LEVI and CITY OF STIRLING
[2011] WASAT 14
•28 JANUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LEVI and CITY OF STIRLING [2011] WASAT 14
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 24 AUGUST 2010
DELIVERED : 28 JANUARY 2011
FILE NO/S: DR 478 of 2009
BETWEEN: BON LEVI
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Classification of use - Use as a massage business
Legislation:
City of Stirling District Planning Scheme No 2, cl 4.2.7, cl 4.3.2, cl 4.3.3, cl 10.2
City of Stirling Local Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application is approved subject to conditions
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr J Meggitt (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGRA 431
Joubert and City of Joondalup [2005] WASAT 330
Woolworths and the City of Joondalup [2009] WASAT 41
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The City of Stirling refused an application by Mr Bon Levi for a change of use from 'Shop' to 'Therapeutic Massage' in a premises at No 22C Muriel Avenue, Innaloo.
The City of Stirling refused the application for the reasons that it resulted in a parking deficiency, would have an adverse impact on the amenity of the locality and was not in line with orderly and proper planning.
Based on the evidence put forward by the City of Stirling, the Tribunal could not be satisfied that there would be any adverse impact on amenity, a deficiency in parking or that the development would not be in line with orderly and proper planning. The Tribunal granted the application for a period of one year subject to conditions.
Background
Mr Bon Levi (applicant) submitted an application to the City of Stirling (respondent, City or Council) for retrospective approval for a change of use from what had been a shop to therapeutic massage.
At the time the application was made, it was considered and dealt with under the provisions of the City of Stirling District Planning Scheme No 2 (DPS 2) and was categorised by the City's officers as falling within the use class of 'personal services' which was a 'P' (permitted) use in the relevant zone under DPS 2.
Following consideration of the matter, Council resolved to refuse the application and the applicant lodged an application for review with the Tribunal on 3 December 2009.
Following mediation in the Tribunal, a management strategy for the proposal was prepared and furnished to the City and an amended application was reconsidered by Council on 16 June 2010 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), following which Council again refused the application for the following reasons:
(a)the proposal results in a parking deficiency on the subject lot as required by the City's parking provisions in the District Planning Scheme No 2;
(b)the proposal has a significant adverse and detrimental impact under essential amenity of the locality in terms of hours of operation and noise; and
(c)the development is inconsistent with the grounds of orderly and proper planning as it is incompatible with the setting and has an unacceptable relationship to the residential development in the locality.
Following that refusal, the matter was programmed for final hearing by the Tribunal which took place on 24 August 2010.
Subject site
The site the subject of the review is located at No 22C (Lot 101) Muriel Avenue, Innaloo and is one of a group of five commercial lots creating a small commercial strip.
The subject lot is divided into three separate tenancies with their own entrance, floor area and toilet facilities. The subject premises comprises 73.13 square metres of floor area plus 47 square metres of additional outbuildings with the other two tenancies being a beauty therapy centre and an office/workshop.
In the remainder of the commercial strip there is a delicatessen, a health and beauty salon, a child psychologist and offices.
There is vehicular access/egress to the rear of Lot 101 via Azurit Lane, which is classified as a dedicated laneway and is currently sealed and drained. Within the road reserve fronting the premises, there are 22 public parking spaces which are shared by the five commercial lots at the centre.
Planning framework
When the matter was first considered by Council and refused in October 2009 and again when it was reconsidered and refused in June 2010, the relevant town planning scheme under which the matter was considered by Council was DPS 2. However, on 6 August 2010, the City of Stirling Local Planning Scheme No 3 (LPS 3) was gazetted and it is under that scheme that the matter is to be considered by the Tribunal, as it is the current and relevant scheme under which planning applications in the City fall to be considered.
At a State level, the site is zoned Urban under the Metropolitan Region Scheme. At the time the matter was considered by Council in October 2009 and reconsidered in June 2010, the relevant State planning policy that dealt with local centres was the Statement of Planning Policy 9 Metropolitan Centres Policy (SPP 9).
