Lenzo and City of Stirling
[2007] WASAT 186
•6 June 2007
LENZO and CITY OF STIRLING [2007] WASAT 186
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 186 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:354/2006 | 19 JANUARY 2007 6 MARCH 2007 | |
| Coram: | MR P McNAB (MEMBER) | 6/06/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review was allowed | ||
| B | |||
| PDF Version |
| Parties: | GUISEPPE LENZO CITY OF STIRLING |
Catchwords: | Town planning Child care centre Residential zone Residential uses adjoining site Preference for commercial and similar centres Location on road likely to become a local distributor road Whether appropriate site Usage of roads Traffic and some potential noise issues Impact on amenity of neighbours minimal Application of local Child Care Policy Application of draft WAPC Bulletin Officers below recommending approval Tribunal found proposal largely consistent with the planning framework and not incompatible with zoning Preferred locational criteria of policy only not met Tribunal requiring a compelling case in opposition in such circumstances Case in opposition here not made out Application for review allowed Approval granted on agreed conditions |
Legislation: | City of Stirling District Planning Scheme No 2, Table 2 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 242 State Administrative Tribunal Act 2004 (WA), s 31 |
Case References: | Ienco and City of Melville [2007] WASAT 56 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and the matter is sent back to the respondent for reconsideration with a direction that the respondent shall issue an instrument of planning approval consistent with the reasons of the Tribunal, approving the proposed development in terms of the applicants' modified proposal and the agreed conditions |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LENZO and CITY OF STIRLING [2007] WASAT 186 MEMBER : MR P McNAB (MEMBER) HEARD : 19 JANUARY 2007
- 6 MARCH 2007
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Child care centre - Residential zone - Residential uses adjoining site - Preference for commercial and similar centres - Location on road likely to become a local distributor road - Whether appropriate site - Usage of roads - Traffic and some potential noise issues - Impact on amenity of neighbours minimal - Application of local Child Care Policy - Application of draft WAPC Bulletin Officers below recommending approval - Tribunal found proposal largely consistent with the planning framework and not incompatible with zoning - Preferred locational criteria of policy only not met - Tribunal requiring a compelling case in opposition in such circumstances - Case in
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opposition here not made out - Application for review allowed - Approval granted on agreed conditions
Legislation:
City of Stirling District Planning Scheme No 2, Table 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The application for review was allowed
Category: B
Representation:
Counsel:
Applicant : Mr V Butterley (Acting as Agent)
Respondent : Mr P Kotsoglo (Acting as Agent)
Solicitors:
Applicant : Whelans Pty Ltd
Respondent : City of Stirling
Case(s) referred to in decision(s):
Ienco and City of Melville [2007] WASAT 56
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Summary of Tribunal's decision
1 In this review, the Tribunal considered whether a proposed child care centre on a large residential block on a road which was likely to become a local distributor road satisfied the relevant planning framework of the City of Stirling. Such centres were not prohibited in this particular residential precinct. They were a discretionary use in respect of which planning approval could be given under the zoning for the area.
2 Of main concern in the review was the consistency of the proposal with the City's local Child Care Policy. It turned out that apart from one matter, the preferred locational criteria, the applicant's proposal was very largely consistent with that policy. In general, the proposed use of the land was also consistent with relevant development and design principles. The Council's officers had recommended approval of the centre.
3 The Tribunal found that concerns about the possible noise emanating from the premises were marginal at best, and could be ameliorated by the imposition of proper conditions. Any traffic increase would be a very small proportion of proposed future traffic use, use which would change the status of the road to one preferred under the local policy.
4 The Tribunal found that, as here, where there was very high compliance with the planning framework, in effect minimal amenity concerns and only a generalised preference for another location under the Policy, a compelling case in opposition would be needed to prevent the centre from being built. No such case was apparent here and thus the City's decision was reversed. Planning approval was given to the applicant on certain agreed conditions.
5 The Tribunal's reasons for decision were delivered orally and an edited version of them appears below.
The proposal
6 An application for planning approval was lodged with the City of Stirling (respondent) for a child care centre in May 2006. The proposal foreshadowed an early learning centre catering for children aged three to five seeking a "school experience", one that was "not currently being provided in the area". The applicant was Mr G Lenzo (applicant). There was some amendments to the proposal, but the Tribunal will first consider the original proposal.
