| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LIM and CITY OF STIRLING [2014] WASAT 26 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 16 AND 17 JANUARY 2014 (FURTHER SUBMISSIONS 31 JANUARY AND 7, 10 AND 17 FEBRUARY 2014)
DELIVERED : 4 MARCH 2014 FILE NO/S : DR 6 of 2013 BETWEEN : LAY CHOO LIM Applicant
AND
CITY OF STIRLING
Respondent
Catchwords: Town planning Development application Refusal of bed and breakfast accommodation Bed and breakfast policy Provision of parking Signage Pylon sign in residential zone Noise impacts Overcrowding Webbased advertising Compatible with and complementary to residential development No detrimental impact on the amenity of surrounding properties
Legislation: Planning and Development Act2005 (WA), s 252(1)
City of Stirling Local Planning Scheme No 3, cl 1.6, cl 2.2, cl 4.1.12(b), cl 4.2.12, cl 4.2.12(b), cl 4.3, cl 10.2, cl 10.6, Sch 1, Sch 8
State Administrative Tribunal Act 2004 (WA), cl 32(4)
City of Stirling Health Local Law 2009, cl 3.4, cl 3.4(b)(i), Div 2 Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: On 28 February 2011, the City of Stirling received an application for bed and breakfast accommodation at No 249 (Lot 1153) Scarborough Beach Road, Doubleview. This application was approved by the City of Stirling on 5 July 2011 although this approval was limited to a period of 12 months.
An application for the renewal of the bed and breakfast operation was received by the respondent on 14 June 2012. This application was refused by the City of Stirling on 13 November 2012 and the applicant subsequently made application to the Tribunal for a review of that decision.
It was agreed that the issue in this matter was whether approval for the proposed renewal of a bed and breakfast operation should be granted if, as the respondent contended: the development did not provide sufficient onsite parking to accommodate the bed and breakfast use;
the development would have an adverse amenity impact on nearby properties; and
renewal of the bed and breakfast application would be contrary to the requirements of orderly and proper planning. In regard to parking, the Tribunal found that the proposal put forward by the applicant raised a number of issues; neither the rights of access of the subject site to the adjoining laneway nor a workable parking layout had been definitively established.
In regard to the potential amenity impact, the Tribunal found that: the number of patrons for which the applicant sought approval would generate an occupancy level well above the average for dwellings within the Perth metropolitan region;
the likelihood of adverse noise impacts could not be discounted; and
the proposed signage was more typical of a commercial use and was not appropriate within a residential zone. The Tribunal concluded that the proposed bed and breakfast accommodation would present more as a commercial operation than an incidental use associated with a residential dwelling and therefore would not meet the criteria of 'compatible with and complementary to residential development' (cl 4.2.12(b) of the City of Stirling Local Planning Scheme No 3). In addition, the potential of the proposed development to have an adverse impact on the amenity of surrounding properties could not be discounted.
For these reasons, the Tribunal concluded that approval of the proposed bed and breakfast accommodation would not accord with the principles of orderly and proper planning.
The application for review was therefore dismissed and the decision of the respondent affirmed.