However, the Activity Centres for Perth and Peel Policy (Policy) was gazetted on 31 August 2010 replacing SPP 9 and it is under that new State Policy that the matter will also be considered by the Tribunal.
Appendix 2 of that Policy outlines the function of local centres as being:
... spread throughout Perth and Peel with the primary intention of providing shopping facilities to serve the daily needs of the local community.
As stated earlier, when the application was first submitted to the City, the City's officers considered that the development fell within the use class 'personal services' which was a permitted use in the business zone under DPS 2, which is the relevant zone for the subject site.
'Personal services' was defined in DPS 2 as:
... The use of land or buildings for which provision of services of a personal nature and includes a hairdresser, beauty therapist, manicurist and the like. Does not include a shop, restricted premises or a building use for any medical purposes.
When the matter was reconsidered by Council in June 2010, it was again classified by the City's officers as being a permitted use under the same definition.
That definition of 'personal services' has been amended in LPS 3 and now reads:
Mean premises in which maintenance, repair or adornment of personal apparel or equipment is provided to members of the public and which do not adversely affect the amenity of the locality, and include dry cleaners, Laundromats, watch repairers, tailors, embroiderers, key cutters and engravers.
However, LPS 3 has an additional definition of 'personal care services' which is defined as:
Means premises used for the provision of services of a personal nature involving care and/or treatment of clients, and includes hairdressing, beauty, therapy, manicure and massage, but does not include consulting rooms, medical centre or sex services involving prostitution;
Under DPS 3, both 'personal care services' and 'personal services' are permitted uses in a local centre.
Clause 4.3.2 of DPS 3 explains that the 'P' symbol when used in the zoning table means 'that the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme'.
Clause 4.3.3 of DPS 3 further states:
A change in the use of land from one use to another is permitted, if
a)the Council has exercised its discretion by granting planning approval;
b)the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in the Table 1 Zoning Table and the proposed use complies with all the relevant development standards and any requirements of the Scheme;
c)the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot; or
d)the change is to an incidental use that does not change the predominant use of the land.
Clause 10.2 of DPS 3 outlines the matters to be considered by Council when considering an application for planning approval and includes:
(a)the aims and provisions in the Scheme and the objectives of the relevant zone and any other relevant town planning schemes operating within the Scheme area (including Metropolitan Region Schemes);
(b)[...] orderly and proper planning including any relevant proposed town planning scheme or amendment, or region scheme or amendment, which, has been granted consent for public submission to be [...];
(c)any approved statement of policy of the Commission;
...
(e)any approved policy or strategy of the Commission and any relevant planning policy adopted by the [government of the day?];
(f)any Local Planning Policy adopted by Council under clause 2.4 ...
...
(i)the compatibility of a use or development with its setting;
(j)any social issues that have an effect on the amenity of the locality;
...
(n)the preservation of the amenity of the locality;
...
(y)any relevant submissions received on the application;
...
(zaa)any other planning consideration the Council considers relevant.
Clause 4.2.7 of DPS 3 outlines the objectives of a 'local centre' zone as follows:
(a)To provide for a limited range of small scale retail, commercial and community facilities to meet the day to day needs of the immediate neighbourhood.
(b)To ensure safe and convenient access to facilities, in an environment which is conducive to pedestrian movement.
(c)To ensure development is sighted and designed so as to reinforce a sense of place and attractive streetscapes.
Respondent's evidence
Before the Tribunal, the City was represented by Mr John Meggitt, a town planner, who acted as both advocate and expert witness for the Council.
Mrs Liza Harvey, the Member of the Legislative Assembly for Scarborough, which includes the area the subject of the application was also called as a witness by the respondent.
At the hearing, it was agreed that the principal issues to be considered were:
1)the proper classification or characterisation of the proposed use;
2)the issue of car parking; and
3)the impact of the proposed use on the amenity of the locality.
In relation to each of those three issues, the evidence presented by the respondent was as follows.
