Kingsway Ministries Inc and City of Armadale

Case •

[2007] WASAT 112

•

16 MAY 2007

No judgment structure available for this case.

KINGSWAY MINISTRIES INC and CITY OF ARMADALE [2007] WASAT 112



STATE ADMINISTRATIVE TRIBUNALCitation No:[2007] WASAT 112
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:282/200615 FEBRUARY 2007
Coram:MR L GRAHAM (SENIOR SESSIONAL MEMBER)16/05/07
25Judgment Part:1 of 1
Result: The application for review is upheld
B
PDF Version
Parties:KINGSWAY MINISTRIES INC
CITY OF ARMADALE

Catchwords:
Town Planning
Application for development approval
Deemed refusal
Embayment proposal
Mobile garbage bins
Alternative design proposal
School peak times
Aged persons' dwellings
Safety to pedestrians and traffic
Proper traffic management

Legislation:
City of Armadale Town Planning Scheme No 4, cl 5.2.4, cl 9.4, cl 10.9.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), Design Element 3.10.3 (A 3.2)
State Administrative Tribunal Act 2004 (WA), s 29(3)

Case References:
Nil

Orders
The application for review is upheld in accordance with the following conditions:,1. Submission of a waste management plan to the satisfaction of the City of Armadale.,2. The preparation of a traffic management plan (to include an appropriately located and marked "embayment" in Lowanna Way) that provides for the safe and efficient collection of waste to the satisfaction of the City of Armadale.  This plan should highlight the necessary measures that will need to be implemented on each collection day to ensure the safety of all road users and pedestrians.,3. A schedule of external colours and materials is to be submitted to and approved by the City of Armadale.  Alternative colour tones and materials are to be used for each dwelling to demonstrate a high standard of visual amenity and attractive streetscape.  The development is to be completed and maintained in accordance with the approved schedule to the satisfaction of the City of Armadale.,4. Submission and implementation of a stormwater management plan in accordance with water-sensitive design principles to the satisfaction of the City of Armadale.,5. With the exception of fencing within the front setback area, internal fencing and other property boundary fencing is to be 1.8 metres high measured from the new ground level/top of retaining walls and constructed to a minimum standard of masonry, "Colorbond" or fibro cement painted in a colour to complement the proposed development to the satisfaction of the City of Armadale.,6. Submission of a comprehensive landscape plan (including the verge) to the satisfaction of the City of Armadale.  Such plan is to include plant species (predominantly West Australian natives), numbers, location, container size and method of irrigation of the landscaped areas.  The landscape plan is to be approved and all landscaping installed and maintained to the satisfaction of the City of Armadale.,7. Crossovers, driveway, car parking and vehicle manoeuvring spaces shall be constructed, drained, sealed, kerbed, marked and continuously maintained in accordance with the approved site plan to the satisfaction of the City of Armadale.,8. Driveways to be brick paved to the specifications and satisfaction of the City of Armadale.,9. Owner of the land entering into a legal agreement or satisfactory alternative with Council which shall bind the owner and his heirs and successors in title, requiring that at least one permanent occupant of the dwelling is a disabled or physically dependent person or aged over 55, or is the surviving spouse of such a person.,10. A cash-in-lieu payment for footpath construction being paid to the City of Armadale at the rate of 5.0 metres of footpath per unit.,11. All conditions are to be complied with prior to exercising the right of this approval to the satisfaction of the City of Armadale.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KINGSWAY MINISTRIES INC and CITY OF ARMADALE [2007] WASAT 112 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 15 FEBRUARY 2007 DELIVERED : 16 MAY 2007 FILE NO/S : DR 282 of 2006 BETWEEN : KINGSWAY MINISTRIES INC
    Applicant

    AND

    CITY OF ARMADALE
    Respondent

Catchwords:

Town Planning - Application for development approval - Deemed refusal - Embayment proposal - Mobile garbage bins - Alternative design proposal - School peak times - Aged persons' dwellings - Safety to pedestrians and traffic - Proper traffic management

Legislation:

City of Armadale Town Planning Scheme No 4, cl 5.2.4, cl 9.4, cl 10.9.1


Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

(Page 2)

Residential Design Codes of Western Australia (2002), Design Element 3.10.3 (A 3.2)
State Administrative Tribunal Act 2004 (WA), s 29(3)

Result:

The application for review is upheld

Category: B


Representation:

Counsel:


    Applicant : Mr M Hardy
    Respondent : Mr E Samec

Solicitors:

    Applicant : Hardy Bowen
    Respondent : Kott Gunning



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

Nil

(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The application for review was lodged against a "deemed refusal" by the Town of Armadale for the development of 12 Aged Persons’ Dwellings in Lowanna Way, Armadale.

2 The Tribunal examined the arguments of the parties, the background to the proposal, legislative and policy provisions, the existing traffic management problems and rubbish bin collection process, an "embayment" proposal as a traffic management measure, an alternative design proposal for the subject land and a range of other relevant matters.

3 It was determined that the prime planning considerations in the rubbish bin collection process were safety to pedestrians and motorists and proper traffic management. It was also determined that an "embayment" between the two proposed driveways of the development would be a positive move to address these considerations.

4 The Tribunal did not believe that the on-site collection of rubbish bins was justified; particularly when the arrival of rubbish trucks could be orchestrated outside of school peak times and traffic management measures could be implemented to reduce safety risk.

5 The application for review was upheld, subject to conditions.




Introduction

6 The application for review, dated 17 August 2006, was lodged by Greg Rowe and Associates on behalf of Kingsway Ministries Inc (applicant) against a "deemed refusal" by the Town of Armadale (respondent) of a development application for twelve Aged Persons’ Dwellings at No 3 Lowanna Way, Armadale.

7 The application was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).

8 The Grounds of Review were included as Annexure "A" to the application:


    "1. On 24 May 2006 a Development Application was lodged with the Respondent for twelve (12) Aged Persons Dwellings at Lot 34 (No 3) Lowanna Way, Armadale.

(Page 4)
    2. The Application was not the subject of a notice under Clause 9.4 of the Respondent's Town Planning Scheme No 4 ('TPS 4').

    3. Under Clause 10.9.1 of TPS 4, an application for planning approval shall be deemed to have been refused where a decision in respect of that application is not conveyed to the applicant by the City within 60 days of receipt of it by the City.

    4. The Respondent has failed to convey a decision to the Applicant.

    5. In accordance with Clause 10.9.1 of TPS 4, the application was deemed to have been refused by the Respondent on 22 July 2006."





Subject land

9 The subject land is best described as Lot 34 (No 3) on Certificate of Title Volume 1500, Folio 994, and is found on Diagram 54106.

10 The land is located on the south-west corner of Lowanna Way and Braemore Street with the Lowanna Way frontage directly opposite the Challis Primary School. It has an area of 2900 square metres with a frontage of approximately 62 metres to Lowanna Way and 36 metres to Braemore Street.

11 There is an existing single-storey dwelling on the land which would be demolished if the development was to proceed.

12 Both Lowanna Way and Braemore Street are classified as Local Distributor Roads in the Metropolitan Functional Road Hierarchy published by Main Roads WA in 1997.




Legislative framework

13 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential R 15/25" under the provisions of the City of Armadale Town Planning Scheme No 4 (TPS 4).

14 Of relevance are the Residential Design Codes of Western Australia (2002) (Codes) and the respondent's Local Planning Policy – Residential Density Development (PLN 3.1).

(Page 5)



Respondent's position

    The position of the respondent is outlined in its Statement of Issues, Facts and Contentions dated 5 January 2007. The statement argues:

    (a) The proposed verge collection of 24 rubbish bins (2 per dwelling) does not provide for the safe and convenient collection of rubbish bins by the City's waste disposal vehicles.

    (b) The proposed verge collection of 24 rubbish bins does not comply with the City's Residential Development Policy PLN 3.1, and hence does not justify the exercise of discretion under cl 5.2.4 of TPS 4 to allow development at the higher R25 density.

    (c) In the interests of safety the collection of rubbish bins should be designed on-site in order to allow the waste disposal vehicles to enter and exit the site in forward motion.

    (d) The traffic in Lowanna Way and Braemore Street is expected to increase over time; thereby exacerbating safety concerns.

    (e) Rubbish bin collection can be achieved on-site by way of a re-design and without loss to the number of dwellings.

    (f) The proposed street verge collection of rubbish is contrary to the amenity and orderly and proper planning of the locality. If approved, the development would create an undesirable precedent leading to other "grouped" and "aged persons" dwelling developments without safe and convenient bin collection on site.





Applicant's position

15 The position of the applicant is outlined in its Statement of Issues, Facts and Contentions dated 8 January 2007. The statement contends:


    (a) The proposed location of rubbish bins on the street verge is adequate to facilitate the easy collection of rubbish from the subject land, and without jeopardising the safety
(Page 6)
    of pedestrians on footpaths or users of the road system in accordance with Policy PLN 3.1.
    (b) The proposed location of rubbish bin collection pads on the street verge complies with the objectives and locational criteria within Policy PLN 3.1.

    (c) The construction of "embayments" on Lowanna Way and Braemore Street, and increasing the setback of the bin pads from a minimum of 0.80 metres behind the kerb would further enhance:


      (i) the safe and convenient collection of rubbish bins; and

      (ii) the safety of pedestrians on footpaths or users of the road system.


    (d) The proposed development complies with policy objectives (a) and (d) of Policy PLN 3.1, and as such justifies the exercise of discretion under cl 5.2.4 of TPS 4.

    (e) The applicant does not agree that rubbish bin collection should be designed on-site to allow the City's waste disposal vehicles to enter and exit the site in forward motion.

    (f) No credible evidence has been provided to substantiate the claim of a future increase in traffic on Lowanna Way and Braemore Street. Any increase in traffic is likely to be minimal, and will not exacerbate safety concerns.

    (g) The collection of rubbish bins from the street verge would not be contrary to amenity or orderly and proper planning of the locality, or set an undesirable precedent as each application should be assessed on its planning merits.





Planning issues

16 The principal planning issues are:


    (a) Would collection of rubbish bins from the street verge, as a result of the proposed development, be likely to
(Page 7)
    increase or decrease the safety risk to both pedestrians and/or motorists?
    (b) Would the provision of "embayments" in both Lowanna Way and Braemore Street be likely to increase or decrease the safety risk to both pedestrians and/or motorists?

    (c) Would a redesign of the proposed subdivision to require the on-site collection of rubbish bins be justified in the circumstances of this case?





Assessment of proposal


Background and proposed development

17 An application for development approval was lodged with the City of Armadale on 24 May 2006 for aged (over 55 years) or dependant persons' dwellings.

18 The application proposed the development of 12 dwellings in two separate clusters of six dwellings each. Each cluster of six dwellings would have a dedicated accessway; thereby leading to two separate accessways onto Lowanna Way. There would be three separate rubbish bin collection points in Lowanna Way, and one rubbish bin collection point in Braemore Street.

19 Each of the proposed dwellings would be single-storey and would essentially comprise three bedrooms, a kitchen, living/dining room and bathroom. Depending on its overall size, a dwelling would include either a double garage with store room or a carport and car bay with separate store room. There would be an external courtyard, alfresco area and drying area provided for each dwelling.

20 Based on the witness statement dated 1 February 2007 of Mr GA Hajigabriel, a qualified town planner for the applicant, the following background events took place:


    (a) Prior to the end of the respondent's statutory period (60 days) to determine the application, the applicant's architectural designer was contacted by Mr Bob Sutton, the Co-ordinator of Waste Services at the City, regarding some concerns with the proposed method of rubbish collection.

(Page 8)
    (b) On 1 September 2006, a meeting was held between Ms Claire Richards of Greg Rowe and Associates and Mr Behnam Bordbar of Transcore Pty Ltd on behalf of the applicant and Mr RG Davies, Manager, Technical Services at the City. The meeting discussed the City's concerns with the proposed method of rubbish collection on safety grounds, and the probability of an "embayment" for rubbish collection within the Lowanna Way street verge between the two crossovers (entry/exit) to the development.

21 A proposed design for the "embayment" was submitted to Mr RG Davies on 7 September 2006.

22 On 14 September 2006, as shown in Attachment 10 to Mr Hajigabriel's witness statement, Mr Davies replied:


    " … We have assessed proposal and after detailed consideration we still feel that the best outcome for the development would be for a redesign which removes the need to pick up bins from the verge in this location."




Legislative and policy provisions

23 Under the provisions of TPS 4, the objectives for the "Residential" zone include:


    "To provide for a range of housing and a choice of residential densities to meet the needs of a variety of household types which make up the community."

24 The proposal appears to be in line with those objectives.

25 Clause 5.2.4 of TPS 4 allows Council general discretion in residential zones to approve development of grouped housing on dual coded lots. The subject land has a dual coding of R15/R25.

26 Under TPS 4, there is provision for local planning policies, and PLN 3.1 is such a policy. It is supplementary to and is to be read in conjunction with TPS 4 and the Codes.

27 The policy objectives of Policy PLN 3.1 include:


    (g) To provide for the safe and convenient collection of rubbish bins by the City's waste disposal vehicles.

(Page 9)



28 The specifics of the policy relating to rubbish collection include:

    "4.3.6 Provision for rubbish collection

    4.3.6.1 In determining applications for grouped dwellings consideration will be given to the adequacy of the provision for the safe and convenient collection of rubbish and recycling bins by the City's waste disposal vehicles. The application for planning approval is required to identify the collection points (bin pads) and the City needs to be satisfied that their placement will be adequate to facilitate easy collection and not jeopardise the safety of pedestrians on footpaths or users of the road system. Where this cannot be satisfactorily demonstrated alternative access arrangements will need to be provided by the applicant.