Category: B
Representation: Counsel:
Applicant : Mr F Kwa (Acting as Agent)
Respondent : Ms P Wojcik
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 28 February 2011, the City of Stirling (respondent, City or Council) received an application for a bed and breakfast at No 249 (Lot 1153) Scarborough Beach Road, Doubleview. 2 Following advertising (three objections received) and a deferral at the June 2011 meeting to allow Council officers to inspect the premises, the respondent approved the application at the Ordinary Meeting of the Council held on 5 July 2011. This approval was subject to the following conditions: a) This approval is valid for a period of 12 months. After this period the applicant is to apply to the City for renewal of the application. b) Only the two bedrooms indicated on the approved plans are to be used for the purpose of bed and breakfast. c) The owner and operator of the bed and breakfast is to reside at the premises at all times. d) All driveways, parking and manoeuvring areas are to be constructed of brick paving, and are to be drained and maintained to the City's satisfaction. Alternative finishes such as concrete or bitumen are acceptable if they have a decorative type finish to the satisfaction of the City. e) The number of occupants in the bedroom forming the bed and breakfast accommodation is to be limited pursuant to the calculations specified in cl 3.4 of Div 2 of the City of Stirling Health Local Law 2009 (Local Law). f) The occupancy of the remaining rooms in the dwelling is to be limited to members of a single family and the number of occupants in accordance with cl 3.4 of Div 2 of the Local Law. 3 In regard to the temporary approval, the report of the Council officer states: … In order to safeguard the amenity of the surrounding residents it is recommended that the approval be valid for 12 months upon which time the applicant will be required to apply for renewal. The City will then be able to review the bed and breakfast operation in order to determine whether or not the operation is having a detrimental impact on the surrounding properties. (Respondent's s 24 bundle of documents at page 8) 4 During the 12 month approval period, the respondent received complaints in relation to the bed and breakfast operation, which raised issues which included noise associated with parties, noise associated with the operation of a washing machine and dryer on the rear patio, unauthorised signage, failure to provide car parking bays at the rear of the property as approved, and concern over the number of occupants using the facility. 5 On 21 March 2012, a retrospective application was received for a pylon sign at the premises. This was refused by the respondent. This decision was subject to an application for review to the Tribunal which was subsequently withdrawn. 6 A development application for the renewal of the bed and breakfast operation was received by the respondent on 14 June 2012. Following advertising (one objection received) and a site inspection by Council officers, the respondent, at its meeting of 13 November 2012, refused the application for the following reasons: a) The premises does not provide sufficient onsite parking to accommodate the bed and breakfast use as required by the previous approval (DA11/0481). b) The operations of the bed and breakfast have an adverse amenity impact on nearby properties. c) Renewal of the bed and breakfast application is contrary to the requirements of orderly and proper planning. (Respondent's statement of issues, facts and contentions (SIFC) at paragraph 20). 7 An application to the Tribunal seeking a review of this decision was received on 8 January 2013. While it appears that the application was received outside the required 28 day timeframe and no order was made extending the time for application, the respondent has taken no point on this matter and the Tribunal will proceed to review the decision.
Site and locality 8 The land the subject of this review is No 249 (Lot 1183) Scarborough Beach Road, Doubleview (subject site). 9 The subject site is located on the southwestern side of Scarborough Beach Road between the intersections of St Brigids Terrace and Hancock Street. The locality within which it is located generally comprises medium density residential development consisting of single houses and grouped dwellings. However, the lot is bounded to the southeast by the Hillview Shopping Centre which is zoned 'Local Centre' under the provisions of the respondent's local planning scheme. An accessway for the shopping centre runs between Scarborough Beach Road and a rear parking lot along the southeastern boundary of the subject lot. The southern half of that boundary abuts the shopping centre carpark. The site is bounded by Madang Lane to the southwest and residential development to the northwest. 10 The site comprises an area of 683m2 and contains a single residential dwelling. The dwelling comprises an original single storey house set back approximately 9 metres from the Scarborough Beach Road boundary, with a more recent two storey addition built behind it. At the rear of the addition is a covered verandah. Behind the verandah is a level change of approximately 800 to 1,000 millimetres, and the raised section at the rear of the lot has a substantive shed on the north-western side with access from Madang Road. The majority of the front setback and the area adjacent to the shed at the rear are paved.