Classification of use
Although the City's officers had, on two occasions, categorised the proposed use as falling within the definition of 'personal services' under DPS 2, before the Tribunal, the respondent contended that the applicant had not provided sufficient information to characterise the use, that it did not fall within the definition of 'personal care services' under LPS 3 and should be characterised as a 'use not listed'.
Mr Meggitt, in his statement of evidence at paragraphs 72 to 77, took issue with the applicant's description of his service as genuine SwedishBowen therapy massage and highlighted on a number of occasions that the individuals supplying the massage would be wearing bikinis or lingerie and submitted that rather than being for the care and treatment of clients, it would be more in the way of titillation and entertainment, and that is how it should be classified.
Amenity
It was acknowledged by all parties that prior to the retrospective application being made, the business had been conducted on the premises for a short period of time, as the applicant had understood that it was permitted and planning approval was not required.
It was also acknowledged that the business had now ceased pending the outcome of these proceedings.
In his evidence, Mr Meggitt explained that prior to the matter first being considered by Council in June 2010, the City had received a number of complaints about the operation of the business which included:
•loud music emanating from the premises;
•antisocial behaviour;
•inappropriate trading hours; and
•undesirable people being attracted to the area.
When the matter went back before Council in June for reconsideration, the applicant had prepared a Management Strategy to address those issues however, Mr Meggitt, at para 100 of his statement of evidence, stated:
While the applicant has prepared a management plan for the proposed centre, it is not evident that the applicant has the capacity or staff to adequately ensure that the antisocial behaviour will not occur.
Mrs Harvey, the Member for Scarborough, who was called by the respondent to give evidence, acknowledged that she was responding on behalf of a number of constituents who had complained to her about the proposed business but didn't feel comfortable giving evidence themselves.
Mrs Harvey explained that the business had advertised extensively by dropping what she described as inappropriate flyers on the window wipers of vehicles at local shopping centres. She also stated that, although she would have no problem with the business operating within the Osborne Park industrial area, she did not believe that it should operate where it had applied to operate, which is predominantly a residential area.
Car parking
Mr Meggitt confirmed that the City's Draft Parking Policy (Policy 6.7) sets out the parking requirements for developments in the City and that neither 'personal services' nor 'personal care services' are listed under the policy. As to uses not listed, the policy states:
Where a use is not listed in the parking ratio table above the parking ratio will be determined by Council having regard to the objectives of this policy, similar uses, surrounding uses and offsite parking availability.
In paragraphs 94 and 95 of his statement of evidence, Mr Meggitt stated:
As such[,] the requirements calculated under the preceding scheme can be used in determining the requirements for parking, resulting in a short fall over the proposed tenancy of four bays which includes provision of two bays to the rear of the tenancy.
The use involves two contractors at any one time, accommodating two clients. There is a waiting area, serviced by a site manager, where the capacity exists for up to two further clients awaiting services. In total up to seven people at any one time. The requirement for 6 bays under the Scheme is therefore eminently reasonable having regard to the specific nature of the operation.
Applicant's evidence
Mr Levi was selfrepresented and, apart from documents previously filed with his application, furnished no further written evidence. However, Mr Levi did give oral evidence on the day of the hearing and was crossexamined by Mr Meggitt for the respondent.
Mr Levi explained that he had been involved in the massage business since 1971 when he owned the Bikini Girls Massage business in Adelaide. He explained that the business is genuine and that what he describes as 'SwedishBowen therapy massage' is something he has developed over the years.
When questioned as to what the necessity was for the people giving the massage to wear bikinis or lingerie, Mr Levi explained that it was simply marketing.
Mr Levi explained that a similar business of his on Canning Highway did very well. However, following a dispute with the Department of Consumer Affairs, he had to paint out the word 'Bikini Girls', following which the trading figures dropped to near zero.
When it was put to Mr Levi that the respondent's fear or perception is that it was something more than a massage business, he confirmed that it was only a massage business and that no sexual services would be offered.