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7 The original proposal comprised a new building, an outdoor play area, a carpark with a ratio of one bay per seven children plus one disabled bay and two crossovers. It was thus necessary to demolish a single-storey existing duplex residence on the subject land. Landscaping was proposed. (The Tribunal notes that, with some minor modifications, the respondent's officers considered this landscaping as satisfactory.)
8 The original operational criteria for the centre included opening hours from 8 am to 4.30 pm, Monday to Friday. It originally comprised some five staff, a director, an early childhood teacher and some qualified carers. In the original proposal it was proposed that the centre cater for a maximum number of 37 children.
9 In the proposal it was specifically noticed that Hamilton Street, where the subject land is, is not a main road. Hamilton Street is not busy, but it "does carry traffic exiting from the nearby Princeton and Roselea Estates". It was also noted that the subject land is in close proximity to schools, the Mitchell Freeway and the Osborne Park Industrial area.
10 A modified proposal was submitted by the applicant's following proceedings in the Tribunal in January 2007 and, in essence, that proposed a reduction in the number of children from 37 to 30, with a change in some fencing or wall design to further reduce noise.
The subject land
11 The subject land is described as Lot 78 on Diagram 37347, being all of the land comprised in Volume 1324 Folio 782, with the street address of No 58 Hamilton Street, Osborne Park, Western Australia. It is a large block, some 911 square metres in size and has a 2 metre fall which is evident from the rear of the subject land downwards to the front, namely, Hamilton Street.
The precinct
12 The property is on the eastern side of Hamilton Street, some 300 metres north of Hutton Street, which is a major traffic corridor. The subject land is currently developed with a residential property (duplex), with suburban dwellings on either side. It has group dwelling (triplex) potential. As mentioned, a large residential development to the south-west between Hamilton Street and the Mitchell Freeway exists, namely, the Princeton Estate. The Tribunal accepts the applicant's
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- representative, Mr Butterley's, description of the immediate neighbourhood as:
"Characterised by a mix of low-density brick and tile housing typical of the 1960s and 1970s and more contemporary group dwellings (triplex)."
13 In May 2006, the applicant applied to the respondent to demolish an existing duplex dwelling and build the proposed child care centre, supplying some supplementary information in June 2006. The applicant further supplied a comprehensive traffic study of the Princeton Estate in July 2006. Various neighbours and residents were surveyed by the respondent in June 2006. All of this material was considered by the respondent in September 2006 with the officers recommending approval. The application was refused by the respondent. An application for review to this Tribunal was made in October 2006. The matter was eventually heard in January 2007 and March 2007.
14 There was also, in January 2007, a "s 31" reconsideration on the modified proposal (see s 31 of the State Administrative Tribunal Act 2004 (WA)). This was the modified proposal mentioned above. The opportunity was taken of also obtaining further information on the nearby Princeton Estate, especially as to traffic flow implications.
15 The modified proposal was not accepted by the respondent.
Planning framework
16 The subject land is zoned urban under the Metropolitan Region Scheme and is zoned Residential with an R30 density coding, that is, a low to medium density coding under the City of Stirling District Planning Scheme No 2 (DPS 2). Under DPS 2, it is zoned as an "AA" use, that is, the zoning is not necessarily incompatible with a child care centre and such zoning contemplates the same, with approval after advertising and consideration under DPS 2. Here, apart from minor rear setback variation (not relevantly in issue), the proposed child care centre meets all of the development standards in Table 2 of DPS 2.
17 The principal planning instrument is the respondent's policy titled Child Day Care Centre Developments (Policy N101501). Policy N101501 was adopted in 1996 with various amendments to June 2005.
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18 Before turning to Policy N101501, some matters not in dispute may be noticed. First, the Council officers considered that no issues related to streetscape, harmony, bulk and scale arose out of the proposal. The minor rear setback variation has already been mentioned and noise was not considered to be a problem with a 1.8 metre high masonry fence provided along the side and rear boundaries behind the building setback line. Further developments in the modified proposal enhance the applicant's position as regards noise.