Planning framework 11 The subject site is zoned Residential and coded R30 under the provisions of the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme). 12 Clause 1.6 of LPS 3 sets out the aims of the Scheme, which includes: a) To provide for a range of housing choice in neighbourhoods with a strong community identity and high levels of amenity. 13 Powers to prepare local planning policies generally, or for a particular class or classes of matters, are established in cl 2.2 of LPS 3. 14 Objectives of the zones are set out in cl 4.2.12 of LPS 3, and for the Residential zone read as follows: 15 The Zoning Table at cl 4.3 of LPS 3 establishes 'Bed and Breakfast' as an 'A' use in the Residential zone; that is, 'the use is not permitted unless the Council has exercised its discretion by granting planning approval after giving special notice in accordance with Clause 9.4'. 16 Matters to be considered by the Council in considering an application are set out in cl 10.2 of LPS 3 and include: a) the aims and provisions of the Scheme and the objectives of the relevant zone and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme); b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought; … f) any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.3.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme; … 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; … p) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles; … y) any relevant submissions received on the application; … 17 Clause 10.6 establishes powers to grant temporary planning approvals. 18 Schedule 1 of LPS 3 defines 'Bed and Breakfast' as follows: Means a dwelling, used by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence on a short-term commercial basis and includes the provision of breakfast[.] 19 Under the same provision, 'Amenity' is defined as follows: Means all those factors which combine to form the character of an area and include the present and likely future amenity[.] 20 A pylon sign is defined in Sch 1 of LPS 3 as follows: Pylon Sign means an advertising sign which is affixed to a structure having one or more supports where the overall height (inclusive of the supports) is greater than the sign's horizontal dimension and portion of the sign is greater than 1.2 metres above natural ground level, but does not include a Monolith Sign. 21 Under the provisions of Sch 8 of LPS 3, a pylon sign is an 'X' use in a residential zone. 22 In addition to the provisions of LPS 3, the respondent has adopted Policy 2.3 'Bed and Breakfast Accommodation' (Policy 2.3), a local planning policy which sets out the provisions covering bed and breakfast accommodation. 23 The objectives of Policy 2.3 are: 24 The policy provisions: • seek to limit the number of rooms to be used for bed and breakfast accommodation to two; • require one parking space for each bed and breakfast room; and • limit signage to one sign not exceeding 0.5m2 in area to be incorporated into a front fence, wall, structure or building. Finally, the owner of the bed and breakfast is required to reside in the dwelling.
The issues 25 The parties agreed that the issue in this matter was whether planning approval for the proposed renewal of a bed and breakfast at the subject site should be granted if, as the respondent contends: The viewing 26 The Tribunal conducted a viewing of the premises the subject of this review at 3.45 pm on 16 January 2014. 27 An illuminated pylon was located adjacent to the Scarborough Beach Road boundary in the northeastern corner of the site. No sign was in place at the time of the viewing. 28 A sign on the front door advertised bed and breakfast accommodation. 29 A large sign on a rear window facing the rear laneway and adjacent carpark for the shopping area read 'Room for Rent'. 30 The Tribunal was advised that the downstairs area was for private use. The two relevant rooms on the upper level at the rear of the premises were viewed. One bedroom accommodated a double bed; the other bedroom a double bed and a single bed. These rooms took access from what appeared to be a common area which included cooking facilities. In addition, a third bedroom (the one containing the sign on the window noted above) also took access from the common room. This room contained two double bunks and one double bed. There were two bathrooms on the upper floor. 31 An oven, cooktop and extract hood were installed in the laundry. 32 A washing machine and dryer were located at the rear of the property adjacent to the laundry door under a verandah. 33 The parking area at the rear of the property had recently been cleaned up and four parking bays marked out. These constituted two tandem bays and required mounting of a kerb for access which was limited to the area adjacent to the shed; access to the southeastern parking bay was restricted by a section of fencing along the laneway.
The evidence 34 In the current review the relevant planning provisions comprise a number of the general provisions of LPS 3, the definitions under Sch 1 and the provisions of Sch 8 of the Scheme and the respondent's Policy 2.3. 35 The substantive consideration is, on the face of it, whether the respondent, or the Tribunal on review, should exercise its discretion to renew the approval for the bed and breakfast accommodation when judged against the planning provisions set out above. 36 However, it is to be noted that while it is implicit that a renewal generally implies an extension of an existing approval, subject to any conditions attaching to the original approval, such an interpretation in the current matter is problematic for the following reasons. The applicant is seeking to vary the parking arrangements of the original approval. It is also seeking to increase the number of patrons permitted in the two bedrooms approved for bed and breakfast accommodation and, in addition, is seeking approval for a pylon sign refused by the respondent under a separate planning application for which an application for review was lodged with the Tribunal and subsequently withdrawn. 37 The evidence to the Tribunal from the applicant was that the bed and breakfast operation the subject of this review was not currently operating. This submission was challenged by the respondent. 38 The substantive issues argued by the parties in the final hearing and addressed in subsequent submissions comprised the following: • overcrowding; • webbased advertising; • noise; • signage; and • parking. 39 The Tribunal shall deal with each of these issues in turn.
