would also allow two other rooms, currently used as store/staff areas, to revert to their approved use as treatment rooms."

The point here is that the respondent appears to be arguing that an approval would in fact open up not one treatment room of 11 square metres, but a total of three treatment rooms with all the flow‑on effects of increased patronage and associated parking demand.
Although this point is factually correct, the two existing treatment rooms that are otherwise used have already been approved, and the Tribunal need only be satisfied that the proposed additions of one treatment room and one office are, or are not, consistent with orderly and proper planning.

The matter of precedent

The position of the respondent in this matter is not so much in the context of an approval setting an undesirable precedent for other similar type situations in the Town of Vincent, but that an approval would create a circumstance for further incremental change on the subject land.
From the point of view of the Tribunal this matter is covered in the draft set of "without prejudice" conditions of approval forwarded to it on 24 November 2006. These conditions require that any future increase in floor space, or change of use, would require planning approval from the Town.

Conclusions

The application for review was lodged against a decision of the Town of Vincent to refuse a planning application for the partial demolition of, and alterations and additions to, an existing beauty salon.
The refusal was largely based on amenity grounds and a belief that the proposal was not consistent with orderly and proper planning. There was also a view, based on further information before the Tribunal, that an approval would set an undesirable precedent for further on‑going development on the subject land and further consolidate a non‑residential function in a residential zone.
In undertaking this review, the Tribunal has had regard to the arguments of the parties, the existing legislative and policy provisions and matters of car parking, amenity and precedent.
What the Tribunal had before it was a proposal to demolish an existing shed/outbuilding of 22 square metres and to reconfigure the existing rear car park. Also, to add a new treatment room of 11 square metres, a new office of 11 square metres, an extension to the existing roof, some internal modifications and a new external courtyard towards the Charles Street frontage.
In making its decision the respondent was required to deal with the proposal as an extension to an existing shop which is an "SA" use in a "residential" zone. This meant that the use was not permitted unless the Council (and now this Tribunal) exercised its discretion to allow, or refuse, the proposal.
The respondent was also required to have regard to its policy framework where isolated commercial activities, such as that under review, should remain at their existing scale. Also, there was a strong emphasis on supporting existing large and small commercial nodes and discouraging new commercial activity outside of those nodes.
However, in the view of the Tribunal, what is proposed is not a new commercial node, as the use already exists, and the scale of the expansion is minor. In fact, with the demolition of the shed/outbuilding, there will be no overall increase in building area.
On the matter of car parking, it is clear that although an additional car bay will be provided on‑site, that a total of five bays would be insufficient to cater for the parking demand generated by the use, and that number (five) would not accord with the eleven bays required by TPS 1.
However, the matter has been alleviated by the provision of eight verge parking bays immediately adjacent to the subject land, and apparently provided by Council in response to complaints from residents of vehicles associated with the beauty salon parking on verges and obstructing driveways.
The respondent is now taking these bays into account in its calculations and has concluded that the overall number of bays is sufficient to cater for both the existing and proposed expansion of the use.
In the view of the Tribunal, the respondent has been overly generous in its car parking calculations, but the Tribunal is not about to dismiss the presence of the verge bays in its overall assessment of this matter.
The principal reason for this is that the provision of sufficient car parking bays is directly linked to the amenity of residents in this case, and there is no specific evidence before the Tribunal of a significant number of on‑going complaints as a result of limited car parking bays.
As the arguments of the respondent against the proposal are largely on amenity grounds (increased vehicular movements, parking and noise), the Tribunal is unable to conclude on the information before it that the proposed development will have a detrimental impact on surrounding properties.
On the question of orderly and proper planning, the respondent has concluded that although in a strict "technical" sense the proposal is compliant with the regulatory framework, that the additions and renovations will not only provide for one new treatment room, but will open up the prospect of two treatment rooms that are currently being used for storage, etc. But this is a fallacious argument as these two treatment rooms have already been approved, and the Tribunal is again unable to conclude that such a minor extension to the existing use would be contrary to orderly and proper planning.
On the matter of precedent, as argued by the respondent, it appears that the concern is not so much an approval creating an undesirable precedent for other similar type situations in the Town, but rather that an approval could lead to further applications for incremental change and consolidation of the non‑residential use on the subject land. However, the Tribunal is satisfied that any future proposal would need to be justified on its merits at the time, and the only application before it is that the subject of this review.
In the view of the Tribunal the weight of argument falls with the applicant, but any approval must be subject to the following conditions:
"(a)prior to the issue of a Building Licence, revised plans shall be submitted and approved demonstrating car bay 5 being increased to a minimum of 2.7 metres in width. All car parking bays shall be dimensioned on the Building Licence application working drawings and shall comply with the minimum specifications and dimensions specified in the Town's Policy relating to Parking and Access and Australian Standards AS2890.1 – 'Off Street Parking'. The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies;
(b)any new signage that does not comply with the Town's Policy relating to Signs and Advertising shall be subject to a separate planning application, and all signage shall be subject to a Sign Licence application, being submitted and approved prior to the erection of the signage;
(c)the floor areas shall be limited to a maximum of:
(1)192 square metres of gross floor area for the shop component; and
(2)26 square metres of gross floor area for the office component;
Any increase in floor space or change of use for the subject land shall require Planning Approval to be applied to and obtained from the Town;
(d)doors, windows and adjacent floor areas fronting Charles and Mabel Streets shall maintain an active and interactive relationship with these streets;
(e)the car parking area(s) on the subject land shall be sealed, drained, paved and line marked in accordance with the approved plans prior to the first occupation of the development and maintained thereafter by the owner(s)/occupier(s) to the satisfaction of the Town;
(f)prior to the first occupation of the proposed additional floor space, the proposed modifications on the Mabel Street verge, including the proposed crossover are to be constructed to the satisfaction of the Town's Technical Services Division with all costs associated with the work within the Mabel Street road reserve adjacent to the subject site being borne by owners/applicant;
(g)all external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
(h)prior to the issue of a Building Licence for the proposed fence adjacent to Charles Street, revised plans shall be submitted and approved demonstrating any new street/front wall, fence and gate between the Charles Street boundary and the main building, including along the side boundaries within this front setback area, complying with the following:
(1)the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(2)decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;
(3)the maximum width, depth and diameter of posts and piers being 350 millimetres;
(4)the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50 per cent transparency;
(5)the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level; and
(6)the solid portion adjacent to the Charles Street boundary from the above truncation(s) can increase to a maximum height of 1.8 metres, provided that the fence and gate have at least two (2) significant appropriate design features to reduce the visual impact. Examples of design features may include significant open structures, recesses and/or planters facing the street at regular intervals, and varying materials; and the incorporation of varying materials, finishes and/or colours are considered to be one (1) design feature. Details of these design features shall be submitted to and approved by the Town prior to the issue of a Building Licence.
The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes and the Town's Policies; and
(i)the hours of operation shall be limited to the following times:
9.00am to 5.30pm on Monday, Wednesday and Friday;
9.00am to 7.30pm on Tuesday;
8.00am to 3.00pm on Saturday; and
Closed on Sundays and Public Holidays."

Orders

For the foregoing reasons, and in accordance with s 29(3)(c)(i) of the State Administrative Tribunal Act 2005 (WA), the orders of the Tribunal are:
1The decision under review is set aside.
2.That the matter is determined in accordance with conditions (a) to (i) outlined in [71] above.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER