| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT (DEVELOPMENT ASSESSMENT PANELS) REGULATIONS 2011 (WA) CITATION : LAWRENCE and METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL [2014] WASAT 33 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) MR B CALLOW (SESSIONAL MEMBER)
HEARD : 25, 26 AND 27 FEBRUARY 2014 DELIVERED : 21 MARCH 2014 FILE NO/S : DR 251 of 2012 BETWEEN : RAMON LAWRENCE Applicant
AND
METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords: Town planning Development application Refusal of permission for multiple dwellings in Mixed Business zone Conformity of use with objective of zone Appropriateness of use in future transport oriented development node Whether proposed use is premature Amenity of site Noise impacts associated with adjoining rail line and light industrial area Access to and from site Connectivity to facilities and services Compliance with planning framework Legislation: State Administrative Tribunal Act 2004 (WA), s 31
City of Gosnells Town Planning Scheme No 6, cl 5.8, cl 5.8.4, cl 5.8.4(a)(i), cl 5.8.4(a)(ii)
Environmental Protection (Noise) Regulations 1997 (WA), reg 10 Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: This is a review of the respondent's decision to refuse development approval for multiple dwellings in a Mixed Business zone in Canning Vale.
The respondent refused the proposal on grounds that: it did not comply with the objectives of the zone;
the site is inappropriate for residential use because of impacts associated with the surrounding industrial land uses and the adjoining rail freight line;
the application is premature in respect of future transit oriented development;
the site lacks appropriate residential amenity, and
certain access arrangements on adjoining land are not considered achievable. The Tribunal considered arguments put by the parties in respect of accessibility and connectivity of the land, the impact of noise associated with surrounding land uses (particularly the freight rail line), the amenity qualities of the land, and the conformity of the proposal with the relevant planning framework.
The Tribunal found that the application failed to demonstrate an acceptable level of amenity for residential development or an appropriate convenience of connectivity with community services and facilities. The Tribunal also found that the proposal did not comply with key instruments of the planning framework, including the objectives of the Mixed Business zone.
The application for review was therefore dismissed and the respondent's decision of refusal was affirmed.
Category: B
Representation: Counsel:
Applicant : Mr M Hardy
Respondent : Ms C Ide
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is a review of the decision of the Metropolitan East Joint Development Assessment Panel (DAP or respondent) not to grant planning approval for the development of 108 multiple dwellings on No 459 (Lot 887) Nicholson Road, Canning Vale (lot, land or site). 2 The application for the proposed development was submitted to the City of Gosnells by Greg Rowe and Associates on behalf of Mr Ramon Lawrence (applicant) on 19 March 2012. 3 Following consideration of the application on 19 June 2012, the respondent issued its decision of refusal of planning approval on 2 July 2012. 4 The applicant lodged an application for review of the respondent's decision with the State Administrative Tribunal on 12 July 2012. 5 On 8 November 2012, the applicant lodged revised plans including modifications to the design of the proposed dwellings and vehicle access arrangements and subsequently, on 23 November 2012, the Tribunal invited the respondent to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 6 The respondent further refused the application on 13 December 2012. 7 On 8 November 2013, the applicant again lodged revised plans with the respondent which included modifications to the proposed vehicle access and pedestrian access arrangements. These are the plans of the proposed development now the subject of this review.
The proposed development and its context 8 The proposed development is for 108 multiple dwellings, of which 27 will be three bedroom units, 54 will be two bedroom units and 27 will be one bedroom units. 9 The dwelling units will be accommodated in 36 three storey buildings, mostly grouped and linked by stairwells. 10 Lot 887 Nicholson Road is rectangular, with a width of 121 metres and a depth of 283 metres. The lot is 3.3962 hectares in area. 11 The proposed multiple dwellings are to be located on the rear (northwestern) third of the lot, on a presently vacant development site dimensioned approximately 121 by 97 metres. 12 The south-eastern portion (about a third) of the lot, fronting Nicholson Road, is occupied by the Willow Ponds Reception Centre (Reception Centre) and its associated car parking. In between the Reception Centre and the proposed multiple dwelling development is a small lake and landscaped garden which occupies the middle third of the lot. 13 To the northwest of the proposed development is the railway reserve for the freight rail line connecting Kwinana and Fremantle port facilities with Kewdale, Forrestfield and Midland. This reserve will, in the future, also accommodate a passenger rail line. 14 The adjacent Lot 888 (to the northeast) is owned by the Western Australian Planning Commission and has been set aside for the purpose of constructing the Canning Vale passenger railway station. 15 Canning Vale Police Station is located on Lot 890 adjacent to the Reception Centre fronting Nicholson Road. 16 To the south-west of the land is Tulloch Way, a local road servicing a small light industrial estate, accessed from Nicholson Road. 17 All of these varied land use elements form a 'corridor' between Nicholson Road and the railway reserve. Beyond this 'corridor', land to the southeast of Nicholson Road is mostly suburban residential, other than a small 'mixed use' estate on the corner with Garden Street. To the northwest of the railway reserve lies the Canning Vale Industrial Estate.
Statutory and policy instruments 18 The land is zoned 'Mixed Business' under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). 19 The objective of the Mixed Business zone is: To provide for a variety of commercial activities including showrooms and other forms of bulk retailing/display in strategically located areas of the City. 20 The proposed land use 'multiple dwelling' is a use that is not permitted within the Mixed Business zone unless the local government has exercised discretion by granting planning approval. 21 Clause 5.8 and Table 2A of TPS 6 classify the Mixed Business zone as a commercial zone. Clause 5.8.4 further provides that: (a) Where an application for planning approval proposes residential development in a commercial zoned area, Council shall have regard to: (i) The character of the area and the need to protect commercial uses from undue influences or restrictions resulting from residential occupation; (ii) The suitability of the area for residential development with reference to the level of amenity and/or conflict between residential and commercial uses, acknowledging that residential uses in a commercial zone should expect a different level of amenity to that available in a residential area; and (iii) The provisions of the Residential Design Codes (2002) at the R80 density code and the objectives of the Scheme. … 22 A number of State planning policies are relevant to this review. These include: • Statement of Planning Policy No 1 State Planning Framework Policy (SPP 1); • Statement of Planning Policy No 3 Urban Growth and Settlement (SPP 3) which refers, inter alia, to promotion of 'a sustainable and liveable neighbourhood form'; • State Planning Policy No 4.1 State Industrial Buffer Policy (SPP 4.1); • State Planning Policy No 3.1 Residential Design Codes of Western Australia (2010) (Codes) with regard to building setback, parking provision and vehicular access requirements; and • State Planning Policy 5.4 Road and Rail Transport Noise and Freight Consideration in Land Use Planning (SPP 5.4) with regard to noise criteria in relation to noise sensitive developments. 23 The Western Australian Planning Commission's Development Control Policy 1.6 Planning to Support Transit Use and Transit Oriented Development (DCP 1.6) provides objectives in relation to spatial patterns of development and effective integration of transit infrastructure on public and privately owned land. 24 Other documents relevant to this review include: The respondent's decision 25 Pursuant to s 31 of the SAT Act, the Metropolitan East Joint Development Assessment Panel (JDAP), at its meeting on 11 December 2012, resolved to refuse the modified application for multiple dwellings at Lot 887 Nicholson Road, Canning Vale for the following reasons: 1) The proposed development does not meet the objectives of the Mixed Business zone under TPS 6. 2) The subject site is inappropriate for residential development due to the impacts associated with the surrounding industrial land uses and adjoining rail freight line. 3) The application is considered premature in the context of 'Transit Oriented Development', given uncertainties regarding timeframe, planning, and design requirements for a passenger rail station in Canning Vale. 4) The subject site lacks the necessary amenities and services required to support such development. 5) The proposed access arrangement through adjoining Lot 888 is not considered achievable due to land ownership issues, primarily due to the lack of landowner consent.
The issue to be addressed 26 The issue to be addressed is whether the proposed development should be approved having regard to its compliance with the relevant planning framework and, in particular, the suitability and amenity qualities of the development land in the context of: The respondent's argument 27 The respondent contended that: • means of vehicle and pedestrian access to and from the proposed development are unsatisfactory; • the proposal is in conflict with the objectives of the Mixed Business zone; • the amenity of the proposed development is compromised by the daytoday operations of adjoining light industrial businesses and noise nuisance associated with present and future train movements on the adjoining rail lines; and • the proposed development lacks safe and convenient access to necessary amenities and facilities. 28 Mr Joe Algeri, a qualified and experienced planning consultant, gave evidence on behalf of the respondent. 29 Considering the planning framework relevant to the proposed development, Mr Algeri drew attention to SPP 5.4, highlighting that the proposed residential development constitutes a noisesensitive land use for the purposes of the policy. In such circumstances, if noise management and mitigation measures are required to alleviate noise nuisance, then an effective measure is to use 'distance to separate noisesensitive land uses from noise sources'. 30 Mr Algeri further referred to the DEC Report which showed that residences within 50 metres of the rail track are significantly impacted by low frequency rail noise and vibration. Given that the plans of the development illustrate dwellings set back 38 metres from the rail line, Mr Algeri therefore advised that if the proposed development is to be approved, then it should comply with the 50 metre setback as per the findings of the DEC Report. 31 Mr Algeri acknowledged that when the Canning Vale passenger railway station is operative, the proposed development could satisfy some of the policy objectives of DCP 1.6. Because the time frame for implementation of the passenger rail service cannot be considered imminent, Mr Algeri was of the view that it was premature to assess the development proposal against the objectives of clause 3 of DCP 1.6. In this regard, whilst part of the land and the adjoining Lot 888 are vacant, there is an established built form and land use pattern surrounding the land. This could change as existing developments end their serviceable life, and further changes to the statutory framework may alter land use and/or density. Mr Algeri was therefore of the view that at present, if approved, the proposed development would result in a pocket of residential development adjoining the industrial area to the southwest and to the north, with unsatisfactory connectivity to public open space and the Canning Vale residential area. Such a circumstance would not meet the objectives of DCP 1.6, particularly: • [T]o enhance community accessibility to services and facilities[.] … • To encourage balanced public transport rider-ship along transit corridors by creating places that are destinations as well as points of departure. … • To promote and facilitate walking and cycling within transit oriented precincts by establishing and maintaining high levels of amenity, safety and permeability in the urban form, and to promote and facilitate opportunities for integrating transport modes by creating opportunities for convenient, safe and secure mode interchange. 32 In respect of TPS 6, Mr Algeri expressed the view that because of its location adjoining light industrial businesses and the freight rail line, and because of the amenity impacts associated with such a proximity, the proposed development would not conform with particular aims of the Scheme. These aims include expectations: • To provide for a range of housing in neighbourhoods with a community identity and high levels of amenity. Mr Algeri noted here that the proposal will not result in a high level of amenity, particularly for those occupants closest to the rail subject to annoyances of noise, light and vibration. • To ensure the orderly and proper use and development of land within the district. Mr Algeri observed that it was not consistent with orderly and proper planning to locate the development where it closely adjoins light industrial businesses and a freight rail line, and in a position isolated from other residential development. • To protect and enhance the quality of the urban … environment … and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community. Mr Algeri suggested that the location of the proposed development adjacent to light industrial businesses and a freight line does not enhance the quality of the urban environment. Additionally, the land is remote from services and amenities such as public open space and other residential and commercial areas, and is separated from them by the heavily trafficked Nicholson Road. • To promote the health, safety, convenience and the economic and general welfare of the community. Mr Algeri again alluded to the noise, light and vibration impacts of the 24 hour rail operation to affirm his view that such impacts are not conducive to promotion of the health and welfare of residents. • To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment. The demonstrable isolation of the proposed development from other services, amenities and land uses would, according to Mr Algeri, adversely impact on the physical and social environment. 33 Mr Algeri referred to the prevailing Mixed Business zone and its objective which describes a purpose '[t]o provide for a variety of commercial activities including showrooms and other forms of bulk retailing/display in strategically located areas of the City'. 34 Mr Algeri expressed the view that the proposed development does not satisfy this objective. The proposal is a residential use without a commercial component, and it is not located in immediate proximity to other commercial uses. 35 The provision of cl 5.8.4(a)(i) of TPS 6 refers to 'the character of the area and the need to protect commercial uses from undue influences or restrictions resulting from residential occupation'. Mr Algeri observed that it was his experience that complaints of noise nuisance are common from a residential environment irrespective of the zoning or permissibility of surrounding land uses. This may force compliance with statutory limits for noise emissions which may not otherwise apply, were it not for the proximity of noisesensitive premises. Such a restriction of activities would be contrary to cl 5.8.4(a)(i) of TPS 6 which seeks to protect commercial uses. 36 Mr Algeri also referred to cl 5.8.4(a)(ii) of TPS 6 concerning 'the suitability of the area for residential development with reference to the level of amenity and/or conflict between residential and commercial uses, acknowledging that residential uses in a commercial zone should expect a different level of amenity to that available in a residential area'. In this regard, Mr Algeri acknowledged that residential development in proximity of a railway station can be desirable, but that, in this case, the cumulative combination of noise, light and vibration associated with surrounding land uses are such that the expected degree of residential amenity will not be available. Mr Algeri contrasted this application from other transit oriented developments such as Cockburn where residential dwellings are further away from the station and the station itself and the rail line in the freeway reserve is cut into the land, thus ameliorating noise impacts. 37 On the question of vehicle access, Mr Algeri noted that the proposed development would be accessed through the industrial area via Tulloch Way. Tulloch Way has vehicles parked on road verges and on the road pavement, creating obstacles and an inconvenience for residential traffic. 38 On pedestrian access, Mr Algeri considered that Nicholson Road, with a traffic volume in the vicinity of 22,280 vehicles per day, was an unsafe and inappropriate crossing for pedestrians. Mr Algeri was also critical of the proposed pedestrian access route to Nicholson Road from the land, as it will be a narrow fenced corridor that does not allow for passive surveillance and is therefore potentially unsafe for users. 39 Mr Algeri noted that the proposed residential dwellings are a discretionary use under TPS 6, but concluded that in consideration of the planning framework, the location attributes of the sites are ill-suited to residential development as proposed because of a lack of sense of place, amenity concerns and potential land use conflicts. The proposal is therefore inconsistent with orderly and proper planning and should therefore not be approved. 40 Mr Jingnan Guo, a qualified and experienced expert in environmental noise employed by the Department of Environmental Regulation (DER), provided evidence on behalf of the respondent. 41 Mr Guo focussed much of his evidence on the environmental problem of low frequency noise (LFN) which can cause health effects including disturbance to rest and sleep. 42 Mr Guo identified that noise and vibration from freight trains running from Kewdale to Fremantle have been a concern of residents along the freight line in Jandakot, Cockburn and Southern River. 43 A study of train noise conducted by Mr Guo on behalf of the Department of Environment and Conservation (DEC), Canning Vale Train Noise and Vibration Monitoring (2011), indicated that LFN generated by the freight line had a significant impact on residences with distances from 40 to 50 metres of the rail track in the Canning Vale area. Impact on a residence 120 metres from the track appeared acceptable. 44 Mr Guo recounted that in the case of the proposed development, DEC had advised that the LFN impact might be at a 'marginally acceptable' level. Mr Guo explained that this meant a noise level that might be acceptable to some people but unacceptable to others more sensitive to LFN. Mr Guo further explained that it was for this reason that DEC recommended that the first row of dwelling units be restricted to short stay use. 45 Based on his experience and knowledge of freight train noise in the area and the characteristics of LFN, Mr Guo advised he was of the opinion that residents in the first row of dwelling units facing the rail track will feel and hear LFN clearly in their bedrooms. People who are more sensitive and vulnerable will find this unacceptable in terms of disturbed sleep and associated health problems. 46 Mr Guo also referred to the impact of industrial noise on the proposed development. Mr Guo identified that the neighbouring industries may request that the subject land be treated according to its previous zoning of 'Light Industry' when calculating its assigned noise level. This would mean that future residents of the proposed development may have to put up with noise levels up to 20dB higher than the desirable noise level for residential areas. While this may be allowable, it does not represent an acceptable noise level and should be avoided at the planning stage. 47 Based on his evidence, Mr Guo advised that he did not consider the proposed development acceptable in terms of noise and vibration impact.
The applicant's argument 48 The applicant argued that the proposed development conforms with the strategic directions of State planning and environmental policy which encourage high density residential development in proximity of public transport infrastructure. 49 The applicant further argued that in respect of the land uses surrounding the proposed development, the facility of traffic access to the land is practical and acceptable, and any residential amenity impacts, particularly those associated with noise and vibration, are not so significant as to warrant refusal. 50 Finally, the proposed development is adequately serviced by amenities and facilities located in proximity of the land. 51 For these reasons the proposal ought to be approved. 52 Mr Aaron Lohman, a qualified and experienced town planning consultant, gave evidence on behalf of the applicant. 53 Mr Lohman drew attention to a range of State policies against which the proposed development could be measured positively. These policies cited the desirability of integrating land use and transport planning, coordination of infrastructure, reduction of energy and travel demand, supporting higher residential density around transport nodes and reduction of car dependence. 54 Mr Lohman also noted the State Industrial Buffer Policy (SPP 4.1) addressed issues of industrial and residential land use interface including circumstances associated with transport routes. Mr Lohman highlighted that according to the policy, light industry was expected to retain all emissions on site or at least within the zone or park area. 55 State Planning Policy 5.4 Road and Rail Transport Noise and Freight Consideration in Land Use Planning (SPP 5.4) is a policy relevant to the proposed development. Mr Lohman drew attention to commentary in the policy regarding the impracticality of separating the source of noise, such as road and rail transport corridors, from noisesensitive residential land uses that they serve. 56 Mr Lohman advised that for the purposes of SPP 5.4 the word 'noise' does not include ground vibration. 57 Mr Lohman recorded that correspondence from DEC on 29 November 2012 in respect of the proposed development confirmed that noise modelling indicated that noise from train movements should comply with both the indoor and outdoor noise limits set by SPP 5.4. The advice from DEC, although further qualified, does not conclude that a residential development on the land would be unacceptably affected by noise. 58 Mr Lohman also referred to the Western Australian Planning Commission's Development Control Policy 1.6 Planning to Support Transit Use and Transit Oriented Development (DCP 1.6) which encourages higher density residential development close to transit facilities. 59 In respect of the local planning framework, the proposed development is a 'D' or discretionary use in the Mixed Business zone under TPS 6. Mr Lohman noted that the proposed residential development in the Mixed Business zone (generically described as a commercial zone) should, in accordance with cl 5.8.4(a)(ii) of TPS 6, expect a different level of amenity to that of a residential area. 60 Mr Lohman referred the Tribunal to the history of rezoning the land from Light Industry to Mixed Business, particularly a report to Council specifying that a number of forms of residential accommodation are included as permissible at the discretion of Council. 61 Concept design plans for the Nicholson Road railway station have been prepared by the Public Transport Authority (PTA). Mr Lohman described the plans, which feature station buildings and an island platform, busway, 'Kiss 'n' Ride'facility, 829 bay carpark and shared pedestrian/cycle way. The plans illustrate that the existing freight line will be relocated 10 metres northwest, away from the proposed development, thus increasing the separation from the source of freight train noise and the proposed dwellings. 62 Addressing the respondent's reasons for refusal of the proposed development, Mr Lohman disagreed that the proposal did not meet the objectives of the Mixed Business zone. He disagreed that there was a need for the proposal to include a commercial component or to be located proximate to commercial uses to create a synergy expected of the Mixed Business zone. There is no such obligation set out in the Scheme. Mr Lohman was of the opinion that a stand alone residential development in the Mixed Business zone was consistent with the zone objective because it is a development outcome specifically contemplated in TPS 6. Even if that was not the case, Mr Lohman observed that there were certain commercial uses in close proximity that could well benefit synergistically from a relationship with the proposed residential development. These include a restaurant within the zone, the Canna Drive Mixed Use Centre and the Nicholson Road Health Centre. 63 Mr Lohman disagreed that the site is inappropriate for residential development because of impacts associated with the adjoining industrial use and the freight rail line. Mr Lohman pointed out that light industry is, by definition, required to retain all emissions and hazards on site, or at least within the zone. Emissions should therefore not encroach on the site. 64 Mr Lohman described the adjoining light industrial premises as largely commercial and, in any case, well set back across the road and restricted from using setback areas for industrial activity. The proposed development will feature a 2.5 metre high wall along the Tulloch Way boundary, and the orientation of bedrooms and balconies are inward looking, such that there is limited potential for nuisance impact from the industrial zone. 65 Mr Lohman provided advice in respect of the convenience of vehicle access via the industrial estate. He commented that it was not uncommon for road users to park informally on road verges and road pavements due to lack of formal parking. This occurs commonly in other zones. The light industry zone does not otherwise create an unattractive environment for residents to pass through. 66 Pedestrian access is to be provided from the proposed development to Nicholson Road along the northeastern boundary of Lot 887. Mr Lohman commented that although the pathway would be fenced to ensure privacy of the Reception Centre, it could be open to the northern side to allow for passive surveillance. 67 With respect to the development of the proposed Nicholson Road railway station, Mr Lohman advised that amelioration measures in respect to noise should be put in place as part of the planned development of the station. This is required by clause 5.2.3 of SPP 5.4. 68 Mr Lohman drew attention to the fact that in the near vicinity, residential development exists along the eastern side of the rail line and the respondent has, in 2006, approved a multiple dwelling development near the Thornlie railway station with dwelling units as close as 33 metres from the freight line. 69 Based on these observations and because the proposal complies with the noise criteria of SPP5.4, Mr Lohman concluded that the amenity of prospective residents will not be adversely impacted on by noise associated with the railway line or the light industrial area. 70 Mr Lohman was of the opinion that the proposal should not be considered premature in the context of planning for the Nicholson Road railway station. He pointed to the concept design plans prepared by the PTA which indicate that planning is more advanced than the 2031 time horizon set out in the Department of Transport's draft Public Transport for Perth in 2031 document. Mr Lohman emphasised that State policies encourage residential development in close proximity to public transport infrastructure and that development of high density residential housing in this location would, of itself, encourage earlier development of the public transport infrastructure. Mr Lohman noted that the site is already well serviced by a bus link to the Thornlie railway station. 71 Concerning amenities and services to support the proposed development, Mr Lohman drew attention to a plan that he had prepared which illustrated recreation, retail, education and other service facilities within reasonably accessible distance. Mr Lohman affirmed, therefore, he was of the view that there are sufficient services and amenities to support the development. 72 Mr George Watts, a senior acoustic consultant employed by Herring Storer Acoustics, provided evidence and an acoustic assessment report of the proposed development prepared on behalf of the applicant. 73 The conclusion of Mr Watts' report states: The noise modelling indicates that for the future train movement scenario noise received within the proposed subdivision from trains travelling along the rail line does exceed the WAPC SPP5.4 - Noise Limits. Therefore Quiet House design is required to achieve compliance with the internal acoustic criteria. Compliance with the outdoor noise criteria target is achieved at all locations (including above ground floor) as the orientation of balconies are such that they do not face the train line. 74 Mr Watts observed that 'Quiet House' design principles have been incorporated into the design of the proposed development. 75 Mr Watts' report also states: Ground vibration measurements carried out adjacent to the railway line recorded levels that are relatively high, however the amplitude drops rapidly with distance from the railway line. The vibration measurements show that at 17 metres from the railway line ground vibration complies with the appropriate criteria. 76 Mr Watts asserted that DEC's investigation into noise and vibration is not pertinent to the applicability of SPP 5.4. In Mr Watts' opinion, the conclusion that the LFN is significant is not substantiated, as generally all but the most stringent of criteria is satisfied. Further, Mr Watts questioned the circumstances of particular measurements of noise in the investigation, and the relevance and practicability of applying certain stringent international noise measurement standards, referred to in the investigation, to 'WA conditions'. Mr Watts noted that the application of SPP 5.4 to assess compliance with noise limits for developments such as this have provided an acceptable level of amenity in the past. 77 Mr Watts acknowledged that his report had not accounted for potential noise nuisance associated with the proposed Nicholson Road railway station, busway and carpark. However, he did not think that the impact would be such that it could not be managed satisfactorily by implementing some marginal design modifications of the proposed development. 78 Mr Tony Shaw, a traffic engineer and director of Shawmac Consulting Civil and Traffic Engineers, provided evidence on behalf of the applicant. Mr Shaw's evidence was substantially based on a 'Transport Statement' report in respect of Lot 887 Nicholson Road undertaken in February 2014. 79 Mr Shaw's report concluded that '[b]ased on the assessment of traffic generation [as proposed through the light industrial area] … there will be no unacceptable impact on the adjacent road segments'. 80 Mr Shaw was unaware of the draft Nicholson Road Railway Station and Carpark Concept Plan (Concept Plan), and this prospective traffic function had not been considered in the 'Transport Statement'. 81 Although it also was not investigated in the 'Transport Statement', Mr Shaw was of the view that although Nicholson Road was a four lane dual carriageway carrying some 22,000 vehicles per day, pedestrian and cycle crossing was reasonably facilitated by the configuration of the carriageway including the safety refuge of the central median strip. He also commented that pedestrian and cycle movement through the industrial area would, in his opinion, be low risk because of the relatively low speeds of traffic in the environs.
Draft conditions of approval 82 Draft conditions of approval were prepared by the respondent. 83 All of the conditions were agreed between the parties with the exception of particular conditions concerning the following: • Specifications of fencing of the southeastern boundary of the site. • Weather protection awnings over the accessway abutting certain dwelling units. • A legal agreement indemnifying the Council in respect of waste removal services. • Construction of a pedestrian footpath through the light industrial area.
Site view 84 A visit to the site was undertaken on the first morning of the hearing in order to appreciate the nature of the land and its surrounds and the characteristics of roads and paths that serve it.
Analysis 85 The applicant's argument supporting the proposed development is that the location for high density residential development coincides with strategic objectives promoting the efficiency and effectiveness of public transport infrastructure, in particular, a passenger railway station service at Nicholson Road. 86 The applicant acknowledges a level of impact on the amenity of the proposed development as a consequence of the presence and function of adjoining land uses, but asserts that the impact is manageable and acceptable and, in any case, is outweighed by the particular amenity and advantages associated with future rail transport connectivity. 87 The respondent's argument, on the other hand, emphasises the poor amenity qualities of the location and the prematurity of the proposal in relation to the future establishment of the railway station. 88 Considering the location in terms of access, convenience and connectivity, the Tribunal acknowledged the applicant's argument that the proposal is substantially consistent with particular strategic planning objectives linking high density residential development with public transport infrastructure. This will be a significant advantage in terms of convenience and connectivity of the proposed development. The applicant presented argument that endorsement of similar juxtapositions of proposed high density residential development with rail facilities at Thornlie railway station and Currambine railway station reinforced the desirability of such a land use relationship. 89 The respondent, however, pointed to the uncertain time line of planning for, and establishment of, the passenger rail extension and station at Nicholson Road. The prospect of waiting until 2021 at the earliest, but with no certainty that the rail service would commence before 2031, would leave the residential development devoid of its future connective advantage for many years. 90 On the evidence before it, especially the draft Concept Plan, the Tribunal has some confidence that the passenger rail service is being actively pursued with a view to a medium term implementation. There is no way, however, of yet being able to predict with any certainty how long that medium term may be and how long it would be reasonable for residents of the proposed development to be prepared to wait. 91 The Tribunal was made aware by the planning expert witnesses, in the course of examination, that apart from an enquiry by design workshop, there was otherwise no formally adopted coordinated plan for a 'Transit Oriented Development' precinct at Nicholson Road. The Tribunal views this as problematic in that it is therefore not possible to consider the proposed development in the context of a comprehensive structure plan for the precinct as envisaged under DCP 1.6 (4.6). 92 Both the evident lack of comprehensive precinct planning and the uncertainty in relation to timing of the proposed rail service serve as reasons to discourage the exercise of a discretion in favour of a use of land which is so apparently focussed and reliant on the public transport function. 93 TPS 6 nevertheless permits a discretion to allow the proposed development and, accordingly, the Tribunal should weigh the arguments as to whether the proposal is consistent with the purpose of the prevailing Mixed Business zone. The objective for the zone seeks 'to provide for a variety of commercial activities including showrooms and other forms of bulk retailing/display in strategically located areas of the City'. 94 The applicant cited Council planning reports which identified the expectation of residential development within the Mixed Business zone. The applicant also emphasised that there is no express wording in the Scheme that requires that a residential use has to be associated with any commercial component. Accordingly, the applicant argued, the proposed multiple dwellings are an allowable use and should be deemed to conform with the zone objective. 95 While acknowledging the discretionary allowability of the use, the Tribunal is concerned, however, that not one of the particular uses identified in the specific wording of the Mixed Business zone objective is manifested in the proposed development. Indeed, in the entire zone encompassing Lot 887 Nicholson Road, the only business that would be present within it, if this residential development was approved, would be the Reception Centre. 96 The wording of the objective describes the zone as a 'strategically located area of the City'.In this circumstance, the Tribunal would then expect that the nature of uses in such a limited zone area should be carefully concentrated to reflect the clearly described zone intentions for land uses in the Mixed Business zone. The proposed residential development does not appear to assist this aim. In the circumstances, the Tribunal finds itself unable to agree with the applicant's argument that the proposed development is consistent with the Mixed Business zone objective as described in TPS 6. 97 Turning to the question of vehicle access, the Tribunal was satisfied that Mr Shaw, the expert traffic engineering witness, demonstrated that there was an adequate capacity of the light industrial area road system to service the proposed development. The respondent's argument as to obstacle and inconvenience was not apparent to the Tribunal, certainly on the occasion of the weekday business hours site view. 98 The proposition for pedestrian and cycle access through the industrial area would also appear to the Tribunal to be achievable (subject to path construction), but the area is not a particularly attractive environment for recreational walking or cycling. 99 Indeed, the conclusion the Tribunal reaches in relation to all modes of transport through the industrial area is that it is practical, safe and adequate, but certainly not a visually attractive environment for access contributing positively to the amenity of the proposed residential development. 100 The proposed pedestrian path along the northeastern boundary of Lot 887 Nicholson Road, although lengthy, narrow and not particularly attractive, would serve functionally to connect the land to Nicholson Road. 101 The Tribunal has doubt, though, as to the convenience and safety for pedestrians crossing Nicholson Road, even though a median strip assists with provision of a halfway refuge. The width of the carriageway pavements, high traffic volume and relatively high speed of vehicles presents a discouraging obstacle to pedestrians seeking to cross conveniently. In this regard, it would be anticipated that the mix of one, two and three bedroom dwellings in the proposed development will cater for a range of resident occupancy types, including some families with children. Even if crossing Nicholson Road is not an insurmountable hazard, the perception of it as one would likely discourage residents, and particularly families with children, to use this connection to important and desirable community facilities and other destinations across Nicholson Road. In the Tribunal's opinion, it is more than likely that journeys from the land to destinations beyond Nicholson Road would be undertaken by car. 102 It is apparent to the Tribunal, therefore, that apart from the prospect of convenient access to train travel, the proposed residential development will, in fact, be relatively isolated by distance and obstacle from easy and convenient walking and cycle connection to the bulk of the residential neighbourhood and its services and facilities. 103 The Tribunal observes, again, that there is, as yet, no precinct plan, as identified under Policy DCP 1.6, to coordinate land use and transport planning that should desirably, in the interest of orderly and proper planning, address the issue of accessibility and connectivity within, and to, the transit oriented precinct. 104 On the question of surrounding land uses and their relationship with the proposed development, the Tribunal was furnished with expert advice in respect of potential noise impacts associated with the adjoining railway line. In summary, Mr Watts and Mr Guo, the two acoustic experts, agreed that the proposed development, incorporating 'Quiet House' design principles, would conform with rail transport noise criteria set out by SPP 5.4. 105 Where the experts differed was in respect of the impact of low frequency noise emanating from passing freight trains. Mr Watts considered that LFN was not a significant factor, while on the other hand Mr Guo did consider it so, based on his investigations for the DEC into complaints of nuisance not far from and in similar terrain to the proposed development. 106 In this circumstance, the Tribunal finds itself uncertain and unable to resolve the difference of opinion of the experts on the significance of LFN to the proposed development, other than to adopt a cautious stance pending further investigation by DER. 107 Potential noise nuisance from the light industrial area appears to the Tribunal to be manageable through the adoption of design features in the development to minimise the penetration of noise from external sources. It remains, however, a concern that application of reg 10 of the Environmental Protection (Noise) Regulations 1997 (WA) may allow existing industries to emit higher noise levels, potentially affecting the amenity of the development. 108 The Tribunal heard, in the course of the hearing, that no consideration of noise or nuisance associated with the proposed bus/rail transfer station and carpark had been considered, although Mr Watts assured that the likely nuisance impact was minor because of the inward orientation of most of the dwelling units. 109 Overall, there remains some doubt as to the effect of noise generation from surrounding land uses on the proposed development and, in this regard, the Tribunal, at this stage, prefers to heed DEC's advice that the site 'remains noise affected and may be considered only marginally acceptable from the noise standpoint; and in our view is not a preferred site for residential development'. 110 The Tribunal, in consideration of the relationship of the land with its surrounds, noted that the design of the proposed development was almost wholly inward looking, or introverted. It appears that such a design is intentional in order to avoid possible externally generated nuisance. It also avoids an outlook to what might be seen as an unattractive surrounding landscape comprising industrial premises, a rail line, a warehouse wall and, in the future perhaps, a railway station carpark. There is little in the way of an attractive sense of place fostered by these surrounds. 111 It appears to the Tribunal that the introverted orientation of the proposed dwellings, while reflecting a sensible design solution to the perceived problems, nevertheless underlines the very limited residential amenity qualities of the land in the context of its surrounds. 112 Summarising these various considerations, it is apparent to the Tribunal that the proposed residential development fails to satisfy the relevant tests of amenity and connectivity expected of it, and the proposal does not, in the opinion of the Tribunal, conform with key instruments of the relevant planning framework.
Conclusion 113 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the development application for 108 multiple dwellings at No 459 (Lot 887) Nicholson Road, Canning Vale should be dismissed. 114 In this circumstance, it is not necessary for the Tribunal to adjudicate on the disputed draft conditions of approval.
Order 115 The Tribunal therefore makes the following orders: |