Overcrowding 40 Ms Patricia Wojcik, for the respondent, provided evidence that the respondent had received six written complaints in regard to overcrowding. Her evidence was that the original approval was conditioned to permit a maximum of two rooms to be let out with a maximum of two people per room. While this evidence was not challenged by the applicant, it should be noted that while condition (b) restricted the bed and breakfast to two rooms, the number of occupants was subject to condition (e) which made reference to the provisions of Div 2 cl 3.4 of the Local Law rather than specifying a specific number of occupants per room. Clause 3.4(b)(i) of the Local Law requires: … for every person over the age of 10 years using the room there is at least 14 cubic metres of air space per person. 41 While no evidence was provided on the cubic capacity of the rooms in question to substantiate the calculation, a review of the plans submitted with the application suggests a cubic volume of approximately 35m3 per room. 42 The sign on the front door of the premises inspected at the viewing advised that an extra bed could be provided in the room for an additional payment of $45. Mr Francis Kwa, agent for the applicant, submitted that notwithstanding the content of the sign and the provision of an additional bed evident in one of the rooms at the viewing, this could not be taken to imply that the applicant had ever provided a room for use by three people. 43 In addition, Ms Lim provided evidence that the third upstairs room (containing two bunk beds and a double bed) is used solely for visits by her family from Singapore and for storage. 44 Mr Kwa, in his closing submission, submitted that: The appropriate number of patrons allowed per room is to be three (3); and can be four (4) with a change of bedding arrangement. This is notwithstanding that the maximum number of persons allowed should be six (6) or more and can only be limited by health and safety regulations unless the City can show cause to the contrary.
(Applicant's submission dated 29 January 2014) 44 In a further submission, Mr Kwa sought approval for a maximum number of eight persons; five in one room and three in the other. This was, however, based on a revised proposal to substitute the larger southeastern room on the upper floor for one of the rooms identified in the original application.
Webbased advertising 45 The amended witness statement of Ms Wojcik included at Attachment 1 a copy of an email supposedly sent by the applicant to Ms Sara Eadie, dated 23 November 2011, advising that a large room upstairs could accommodate seven people or that two rooms were available downstairs that could accommodate eight people. Ms Wojcik advised that this email had been forwarded to an elected member of the Council by a member of the public. 46 Mr Kwa objected to this document being accepted as an exhibit on the basis that the applicant denied sending it. Having given consideration to that submission, the Tribunal allowed the document subject to hearing from the parties on the weight to be given to the document. 47 Mr Patrick Connor, an objecting neighbour, submitted under crossexamination that the bed and breakfast facility had been advertised on Gumtree and listed on further websites. 48 On the second day of the hearing, the respondent sought to submit a document obtained from a website on the 16 January 2014 which comprised an advertisement for bed and breakfast accommodation at the subject site and a preliminary response to a proposed booking. Given that the applicant had confirmed that the facility was not operating at the time of the hearing, and this had been challenged by the respondent, the Tribunal allowed the document to be submitted as an exhibit. 49 Mr Kwa advised that the website ( had been established during the 12 month approval period. The witness statement of Mr Andrew Williamson, for the applicant, submitted that the applicant decided to close the booking page down in early 2012 and that this website could not take any bookings following termination of the link. Mr Kwa's explanation was that, while the person responsible for setting it up had been requested to remove it, this was apparently not done. He argued that the site provided no ability to take bookings. The site had been 'left in abeyance' subject to a potential further approval and should have been 'hidden'. For some reason that he was not able to explain the site had become 'unhidden'. 50 Given the contradictory evidence provided to the Tribunal on this issue, the Tribunal, under the powers established by cl 32(4) of the State Administrative Tribunal Act 2004 (WA), undertook a search on the web on 16 January 2014. 51 This search revealed a further advertisement on the OLX website for 'Fully Furnished Room Available Short/Long Term 8 Weeks Minimum'. 52 In response to this document Mr Kwa submitted that the proposal to rent rooms (subject also of the large sign evident on the rear window of the premises at the viewing) did not require planning approval and was irrelevant in terms of the current review of the bed and breakfast accommodation. 53 While in a narrow sense Mr Kwa may or may not be correct, the current intentions of the applicant in regard to the rental of rooms do raise issues in terms of the current review. 54 First, evidence was provided to the Tribunal by the applicant that the dwelling contained six bedrooms. This meant that the five rooms advertised for rent on the website included the two rooms subject to the current review. Secondly, condition (f) of the current approval reads: The occupancy of the remaining rooms in the dwelling be limited to members of a single family and number of occupants in accordance with the City of Stirling Health Local Laws Division 2 Clause 3.4[.] 55 While the Tribunal sought clarification on the applicant's intentions in this regard it was not able to obtain a definitive response.
Noise 56 In regard to the complaints of noise, Mr Connor, the adjoining resident, submitted that he 'had to call the police for noise complaints from ''guests'''. The witness statement of Ms Wojcik submitted that the respondent had 'received two (2) written complaints in relation to excessive stereo noise and antisocial behaviour which were also reported to the Police. Police lodgement number have also been provided to the City' (witness statement of Ms Wojcik at paragraph 29). 57 Ms Lim denied that the police had ever visited the premises in response to noise complaints. 58 In addition, Ms Wojcik submitted that the respondent had 'received two (2) written complaints regarding excessive noise emanating from the operation of washing machines and dryers on the rear patio' (witness statement of Ms Wojcik at paragraph 28). 59 These complaints had presumably come from the adjoining neighbour; the viewing had revealed that the washing machine and dryer were in reasonable proximity to two windows on the adjacent property to the northwest, the residence of Mr Connor. It was Mr Connor's evidence that the washing machine is being used at 10 pm or 11 pm in the evening. 60 While Ms Lim conceded that guests sometimes use the washing machine (she does laundry for them) she denied that it was used late at night and expressed the view that it was not in any event noisy.
Signage 61 The respondent's policy for signage for bed and breakfast accommodation limits signage to one sign not exceeding 0.5m2 in area to be incorporated into a front fence, wall, structure or building. 62 Evidence provided to the Tribunal, dated 9 December 2012, indicated a large sign on rear window (advertising bed and breakfast accommodation), a sign placed on rubbish bins on Scarborough Beach Road (advertising bed and breakfast accommodation), and allegations of a moveable sign placed on a median strip at the intersection of Scarborough Beach Road and St Brigids Terrace. A further photograph taken the same day indicated a pylon sign adjacent to the Scarborough Beach Road boundary which read 'To Let' and contained contact telephone numbers. 63 In addition, considerable further evidence was provided on what the applicant submitted was the 'alleged pylon sign'. 64 This sign was apparently erected in February 2012. After contact from Council officers in following up a complaint, an application for planning consent was submitted on 13 March 2012. This application was refused by the respondent on 21 March 2012. An application to the Tribunal for review of this decision was subsequently withdrawn. 65 The sign comprises an illuminated 'box' mounted on a circular steel post approximately 3.5 metres high. No advertising was evident on this structure at the viewing of 16 January 2014. 66 In regard to attempts to deal with ongoing issues associated with signage at the subject property, the witness statement of Mr David Spencer for the respondent provided evidence of contact with the applicant on a number of occasions during the approval period in regard to the pylon sign and ground based signs both on the property and on the verge.
Parking 67 The original drawings submitted for approval indicated two car bays were to be provided at the rear of the property accessed from Madang Lane. Condition (d) read as follows: All driveways, parking and manoeuvring areas are to be constructed of brick paving, drained and maintained to the City's satisfaction. Alternative finishes such as concrete or bitumen are acceptable if it has a decorative type finish to the satisfaction of the City. 68 Photographic evidence provided to the Tribunal, dated 12 October 2012, indicated that the required bays had not been provided at that time. The inspection of 16 January 2014 established that four bays had been marked out at the rear of the property. However, the requirement to mount a kerb, the tandem nature of the provision and the difficulty to accessing the two southeastern bays due to a section of fence on the laneway boundary, suggests this arrangement would not have met the condition to the satisfaction of the respondent. This was confirmed in the respondent's closing submission. 69 Mr Kwa argued that the kerb was fairly low and easily mounted and did not therefore restrict access. In addition, he submitted that this area could accommodate four cars 'with perhaps a little accommodation'. 70 It was, however, the evidence of both Mr Kwa and Ms Lim that these bays were never used, and guest parking which only comprised one or two cars utilised the paved area at the front of the property.
Whether the development provides sufficient parking 71 There was no issue between the parties in regard to the requirement to provide four car bays on site, of which two were to provide for the bed and breakfast accommodation. 72 However, in terms of the original approval, these bays were to be located in the southeast corner of the subject site taking access from Madang Lane. 73 The respondent submitted that in order to comply with the City's requirements for car parking, the bays needed to be accessible and available for use at all times. While the respondent in principle does not take issue with the two bays for the bed and breakfast accommodation being provided within the front setback and the two bays for the residence being provided in the rear, the respondent argued appropriate signage would need to be provided and the bays would need to be available for use at all times. 74 The respondent also argued that there cannot be more than two bays within the front setback area to Scarborough Beach Road as there would not be adequate reversing space for vehicles to enter the street in forward gear. 75 The applicant submitted that the front setback has sufficient space for the parking of four motor vehicles entering from Scarborough Beach Road and exiting via the side lane which serves the adjoining shopping centre. While no documentary evidence was provided to the Tribunal, the applicant submitted that the subject lot had rights of access over the lane serving the shopping centre carpark. The layout for the parking provided by the applicant suggested that the vehicle in the northwestern bay would need to reverse over the footpath to exit the premises. 76 The proposal put forward by the applicant raises a number of issues. Neither the rights of access of the subject site to the adjoining laneway nor a workable parking distribution have been definitively established. Moreover, the intention to effectively use the majority of the front setback area as a carpark with egress from a laneway serving the adjacent shopping centre carpark raises both practical issues of potential use by patrons of the shopping centre and amenity issues in a residential zone. Based on the evidence before it, the Tribunal prefers the submission of the respondent on the issue of car parking.
Whether the development will have an adverse amenity impact 77 The potential amenity issues raised in the hearing included overcrowding, noise and signage. The Tribunal shall deal with these in turn. 78 In terms of the number of patrons to be permitted in the bed and breakfast accommodation, the respondent submits that the number should be limited by the provisions of Div 2 cl 3.4 of the Local Law which requires: 79 Based on these requirements, the two originally identified rooms could each accommodate a maximum of two adults, or one adult and two children under the age of 10 years. While nothing much turns on it in the current matter, the Tribunal would question planning conditions which are neither certain and final and draw on legislative provisions outside the planning domain. 80 The applicant's final submission was that the maximum number of persons allowed should be five in one room and three in the other. 81 This submission is, however, based upon a proposal to revise the application the subject of this review, to delete the northwestern room from use in the bed and breakfast accommodation and substitute the larger southeastern room (currently used for visits by members of Ms Lim's family from Singapore and storage). 82 Therefore, the respondent is seeking to restrict the number of patrons in the bed and breakfast accommodation to a total of four adults, or two adults and four children under ten years of age in the originally proposed two rooms, while the applicant (using an alternative room) is seeking approval for eight patrons. This number was clarified in the applicant's final submission as five adults and three children. 83 In this case, the question of the number of occupants is complicated by the lack of clarity in regard to the applicant's apparent intention to both run a bed and breakfast operation and concurrently let rooms in the subject property. 84 This would run counter to the respondent's original condition (f) which sought to restrict the occupancy of the remaining rooms in the dwelling to members of a single family and the number of occupants in accordance with Div 2 cl 3.4 of the Local Law. 85 In regard to noise, the respondent's evidence of noise complaints and the evidence of Mr Connor was disputed by the applicant. While accepting the fact that there has been a long history of antagonism between Ms Lim and the Connors, Mr Connor's evidence on noise withstood rigorous crossexamination from Mr Kwa. However, given the fact that neither copies of the written complaints nor details of the police reports were provided in evidence, the Tribunal has no evidentiary basis for a definitive finding on this issue. 86 In regard to signage, the respondent's submission is that the policy provides for one sign not exceeding 0.5m2 in area incorporated into a front fence, wall, structure or building and that a pylon sign is not permitted within a residential zone. 87 The applicant, drawing on dictionary definitions, submits that the sign does not fit into the definition of a pylon sign and should be permitted. 