      4.3.6.2 The following criteria shall be applied to the placement of bin pads:

        • Sufficient space is required to accommodate two bins for each unit within a proposed development plus adequate separation space to enable manoeuvring by mechanical arms without encroachment onto the frontage of adjoining properties. Generally a space of 1.8m per unit will be required to be clearly marked and available for bin placement. Bin pads should not be separated from the street by a public footpath. Bin pads should generally be located 0.8m behind the kerb;

        • There is a presumption against the siting of bin pads near intersections, bus stops, median islands, roundabouts, slow points, along busy arterial roads or where their location will impact on traffic sightlines or safety;

        • Bin pads should not be located further than 75m from the respective residential

(Page 10)
    dwelling. The intervening distance should have a gradient no greater than 10% with no stairs;
    • The design should provide for access between the bin storage area to the bin placement area without passing through living areas.
    4.3.6.3 Where the criteria set out in clause 4.3.6.2 cannot be met in its entirety, management for bin pick­ups either on-site or via alternative access, will be required.

    4.3.6.4 Where alternative arrangements are required, conditions may be placed on development to ensure that:


      • Land is given up free of cost where the site can be connected to an existing or future rear lane way or road (of at least 5m width);

      • Provision is made for the construction of a portion of a rear lane way or road;

      • Provision is made within a grouped dwelling or multiple dwelling development to provide for adequate internal turning and movement of waste collection vehicles and adequate hardstand for the placement of bins; and

      • The pavement to be designed to accommodate a 25 tonne dual axle vehicle.


    4.3.6.5 Where the City requires the preparation of a waste management plan prior to the City determining an application or as a condition of development approval the plan shall take into account;

      • Possible future developments in the area;
(Page 11)
    • Convenience for waste generators;

    • Convenience for waste collectors;

    • Impact on future roadside pedestrian movements;

    • Impact on future road vehicle traffic."


29 In this particular case, the bins are proposed to be placed at locations in Lowanna Way some 33 metres (six bins), 51 metres (six bins) and 70 metres (six bins) from its intersection with Braemore Street, and in Braemore Street some 27 metres (six bins) from its intersection with Lowanna Way.

30 The position of the respondent is that the arrangement is neither safe nor convenient in the circumstances of this case.




The existing situation

31 In a report titled Proposed Aged Persons Accommodation Lot 34 (No 3) Lowanna Way Armadale (Report) on City of Armadale letterhead, and attached as Attachment 6 to Mr Hajigabriel's witness statement, the following points are made:


    (a) The Challis Primary School has 323 primary school students aged 7 to 12 years and 280 early childhood students aged 4 to 7 years. They arrive between 8.15 am and 9 am and leave at 3 pm, except on Tuesdays when they leave at 2.30 pm.

    (b) The students enter and exit the school at five points; one on Braemore Street, two on Lowanna Way, one at the "kiss and go" car park and from across the school oval.

    (c) Parking is permitted on the school side of Lowanna Way, with "no standing" on the south side adjacent to the subject land.

    (d) The Lowanna Way pavement is 7.5 metres wide and passenger vehicles can pass in both directions with vehicles parked along the kerb. Trucks have difficulty passing with vehicles parked.


(Page 12)
    (e) There is "no standing" in Braemore Street, and both streets have traffic islands in the road reserve adjacent to the subject land.

    (f) The traffic count in Lowanna was 2065 vehicles per day in 2001 and 3819 vehicles per day in Braemore in 2004. These numbers are expected to increase to 2300 and 4500 respectively in 2020, but the figures could double under the R15/R25 housing density code.

    (g) The morning peak lasts for about 30 minutes, with vehicles moving in and out of parking spots on the school side of the road for 200 metres to drop off students. There can be three or four vehicles, at any one time, parked illegally on the verge opposite the school.

    (h) When vehicles do park illegally opposite the school, parents shepherd their children across the road rather than walk to the intersection and cross with the attendant present.

    (i) There is a constant stream of complaints from the parents to the Principal of "near misses", and expressions of concern over the situation in Lowanna Way.


32 In the witness statement, dated 7 February 2007, of Mr Bob Sutton, he advises:

    (a) The northern side of Lowanna Way next to the Challis Primary School has a rollover kerb with a wide, 2.5 metre concrete footpath along which parents drop off and pick up their children.

    (b) The southern side of Lowanna Way has a high back kerb, no footpath and clearly marked "no standing" signs.

    (c) Parents ignore the "no standing" signs with some parking in the driveway of the subject land to drop off and pick up their children.


33 In the witness statement, dated 6 February 2007, of Mr MO Klyne, a qualified engineer and town planner at Klyne Consultants Pty Ltd, he advised for the respondent:
(Page 13)
    (a) There are no parking restrictions imposed on the north side of Lowanna Way. However, a "no standing" parking provision on the road and verge is imposed on the south side of the road; effective 7.30 am to 9 am and 2.30 pm to 4 pm.

    (b) Traffic in Lowanna Way comes to a standstill when a refuse collection vehicle stops to collect refuse.

    (c) During certain periods, vehicles in Lowanna Way are queued back from Braemore Street; resulting in "gridlock". This also happens when the traffic warden stops the traffic at the pedestrian crossing.


34 In the joint statement of Messrs Bordbar, Klyne and Sutton, dated 12 February 2007, the so-called "agreed matters" include:

    "iv. On street and verge parking is currently prohibited on the development site of Lowanna Way during the periods 7.30 am to 9.00 am and 2.30 pm to 4.00 pm on school days.

    v. Kerbside parking on the development site outside the above periods is unrestricted and vehicles parked at this kerbside may impede the traffic using Lowanna Way.

    vi. The collection of waste along Lowanna Way generally occurs outside the school peak hours.

    vii. Kerb side parking on Lowanna Way is unrestricted and vehicles parking on both sides of the street will impede traffic using Lowanna Way.

    viii. Kerb side waste collection on Lowanna Way may impede traffic flow."


35 The so-called "agreed matters" are important in this case as they highlight the fact that if the development was to proceed, with up to 18 bins placed in Lowanna Way for morning collection, that kerbside and verge parking on the south side of the street would be restricted between 7.30 am and 9 am. This means that the bins could, theoretically, be emptied at that time without conflict with parked vehicles. However, it is clear from information before the Tribunal that this is not the case, as
(Page 14)
    parents defy the restriction and park on the south side of Lowanna Way. The overall situation is chaotic.

36 On the other hand, if the collection of rubbish bins was arranged to occur after 9 am, it is possible that vehicles could be parked kerbside on the south side of Lowanna Way during the "unrestricted" period and block the bin collection truck. It is, however, difficult to imagine this happening if the bins are in position, and there is the opportunity for visitors to park on the north side of Lowanna Way adjacent to the school.


The verge bin collection process

37 The collection of rubbish bins from the street verge can be achieved by the driver on the basis of 3 to 4 mobile garbage bins being collected per minute when lined up in a row. If a bin falls over, or waste is spilt, the driver is obliged to get out of the truck and rectify the situation. This could take between 1 to 5 minutes.

38 The collection of bins from the kerbside of single lane carriageways, and confined by traffic islands, is to be avoided wherever possible.

39 If the proposed development was to proceed as planned, there would be 12 bins for collection per week (9 bins in Lowanna Way and 3 bins in Braemore Street) and 24 bins for collection each fortnight (18 bins in Lowanna Way and six bins in Braemore Street) positioned outside the subject land.




The "embayment proposal"

40 An "embayment proposal" to assist the bin collection process, and help traffic flow, was suggested by the applicant:

41 However, in the witness statement of Mr Sutton, he advises:


    (a) An "embayment" would encourage parents to park on or stand in the allocated area for drop off or pick up. In these circumstances, the allocated area would not be available for the rubbish truck to collect the bins.

    (b) There would be a problem of driver visibility, as the driver sits in the passenger position when collecting the rubbish via the mechanical arms. The truck is designed to remain on the road carriageway so that the driver can use the rear view mirrors to see the traffic behind, and to know when to move out and forward.


(Page 15)
    (c) If a driver pulls into a verge "embayment" and goes to move forward, the truck is no longer parallel to the road carriageway. When the truck is at a slight angle to the kerb the driver cannot properly see the traffic behind the truck through the rear view mirrors, and an additional "fish eye" mirror is unhelpful in judging distance.

    (d) The City cannot instruct its recycling contractors, or the City's waste drivers, to engage in unsafe rubbish removal practices.


42 Further points made in the Report include:

    (a) Council will be responsible for the ongoing cost of the "embayment" to solve the developer's problem.

    (b) Unlike a bus, a waste truck does not have the right of way when exiting an "embayment". Delays in collection would occur if this became the norm.

    (c) The water shedding surface of a development site is around 80% – 90%. Paving the verge for waste collection would increase this area, and would increase the load on the Council drainage system.





The alternate proposal

43 In the witness statement of Mr Sutton, he advises:


    (a) An alternative plan (at his Attachment 4 – Alternative Driveway Plan) has been prepared which would require a new lot configuration and new driveway design. This would allow a rubbish truck to safely enter the site in forward motion from Lowanna Way, collect the rubbish on-site and then exit onto Braemore Street in a forward motion.

    (b) The redesign could be achieved without the loss of any of the 12 dwellings.

    (c) A further option exists where the number of dwellings could be reduced to allow on-site rubbish collection, but with the rubbish truck entering the site off Lowanna Way and exiting back onto Lowanna Way in forward gear.


(Page 16)



44 In the Report, a number of additional points are made in favour of the alternative proposal:

    (a) The bins would be collected from in front of the individual units.

    (b) Council's Waste Services provides a special service (gofa) for the infirm. The driver collects the bin from a pre-arranged place on the property, empties the bin and returns it to the resident.

    (c) Council currently provides an on-site collection service for four retirement villages, two caravan parks and several sets of units.


45 The applicant's reaction to the alternate proposal is best explained in Mr Hajigabriael's witness statement:

    " 67 … For the following reasons however the creation of an accessway through the subject site is not practical, safe or desirable:

    (a) The proposed development provides accommodation for aged or dependent persons. Allowing the respondent's rubbish collection vehicles to enter the subject site will create an unacceptable safety hazard for residents within the development;

    (b) The amenity of the residents in the proposed development will be compromised by on-site rubbish collection by the Respondent;

    (c) The proposed development will be gated for security purposes thereby creating an access problem for the Respondent's rubbish collection vehicles;

    (d) The size or number of the dwellings will need to be reduced in order to facilitate the construction of an additional accessway;

    (e) The accessway through the subject site serves as both a pedestrian and low speed vehicle access. The introduction of truck movements to this environment would be in conflict with the pedestrian function of the accessway; and


(Page 17)
    (f) There will be potential liability concerns for the Respondent in the event that damage to property or injury to persons occurs as a result of the Respondent's rubbish collection vehicles entering the site."

46 In his submissions to the hearing, Mr Samec, Counsel for the respondent, advised:

    "The City's position is that it is certainly not following this plan. … It is merely presented as, if you like, a layout which indicates that the development at this density could be accommodated on this site with an internal driveway which could collect rubbish. We say no more than that and if the applicant has strenuous objections to that it really goes no further. We have no capacity to inflict it upon the applicant."

47 In the view of the Tribunal, the matter before it is confined to the safety aspects of rubbish removal and the associated traffic management issues. There is in fact no formal alternative subdivisional proposal before it for consideration and decision.

48 However, the Tribunal does acknowledge that an alternative subdivision design is possible on the subject land, and that it could include a driveway access between Lowanna Way and Braemore Street. Such a redesign would assist the rubbish collection process, but would also prevent the current "two-cluster" proposal of six dwellings each proceeding. It could also compromise the quietude, safety and amenity of the residents within the proposed development.




Other matters

49 In the witness statement of Mr Hajigabriel, he advises:


    "Although the applicant is of the view that the standard bin setback distance of 0.8 m prescribed under the provisions of Policy PLN 3.1 is acceptable and appropriate in this instance, the applicant has offered to set the bin pads further back from the kerb at a distance of 1.5 m. Indicative Revised Development Proposal Plans identifying alternate locations for the bin pad area in the street verge are contained within Attachment 11."

50 The effect of Attachment 11 is to remove all bins from the street verge in Braemore Street and reposition them onto the street verge in
(Page 18)
    Lowanna Way. This would mean that up to 24 bins would be placed in Lowanna Way at three separate locations approximately 35 metres, 45 metres and 65 metres from the intersection with Braemore Street.

51 The bins would also be positioned on bin pads set back 1.5 metres from the road pavement in order to overcome the perceived safety risk when bins are placed at 0.8 metres from the road pavement and children move quickly between the bins to cross the road. Such a situation provides a limited reaction time for a driver moving forward.

52 A further matter of relevance is shown at Attachment 12 to Mr Hajigabriel's witness statement where a hypothetical "green" title subdivision is indicated at the lowest applicable density of R15. This shows four separate lots in the order of 730 square metres each, with 16 metre to 17 metre frontages to Lowanna Way.

53 The point being made by the applicant is that with a "green" title subdivision, up to eight bins would be located at four separate locations (two bins per location) at varying distances back from the intersection with Braemore Street. The number of bins would represent one-third of the bins under the current proposal, but the driver would still be required to stop four times.

54 The matter of traffic numbers entering and leaving the development was a further relevant matter addressed by Mr Klyne in his witness statement. His assessment concludes that at the rate of six vehicle trips per dwelling, there would be a total of 72 trips per day; with 36 trips associated with each of the two driveways.

55 Based on Mr Klyne's calculations, the proposed development would generate a total of eight vehicle movements (four vehicle movements per driveway) in both the morning and evening peak hour.

56 In the view of the Tribunal, these vehicle numbers are insignificant in the context of traffic along Lowanna Way, and would be unlikely to affect the bin collection service; even if it was to occur during peak hour.

57 The relevance of the Codes was also raised by Mr Hajigabriel in the context of Design Element 3.10.3 (A 3.2) which states that:


    "Where rubbish bins are not collected from the street immediately adjoining a dwelling there is provision for a commercial pick-up area or areas … "

(Page 19)



58 The deduction made by Mr Hajigabriel is that:

    " … the Acceptable Development provisions contemplate the collection of rubbish bins from the street verge in the ordinary course and as normal practice with the provision of communal pick-up areas as an alternative only."




Conclusions

59 The application for review has been lodged against a "deemed refusal" by the Town of Armadale for the development of 12 Aged Persons' Dwellings in Lowanna Way, Armadale.

60 The issue, as argued by the parties, is restricted to the location of rubbish bins for weekly collection. The respondent argues that, in the interests of safety, the collection should be on-site rather than from the Lowanna Way and Braemore Street road reserves.

61 In examining this matter, the Tribunal had regard to the relative position of the parties, the background to the proposal, the legislative and policy provisions, the existing traffic management problems and bin collection process, an "embayment" proposal as a traffic management measure, an alternative design proposal for the subject land and a range of other relevant matters.

62 In the view of the Tribunal, although an alternative subdivisional design is possible with driveway access from Lowanna Way to Braemore Street to accommodate a rubbish collection vehicle, no such proposal is in fact before it for consideration and decision.

63 This matter is therefore put to one side for the purposes of this review.

64 Based on the evidence before the Tribunal, it is clear that the pedestrian and traffic situation outside the Challis Primary School in the morning and afternoon peak is chaotic for a whole host of reasons, not the least being parents breaking the law by parking in a restricted area on the road and road verge on the south side of Lowanna Drive.

65 The various illegal actions taken elsewhere by parents was clearly shown in a DVD presentation to the Tribunal. The time and location was on 29 July 2005 in Third Avenue opposite the Kelmscott High School, and showed a range of misdemeanours such as parking on the wrong side of the road, parking on the footpath and doing U-turns. Some of these actions are repeated at the Challis Primary School.

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66 In its assessment, the Tribunal must reasonably assume that the collection of rubbish can be orchestrated outside school peak times, and as stated by Mr Sutton in his witness statement :

    "29 … I have instructed the drivers to avoid the collection where possible during school peak times in school and other sensitive areas such as near child care centres."

67 In the view of the Tribunal, the instruction to drivers to collect rubbish outside of school peak times should be a mandatory requirement, and the problem of small children walking between bins to cross the road in the path of a rubbish collection vehicle during school peak times would then be avoided.

68 That being the case, the issue of children crossing Lowanna Way from south to north during the school peak period in the morning, or the reverse in the afternoon, without utilising the pedestrian crossing must be addressed. It clearly originates from vehicles illegally parked on the south side of Lowanna Way, and this matter of non-compliance was raised by Mr M Hardy, Counsel for the applicant, in this way:


    "We understand and accept the enforcement difficulties that may be faced by the City, as with every other regulatory authority, but the fact that there are people breaking the law in circumstances where compliance with the law is squarely within the enforcement province of itself ought not to be seen as a contributing factor to the way in which road safety generally ought to be considered or in which a potential jeopardy ought to be given some comparative weight."

69 The Tribunal accepts Mr Hardy's point on this matter. Even so, it is clear from photographic evidence provided by the respondent that a far greater number of vehicles do park legally on the north side of Lowanna Way, and the children utilise the existing footpath. There is no footpath on the south side.

70 The prime issue now before the Tribunal becomes confined to the situation of a waste disposal vehicle arriving outside the school peak times, and the consequential effects on traffic flow.

71 If the bins were located in three or four separate positions in Lowanna Way, then this could become particularly aggravating for motorists travelling west behind a stop-start rubbish truck and with oncoming vehicles travelling east. A similar, if not greater, aggravation


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    would occur in the more highly trafficked Braemore Street, with a rubbish truck heading south and stopping to collect up to six rubbish bins on the road between the verge and the median island. South-bound traffic would be brought to a halt.

72 In the view of the Tribunal, there should be no bins positioned on the verge within the Braemore Street reserve. This action would be in line with cl 4.3.6.2 of Policy PLN 3.1, and should be included as part of any waste management plan.

73 However, the consequences of this action would be that up to 24 bins would need to be positioned on the street verge in Lowanna Way.

74 Working on the assumption of 30 seconds to collect each bin, this would entail up to six minutes for the normal rubbish collection of 12 bins, and up to twelve minutes for the fortnightly collection of 24 bins.

75 However, based on figures in the Report:


    "A waste truck lifts 3 – 4 MGBs [mobile garbage bins] per minute when lined up in a row."

76 This means that collection times could be reduced if a large number of bins were positioned together in a row.

77 At Attachment 11 to Mr Hajigabriel's witness statement are two alternative bin configurations in Lowanna Way, with the first showing three collection points (six bins, six bins and 12 bins) and the second showing one collection point (24 bins).

78 The difficulty in the second configuration would be that the rubbish truck would be positioned more or less in the one location for 3 to 4 minutes (based on three to four bins per minute) for the weekly collection, and six to eight minutes for the fortnightly collection.

79 In those circumstances, a vehicle or vehicles behind the truck would, with an irritated driver(s), be tempted to move out of the left hand lane to pass the truck, but into the line of approaching traffic. Clearly, there is a safety risk here.

80 In the view of the Tribunal, the most desirable outcome would be the construction of a new left hand turning lane built within the existing wide verge, and over a sufficient length for motorists to safely turn left from Lowanna Way into Braemore Street. This would also allow the rubbish truck to stop in the new far left hand lane for rubbish collection, and there


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    would be no impediment to vehicles travelling west in their approach to the intersection. However, that is not the circumstance facing the Tribunal at this time.

81 The primary safety concern could be addressed with the provision of an "embayment" between the two driveways in which up to 24 bins could be positioned or, depending on the manoeuvrability of the rubbish truck, up to 18 bins only, with six bins positioned on the verge on the eastern side of the easternmost driveway. The "embayment" would need to be clearly marked with "no standing" signs, and the pavement painted with wide diagonal lines in white or yellow.

82 The only difficulty here is that raised by Mr Sutton in his witness statement where he argues that the line of sight of the driver sitting in the passenger seat is affected when wanting to move out of the "embayment" into a line of traffic. As Mr Sutton explains:


    "The City cannot instruct its recycling contractors or the City's waste drivers to engage in unsafe rubbish removal practices."

83 However, based on the information before the Tribunal at [37], a driver is required to leave the vehicle when a bin falls over or waste is spilt from the bin to rectify the situation or, so it seems, under the "gofa" arrangement [44(b)].

84 With an "embayment" in place, the rubbish truck would arrive with the driver on the passenger side and collect rubbish from up to 24 bins. He could then leave the passenger seat and return to the driver's seat in order to safely negotiate access onto the road. The time taken would be approximately 30 seconds, but this time (including the time taken to return to the passenger seat at the next collection point) would be more than offset by the time saved in collecting up to 24 bins in one line.

85 In the view of the Tribunal, the prime planning considerations are those of safety to pedestrians and motorists and proper traffic management. In that sense, the provision of an "embayment" between the two proposed driveways would be a positive move to address these concerns so close to the intersection of two important local distributor roads.

86 The Tribunal also believes that the collection of rubbish from rubbish bins located on the Lowanna Way verge (without an "embayment"), and outside of school peak times, could increase the safety risk to motorists.


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    However, the provision of an "embayment" in Lowanna Way would, almost certainly, help to decrease that risk.

87 On the question of the "alternate" proposal the Tribunal does not believe that the on-site collection of rubbish is justified; particularly when the arrival of rubbish trucks can be orchestrated outside of school peak times, and traffic management measures can be implemented to reduce safety risk.

88 The matter is decided in favour of the applicant, but subject to conditions.




Orders

89 For the foregoing reasons, and in accordance with s 29(3) of the State Administrative Tribunal Act 2005 (WA), the orders of the Tribunal are:


    The application for review is upheld in accordance with the following conditions:

    1. Submission of a waste management plan to the satisfaction of the City of Armadale.

    2. The preparation of a traffic management plan (to include an appropriately located and marked "embayment" in Lowanna Way) that provides for the safe and efficient collection of waste to the satisfaction of the City of Armadale. This plan should highlight the necessary measures that will need to be implemented on each collection day to ensure the safety of all road users and pedestrians.

    3. A schedule of external colours and materials is to be submitted to and approved by the City of Armadale. Alternative colour tones and materials are to be used for each dwelling to demonstrate a high standard of visual amenity and attractive streetscape. The development is to be completed and maintained in accordance with the approved schedule to the satisfaction of the City of Armadale.

    4. Submission and implementation of a stormwater management plan in accordance with water-sensitive

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    design principles to the satisfaction of the City of Armadale.
    5. With the exception of fencing within the front setback area, internal fencing and other property boundary fencing is to be 1.8 metres high measured from the new ground level/top of retaining walls and constructed to a minimum standard of masonry, "Colorbond" or fibro cement painted in a colour to complement the proposed development to the satisfaction of the City of Armadale.

    6. Submission of a comprehensive landscape plan (including the verge) to the satisfaction of the City of Armadale. Such plan is to include plant species (predominantly West Australian natives), numbers, location, container size and method of irrigation of the landscaped areas. The landscape plan is to be approved and all landscaping installed and maintained to the satisfaction of the City of Armadale.

    7. Crossovers, driveway, car parking and vehicle manoeuvring spaces shall be constructed, drained, sealed, kerbed, marked and continuously maintained in accordance with the approved site plan to the satisfaction of the City of Armadale.

    8. Driveways to be brick paved to the specifications and satisfaction of the City of Armadale.

    9. Owner of the land entering into a legal agreement or satisfactory alternative with Council which shall bind the owner and his heirs and successors in title, requiring that at least one permanent occupant of the dwelling is a disabled or physically dependent person or aged over 55, or is the surviving spouse of such a person.

    10. A cash-in-lieu payment for footpath construction being paid to the City of Armadale at the rate of 5.0 metres of footpath per unit.

    11. All conditions are to be complied with prior to exercising the right of this approval to the satisfaction of the City of Armadale.


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    I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR L GRAHAM, SENIOR SESSIONAL MEMBER


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