19 The Tribunal was also provided with two Western Australia Planning Commission (WAPC) policies. First, is the draft Bulletin No 72 – Child-Care Centres (draft PB 72). The status of, and assistance to be garnered from, draft PB 72 is referred to in Ienco and City of Melville [2007] WASAT 56 to which reference was made during the hearing.
20 Also, the Tribunal was provided with policy DC 2.6 – Residential Road Planning. Of importance is the view there expressed (at par 3.2 and following) as to local distributors and their effective maximum numbers of vehicles per day of 3000 to 7000 vehicles.
21 The Tribunal will return to traffic issues further, below.
The respondent's case
22 Mr Kotsoglo appeared and gave expert evidence for the respondent. In summary, his main evidence was that the "locational criteria" under Policy N101501 was not met; that there was, in effect, unreasonable impact on amenity, particularly as regards vehicle movements and related matters; and finally, that the objections from neighbours supported these concerns.
23 Mr Kotsoglo also claimed that, judged by the guidance offered by draft PB 72, the proposal was ad hoc rather than one strategically placed to provide maximum benefit to the community. He further argued that the proposal was not within, or close to, commercial or recreational community nodes in accordance with draft PB 72, and otherwise the proposal was incompatible with a low density residential zone.
The applicant's case
24 Mr Butterley gave expert evidence for the applicant. In particular, he stressed the substantial compliance of the proposal with Policy N101501 and the development standards in DPS 2. He pointed out the low impact of the modified proposal as regards the reasonable amenity expectations of those living in the precinct and the community demand for such a
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- facility. On a proper assessment of matters of noise, traffic movement, access of vehicles and design, the proposal, in his opinion, justified the exercise of planning discretion in his client's favour.
25 The applicant's case was supported by evidence of Mrs Elena Capolingua. Mrs Capolingua is a part-owner of the subject land and the proposed owner/operator of the proposed child care centre business. She gave evidence regarding her qualifications and experience, and the proposed educational philosophy of the business. She also outlined the noise-ameliorating steps that were to be incorporated into the operation of her business. Her evidence was not relevantly challenged by the respondent and may be accepted.
Objecting neighbours
26 Approximately 75 neighbours were consulted by the respondent, in addition to consultation by general advertisement. Out of this process, some five objections were received. These neighbours' concerns may be briefly summarised as follows:
• There was concern about the existing level of demand for such a centre;
• There were generalised concerns about traffic and safety in particular, an increase in vehicles and noise was suggested;
• There was concern about whether the service hours of the proposal were in fact too restricted;
• There were concerns about loss of income from tenants who may be affected by an alleged amenity impact; and
• There was a question raised about why the proposal was not planned for in relation to the Princeton Estate.
27 The Tribunal also refers to a short summary of such concerns in the officers' report of 12 September 2006. No objector sought leave to make a submission under s 242 of the Planning and Development Act 2005 (WA). None of them were called by Mr Kotsoglo.
28 The Tribunal turns to these amenity matters, so far as they relate to matters of planning law.
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Noise
29 Noise was largely an incidental objection by some of the neighbours or affected properties. The officers advised in their report below that:
"The proposed development was referred to the City's Health and Compliance Unit for assessment. There was no requirement for submission of an Acoustic Consultant's report by the applicant."
30 No noise consultant's evidence was led and noise is, in the circumstances of the case, not considered by the Tribunal to be a material issue in this review.
Traffic issues
31 As already mentioned, the applicant submitted a report (Miller Report) from an expert, namely Mr Lachlan Miller of L Miller and Associates, in its early consideration by the respondent. Mr Miller also gave evidence to the Tribunal. The Council's officers noted that the City's engineering department thought that this report "satisfactorily addressed relevant traffic issues". Of material interest is that the report notes that Hamilton Street is an undivided two lane road. It is 7.5 metres in width with a 1.2 metre footpath on the eastern side. At par 2.3 of the Miller Report it is said that:
"The major roads that connect to Hamilton Street are Hutton Street to the south and Karrinyup Road to the north. Both intersections are currently under [s]top sign control with right turn lanes on the major roads. It is understood that the intersection of Hamilton Street and Hutton Street is to be signalised in the future as a condition of the new residential subdivision."