Mr Levi reiterated several times that the business was a genuine massage business and that, to address the respondent's concerns, he had put forward the management strategy and was generally happy with the conditions proposed by the respondent.
In respect of car parking, Mr Levi believed that car parking could be put at the back of the property and when discussing the proposed conditions agreed to put three parking bays at the rear. He also contended that some of the public parking spaces at the front of the property should be allocated for the use of his business.
Consideration
Characterisation of proposed use
As outlined earlier, when the application was first submitted to the City, the City's officers considered that the proposed use fell within the use class of 'personal services' under DPS 2 which was a permitted use and when the matter was reconsidered by the City in June 2010, it was again classified by the City's officers as falling within the same use class.
However, at the time of the hearing before the Tribunal, DPS 2 had been replaced by LPS 3 and an additional use class of 'personal care services' was available, which was a largely similar but expanded version of the definition of 'personal services' in DPS 2 and now specifically included 'massage'.
'Personal Care Services' in LPS 3 are defined as:
Means premises used for the provision of services of a personal nature involving care and/or treatment of clients, and includes, hairdressing, beauty, therapy, manicure and massage, but does not include consulting rooms, medical centre or sex services involving prostitution;
This new definition which only came into effect on 6 August 2010, a short time before the hearing, specifically included 'massage' in the definition of 'personal care services', which is a permitted use in a 'local centre' under LPS 3.
At the hearing, the respondent submitted that the applicant had not adequately demonstrated the nature of the proposed use, that the material provided gave conflicting information on the nature of the business, that it was not conclusive whether the proposed use would fall within the use class table in LPS 3 and that it should be regarded as a 'use not listed'.
In Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125, the then President, Justice Barker, at [15] - [16] confirmed the power of the Tribunal to characterise a proposed use for itself, and stated:
In The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, Senior Member Mr DR Parry and I determined, at [24], that under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) and s 29(1) of the SAT Act:
'The Tribunal has jurisdiction to categorise the use proposed in a planning application in circumstances where the responsible authority has categorised the proposed use.'
Section 252(1) of the PD Act is in essentially the same terms as was s 8A(1) of the TPD Act. Although s 252(2) of the PD Act now expressly permits an applicant to apply to the Tribunal for review of a responsible authority's decision under a local planning scheme as to the classification of a use under the scheme or the permissibility of a use that is not listed under the scheme, s 252(1) of the PD Act and s 29(1) of the SAT Act authorise the Tribunal to undertake a characterisation of a proposed development which is the subject of review proceedings for itself. As we observed in The Owners of Strata Plan 18449 and City of Joondalup at [23], 'it may be necessary in undertaking a review of the responsible authority's decision to refuse or to conditionally grant planning approval for the Tribunal to categorise the proposed development'. …
In Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGRA 431 (Gull Petroleum), the Supreme Court of Western Australia (Full Court) stated at [52]:
... [E]ach proposal must be looked at on its own merits. The classification of the proposed uses should not carried out either in a mechanical or arbitrary way. ...
In the present case, the applicant has applied to operate a 'therapeutic massage service' from premises at Muriel Avenue, Innaloo. Under the heading 'Description of Proposal' in its management strategy, the proposed business operation is described as follows:
Two masseuses will operate from the premises at any one time in separate consulting rooms. A total of twelve (12) masseuses are employed to operate from the premises. ...
A waiting area is provided for customers along with a staff room and toilets at the rear of the premises.
The respondent made much of the type of massage being offered and whether it was genuine massage which was described by the applicant as 'SwedishBowen' therapy and whether it was in fact therapeutic.
Whether the massage offered would in the end be therapeutic may be a matter of opinion from one person to another, and although the applicant appears to run similar businesses elsewhere in Perth, no evidence has been put forward by the respondent to support any of the allegations alluded to at the hearing.
What is proposed is a 'massage service' and Council has seen fit to specifically include massage within the definition of what is allowed under 'personal care services' in LPS 3.
Therefore, based solely on the evidence before it, the Tribunal is satisfied that what is proposed by the applicant comes with the definition of 'personal care services' in LPS 3 and is a permitted use.
To put a permitted use into context, one must first look at the comments of the Tribunal in respect of 'D' (discretionary) uses. In Joubert and City of Joondalup [2005] WASAT 330 at [24] it stated:
... [I]t is open to the owner to apply for any of the uses allowable in the zoning table and it is not appropriate to dismiss an application merely because the respondent or neighbours might have wished the owner had chosen a different use from that applied for. The use applied for can then be examined to establish whether there is any other planning reason why the use should not be allowed, particularly in the case of 'D' uses, as proposed in this instance.
In the case of 'P' or permitted use, the argument is in fact stronger as a 'P' use is permitted as of right. However, as with all applications, the planning authority, and in this case, the Tribunal must look at whether the proposed development or change of use should be allowed taking into account issues of amenity, and orderly and proper planning.
Clause 4.3.3 of LPS 3 states:
A change in the use of land from one use to another is permitted, if
a)...
b)the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in the Table 1 Zoning Table and the proposed use complies with all the relevant development standards and any requirements of the Scheme; (our emphasis)
...
In the present case, the planning issues or development standards/requirements of the Scheme raised by the respondent related to the impact upon amenity and the adequacy of parking.
Impact on amenity
From the respondent's perspective, there were two principal areas of concern in respect of amenity.
The first was how the premises had been operated and the complaints that arose for the short time it had been open prior to it being confirmed to the applicant that Council approval was necessary.
The second could be best be described as an undercurrent from the respondent that it did not believe that this was to be a genuine massage service, and that due to the way it was advertised and the proposed attire of the operators that something more than a massage service would be on offer.
In respect of the first issue, the complaints that had been received when the business initially operated without approval related to hours of operation; noise; car parking; and alleged antisocial behaviour.
Apart from the issue of car parking, which will be dealt with separately, all of the other matters identified are now adequately dealt with by the management strategy and the conditions proposed by the respondent. It would necessitate a clear breach of both for the fears put forward by the respondent to be realised. Furthermore, as one of the conditions which the applicant has agreed to limits the approval to a period of twelve months any conduct can be monitored during that period.
As to the second issue, there were two difficulties the respondent faced. Firstly, no evidence was provided that showed that had been the case for the short time the business had been open or that was what happened at the applicant's other establishments. Secondly, the applicant, in direct evidence, was quite clear as to how the management strategy would act to prevent such behaviour and that it did not happen at his other establishments. The reason the business was advertised in the way it was, was simply a marketing tool.
Mrs Harvey explained that the complaints she had received in respect to the premises all originated from the time when the business previously operated, when no management strategy was in place and when there were no conditions attached to the running of the business as are now proposed.
Mrs Harvey also confirmed that she was representing the views of constituents and stated:
I guess it's not actually really a matter of whether I have a particular difficulty with this business or not. I am really here responding on behalf of a number of constituents who, when approached to appear before the Tribunal, said they would rather - that they wouldn't be comfortable with that. (Tribunal emphasis.)
Although not in a position to give direct evidence on any particular issue, Mrs Harvey was of the view that the use 'as the community perceived it' would be better located in an industrial area, rather than a local shopping centre.
At its highest, Mrs Harvey's evidence was based on the perception of constituents that the proposed business would attract undesirable elements to the area and would be responsible for other businesses leaving the area.
The difficulty with the evidence put forward by both Mrs Harvey and Mr Meggitt in regard to the question of amenity was that it was speculative and based largely on perception.
In Woolworths and the City of Joondalup [2009] WASAT 41 at [76] and [77], the Tribunal in commenting on residents' fears of perceived impacts referred to a Victorian case and stated:
In Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124, the Victorian Civil and Administrative Tribunal in dealing with a proposed alcohol and drug resource centre and neighbourhood residents' objections stated at [56]:
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
In the present case, the Tribunal is not on the evidence before it able to conclude that there is a factual or realistic basis to the fears of the residents. ...
The Tribunal is of the same opinion in this case. The respondent has put no evidence before the Tribunal to allow it to reach the conclusion suggested or to make the finding proposed by the respondent.
Adequacy of parking
As part of the preparation for LPS 3, the City reviewed and updated Policy No 6.7 which sets out the parking requirements for development within the City.
As stated earlier, 'Personal care services' is not listed under the policy and, in respect of a use not listed, the policy states:
Where a use is not listed in the parking ratio table above the parking ratio will be determined by Council having regard to the objectives of this policy, similar uses, surrounding uses and off-site parking availability.
At para 95 of his statement of evidence, Mr Meggitt, the planner who gave evidence for the respondent, stated:
The use involves two contractors at any one time, accommodating two clients. There is a waiting area, serviced by a site manager, where the capacity exists for up to two further clients awaiting services. In total up to 7 people at any one time. The requirements for 6 bays under the Scheme is therefore eminently reasonable having regard to the specific nature of the operation.
It should be noted that the six bays Mr Meggitt referred to as reasonable were all to be available 'on the premises' and did not include the use of any public parking bays in the road reserve.
In the report to Council for its meeting of 15 June 2010, under the heading 'Parking', Council officers had stated:
It was previously highlighted in this report that a total number of parking spaces required to be provided on-site is six (6). It is recommended that the therapeutic services be required to provide three (3) bays at the rear set aside exclusively for staff an the on-site manager. As a result there is a three (3) bay shortfall. Given the generally low scale nature of the development in terms of the number of clientele attracted to the premises and the provision of additional bays in the road reserve, it is considered appropriate that Council exercise its discretion to modify the parking standard for 'Personal Services; under clause 1.4.3.1 of the DPS 2.
Even though the matter is now being considered under LPS 3, the parking requirements need to be determined having regard to the objects of the policy, surrounding uses and off-site parking availability as per Policy 6.7 and the Tribunal is of the view that the reasoning outlined by Council officers and set out above in this regard is sound.
It is noted that there are 22 public parking spaces within the road reserve fronting the premises which are shared by the five commercial lots and that prior to this, these premises had operated as a shop for some considerable time with no reported parking problems. In the Tribunal's view, that use would have generated a higher parking demand than the use proposed.
In the circumstances, the Tribunal agrees with the officer's assessment and it is not unreasonable that the applicant provide three parking bays at the rear of the site, to be used for employee parking. The public parking bays at the front of the premises will allow adequate parking for clientele.
This is also in line with what is proposed within the applicant's management strategy and given that the approval will initially be for one year, the adequacy of those parking arrangements can be monitored over that time.
Conclusion
Having considered all of the evidence, the Tribunal is satisfied that under LPS 3, the proposed use is a permitted use and no evidence has been put forward by the respondent on which the Tribunal could rely to find that the development as proposed would adversely affect the amenity of the locality.
Furthermore, given the position with car parking as outlined above, there is no reason in the Tribunal's view, based on orderly and proper planning, as to why the proposed development should not be approved subject to the applicant providing three parking bays at the rear of the premises.
In the circumstances, the application for review will be allowed and the decision of the respondent dated 15 June 2010 will be set aside and substituted with an approval subject to the conditions set out below.
Conditions
As per normal practice in the Tribunal, prior to the hearing of the matter, the respondent prepared and filed a draft set of proposed conditions in the event that the application was allowed.
Prior to the conclusion of the hearing, the Tribunal raised the proposed conditions with both parties and received submissions in respect of the proposed conditions.
The applicant was largely agreeable to the conditions proposed by the respondent as many of them reflected what is in the applicant's management strategy. However, for purposes of clarity, all of the proposed conditions are set out below and if there was any objection or comment by the applicant in respect of a condition it is referred to and dealt with immediately following that condition.
Proposed Condition 1) This approval is valid for a period of 12 months from the date of approval. If the applicant wishes to continue operation of the therapeutic massage business after this period, the applicant shall lodge a fresh planning application stating whether any part of the proposal has been altered since its original approval, prior to the expiry of the approval.
In respect of Proposed Condition 1, the applicant stated 'I agree to that' and that condition will be imposed but for the purposes of consistency with other conditions the word 'approval' in the second line will be deleted and replace by the words 'commencement of use'.
Condition 1) (as amended) This approval is valid for a period of 12 months from the date of commencement of use. If the applicant wishes to continue operation of the therapeutic massage business after this period, the applicant shall lodge a fresh planning application stating whether any part of the proposal has been altered since its original approval, prior to the expiry of the approval.
Proposed Condition 2) Compliance with the requirements of the Management Strategy dated 16 April 2010 prepared by Greg Rowe and Associates for the therapeutic massage business at the subject site.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Proposed Condition 3) The proposed development complying with all details and amendments marked in red as shown on the approved plans, specifically, the installation of six (6) parking spaces at the rear of the subject lot.
The majority of the applicant's comments in respect of the conditions related to this condition, together with conditions 5 and 7 below, all of which relate to car parking.
In respect of the number of bays to be provided at the rear of the premises, the applicant stated, 'I will agree to 3 if we had the time to do it. We'd need six months from what the first planner told me'.
In the circumstances, and based on the Tribunal's findings in respect of car parking set out above, conditions 3, 5 and 7 will be combined into one condition to read as follows:
Condition 3) (as amended) The proposed development is to provide three (3) car bays for the use of employees at the rear of the premises prior to commencement of use. Plans showing the detail of the three (3) car bays, manoeuvring and circulation areas are to be submitted to Council for approval and the applicant will have six months from the approval of those plans to construct, mark, seal and drain the parking, manoeuvring and circulation areas at the rear of the property to the satisfaction of the City.
Proposed Condition 4) A cash-in-lieu contribution of $1,600 for the cost of paving and draining Azurite Lane as determined by the City's Engineering Business Unit to be made to the City's Right of Way Upgrading Fund within 28 days from the date of this approval.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Proposed Condition 5) Vehicular parking, manoeuvring and circulation areas indicated on the approved plan being sealed and drained to the satisfaction of the City, the six (6) parking spaces being marked out and maintained in good repair. In addition, three (3) of the parking spaces are to be set aside for employees only.
This proposed condition will be deleted in light of the amended condition 3 above.
Proposed Condition 6) No goods or materials being stored, either temporarily or permanently, in the parking or landscape areas or within access driveways. All goods and materials are to be stored within the buildings or storage yards, where provided.
The applicant made no comment or objection to this condition and it will be imposed but for purposes of clarity, the words 'all of which are to be maintained in good repair' will be added after the word 'driveways' in the second line.
Condition 6 will therefore read:
Condition 6) (as amended) No goods or materials being stored, either temporarily or permanently, in the parking or landscape areas or within access driveways all of which are to be maintained in good repair. All goods and materials are to be stored within the buildings or storage yards, where provided.
Condition 7) In relation to condition 3, the six (6) parking spaces to be installed within 45 days from the date of this approval.
This proposed condition will be deleted in light of the amended condition 3 above.
Condition 8) A maximum number of two (2) employees in relation to the therapeutic massage business to be present on the premises at any one time, excluding the site manager.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 9) A permanent site manager knnown to the City to be present and on the premises at all times in addition to the two (2) therapeutic massage employees.
The applicant made no objection or comment in respect of this condition and it will be imposed but with the deletion of the words 'known to the City' as the Tribunal sees the requirement for every site manager being 'known to the City' as overly onerous.
Condition 9) (as amended) A permanent site manager to be present and on the premises at all times in addition to the two (2) therapeutic massage employees.
Condition 10) The hours of operation of the therapeutic massage premises being limited to 10.00 am to 7.00 pm Monday to Saturday. The premises to be closed on Sundays and Public Holidays.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 11) The therapeutic massage premises is at no time to undertake any activities that fall within the definition of 'Restricted Premises' in accordance with the definition under the City's Local Planning Scheme No 3, which states:
'Restricted Premises: means premises used for the sale by retail or wholesale, or the offer for hire, loan or exchange, or the exhibition, display or delivery of
a)publications that are classified as restricted under the Censorship Act 1996;
b)materials, compounds, preparations or articles which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity.'
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 12) The internal partitions between office, warehouse or retail units not being altered without the written consent of the City first being obtained.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 13) The on-site floodlights not being positioned or operated in such a manner so as to cause annoyance to surrounding residents, land uses or passing traffic.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 14) A separate signage strategy to be submitted to the City for approval prior to the issue of any sign licences.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
Condition 15) Permanent obscured curtains to be installed and drawn during night time operation of the therapeutic massage business to prevent direct view into the premises.
The applicant made no comment or objection to this condition and it will be imposed as proposed.
As proposed Conditions 3, 5 and 7 have been amended and consolidated into one new condition, the total number of conditions has reduced by two and the numbering of the conditions in the orders will reflect this.
Orders
1.The application for review is allowed.
2.The decision of the City of Stirling dated 15 June 2010 is set aside and development approval for the change of use to 'therapeutic massage service' is approved subject to the following conditions:
1)This approval is valid for a period of 12 months from the date of approval. If the applicant wishes to continue operation of the therapeutic massage business after this period, the applicant shall lodge a fresh planning application stating whether any part of the proposal has been altered since its original approval, prior to the expiry of the approval.
2)Compliance with the requirements of the Management Strategy dated 16 April 2010 prepared by Greg Rowe and Associates for the therapeutic massage business at the subject site.
3)The proposed development is to provide three (3) car bays for the use of employees at the rear of the premises. Plans showing the detail of the three (3) car bays, manoeuvring and circulation areas are to be submitted to Council for approval and the applicant will have six months from the approval of those plans to construct, mark, seal and drain the parking, manoeuvring and circulation areas at the rear of the property to the satisfaction of the City of Stirling.
4)A cashinlieu contribution of $1,600 for the cost of paving and draining Azurite Lane as determined by the City's Engineering Business Unit to be made to the City's Right of Way Upgrading Fund within 28 days from the date of this approval.
5)No goods or materials being stored, either temporarily or permanently, in the parking or landscape areas or within access driveways which are to be maintained in good repair. All goods and materials are to be stored within the buildings or storage yards, where provided.
6)A maximum number of two (2) employees in relation to the therapeutic massage business to be present on the premises at any one time, excluding the site manager.
7)A permanent site manager to be present and on the premises at all times in addition to the two (2) therapeutic massage employees.
8)The hours of operation of the therapeutic massage premises being limited to 10 am to 7 pm Monday to Saturday. The premises are to be closed on Sundays and Public Holidays.
9)The therapeutic massage premises is at no time to undertake any activities that fall within the definition of 'Restricted Premises' in accordance with the definition under the City of Stirling's Local Planning Scheme No 3, which states:
'Restricted Premises: means premises used for the sale by retail or wholesale, or the offer for hire, loan or exchange, or the exhibition, display or delivery of
a)publications that are classified as restricted under the Censorship Act 1996 [WA];
b)materials, compounds, preparations or articles which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity.'
10)The internal partitions between office, warehouse or retail units not being altered without the written consent of the City of Stirling first being obtained.
11)The onsite floodlights not being positioned or operated in such a manner so as to cause annoyance to surrounding residents, land uses or passing traffic.
12)A separate signage strategy to be submitted to the City of Stirling for approval prior to the issue of any sign licences.
13)Permanent obscured curtains to be installed and drawn during nighttime operation of the therapeutic massage business to prevent direct view into the premises.
I certify that this and the preceding [110] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
0
4
5