32 Then it goes on to say:
"Hamilton Street is currently classified as a Local Access Road but is likely to be reclassified to a Local Distributor after the completion of the large residential development between Hamilton Street and the Mitchell Freeway. Traffic generated by the new development will not have direct access onto Hutton Street but will use Hamilton Street via Tivoli Street which is currently used by construction vehicles and will be a public road in the future. Hamilton Street will then have the
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- characteristics of a Local Distributor because of its traffic role in providing access to local road network."
33 Then it goes on to make the observation that:
"Hamilton Street is currently classified as a Local Access Road but is likely to have a Local Distributor function in the future and therefore will be the preferred road type under the City's [Policy N101501]."
34 Upon various assumptions set out at par 3.3 of the Miller Report, the following conclusions are reached (at par 4.1 of that report):
"The child care centre is expected to generate a maximum of 127 trips during the day, as indicated in Section 3.3, with arrivals and departures split evenly from the north and south. This will result in a traffic increase of approximately 64 veh/day on Hamilton Street on either side of the development. Therefore, the maximum increase in traffic on Hamilton Street, which currently carries about 1000 veh/day will be about 6% but this will reduce to less than 2% in the future when the traffic volume increases to about 4000 veh/day to the new residential development between Hamilton Street and Mitchell Freeway. The expected increase in traffic is likely to have very little impact on the traffic safety and operation of the road. Traffic signals at the intersection of Hamilton Street and Hutton Street are required as a condition of the residential subdivision and will provide additional capacity and safety of the intersection for vehicles leaving Hamilton Street."
35 These observations may generally be accepted.
The Princeton Estate
36 The Princeton Estate (estate) development of approximately 600 to 700 lots is being built in stages. The estate is modern high density suburban infill and is approximately 75% complete and does not appear to have any zonings or provisions in its planning compatible with a child care centre as proposed here. It will form a catchment area relevant to the applicant's proposal. It will undoubtedly, in the Tribunal's view, increase vehicle movements on Hamilton Road in due course.
37 There was further information supplied to the Tribunal by the parties after the adjourned hearing in relation to the Princeton Estate but that
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- additional evidence does not, in the Tribunal's view, materially affect the evidence of Mr Miller, except to broadly confirm the estimates or scenario outlined in his report or the applicant's case.
Application of Policy N101501
38 The alleged non-compliance with Policy N101501 was the main reason that the respondent refused planning approval. Assuming that Hamilton Street will in due course become a local distributor road or equivalent, which seems probable, the proposed child care centre appears to comply in all respects with Policy N101501, apart from the preferred locational criteria which indicates a preference for locations in or abutting commercial centres or, more specifically, locations adjacent to non-residential uses (for example, a medical centre). Policy N101501 talks only of preferred locations and then, in fairly general terms. It also points to a demonstration of no undue impact upon amenity. The WAPC's draft PB 72, although more nuanced, does not, in the Tribunal's view, substantially add to these considerations. As Ienco v City of Melville makes clear, there is no presumption that a residential zoning is necessarily incompatible with a child care centre.
39 Consequently, where, as here, a child care centre is permitted in a residential zone (if approved) and overwhelmingly compliant with the regulatory regime and substantially complies with the specific child care centre policy, it would require, in the Tribunal's view, a reasonably compelling contrary case to refuse planning approval. Here, there is no such compelling case in opposition to the proposal. Such amenity concerns as there are may be satisfactorily addressed by conditions.
40 In the Tribunal's view, the planning officers below were correct in their recommendation and their view of the application. Consequently, the review should be allowed and planning approval granted.
41 The Tribunal notes, in relation to the draft conditions, that there were 10 agreed conditions forming the whole of exhibit 3 in the proceedings, as per the officers' recommendation below. These matters will form part of the conditional approval.
42 Consequently, there will be orders that the application for review be allowed and that the decision under review be set aside and the matter sent back to the respondent for reconsideration with a direction that the respondent shall issue an instrument of planning approval consistent with reasons of the Tribunal approving the proposed development in terms of the applicant's modified proposal and the agreed conditions.
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Orders
43 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is allowed.
2. The decision under review is set aside and the matter is sent back to the respondent for reconsideration with a direction that the respondent shall issue an instrument of planning approval consistent with the reasons of the Tribunal, approving the proposed development in terms of the applicants' modified proposal and the agreed conditions.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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