88 Clearly the existing structure, should it contain the advertising sought by the applicant, falls within the definition of 'pylon sign' established by Sch 1 of LPS 3. Moreover, under the provisions of Sch 8 of LPS 3, a pylon sign is an 'X' use in a residential zone. In this context the relevant planning provisions are those in LPS 3, not the respondent's policy. 89 On this issue the Tribunal accepts the submission of the respondent. 90 In terms of the potential amenity impacts, the Tribunal takes the view that considering all the evidence the proposed bed and breakfast accommodation is likely to have an adverse impact on the amenity of surrounding properties and the residential zone for the following reasons. • Number of patrons: The applicant seeks approval for a maximum of eight patrons which, with Ms Lim who is required to reside at the premises, would generate a total number of nine people potentially occupying the residence at one time. This represents a number well above the average occupancy for dwellings within the Perth metropolitan region. It does not, however, include any additional occupants arising from the applicant's intention to also rent rooms at the premises. • Noise: While the evidence is circumstantial and in dispute the potential of adverse noise impacts cannot be discounted. • Signage: The signage sought is more typical of a commercial use and is not appropriate within a residential zone.
Renewal is contrary to the requirements of orderly and proper planning 91 In its closing submission the respondent submits that as the bed and breakfast operations at the subject premises have had an adverse amenity impact on the locality and the operation has not been managed in accordance with the conditions of approval, the current application should not be supported. 92 The applicant submits that the respondent '[i]n condemning the Applicant with respect to adverse amenity on the basis of an unfounded and unsubstantiated complaint from the single next door neighbour with a long ongoing boundary dispute and personal issues with the Applicant' would be unconscionable (applicant's closing submission, dated 8 February 2014, at paragraph 12). 93 Clearly, much of the evidence provided to the Tribunal in this matter is contested. However, on balance, it is the Tribunal's view that the evidence of the respondent has generally been more credible than that provided by the applicant. The hearing and subsequent submissions from the applicant has, however, clarified to some degree the intentions of the applicant in regard to the operation of the bed and breakfast operation allowing an assessment of the proposal against the principles of orderly and proper planning. 94 A consideration of the requirements of orderly and proper planning should be explicit in terms of the criteria to be applied in such an assessment. In this instance the relevant provisions are the objectives of the zones established by cl 4.2 of LPS 3 and the objectives of the respondent's Policy 2.3. Clause 4.2.12(b) of LPS 3 reads: To provide for a range of non-residential uses, which are compatible with and complementary to residential development. 95 The objectives of the policy are: 96 The principles in terms of orderly and proper planning to be drawn from these provisions require non-residential uses to be 'compatible with and complementary to residential development' and have 'no detrimental impact on the amenity of surrounding properties'. 97 In regard to the maximum number of patrons sought by the applicant, the intention to use the majority of the front setback for car parking and the approval sought for a pylon sign lead the Tribunal to conclude that the proposed operation would present more as a commercial operation than an incidental use associated with a residential premises and therefore not meet the criteria of 'compatible with and complementary to residential development'. 98 In terms of the assessment of the potential amenity impacts of the proposal, the Tribunal concluded the potential of the proposed bed and breakfast accommodation to have an adverse impact on the amenity of surrounding properties could not be discounted. 99 For these reasons the Tribunal concludes that approval of the proposed bed and breakfast accommodation at the subject site would not accord with the principles of orderly and proper planning.
Conclusion 100 The Tribunal is persuaded that there are significant concerns with the proposed bed and breakfast operation. These arise from intensity of the operation in terms of the number of patrons proposed and the nature of its presentation which can be characterized more as a commercial operation than an incidental use associated with a residential dwelling. The Tribunal also found that the potential of the proposed bed and breakfast accommodation to have an adverse impact on the amenity of surrounding properties could not be discounted. 101 In this context and considering all of the evidence before it in this matter, the Tribunal therefore concludes that the proposed development is not consistent with the relevant objectives of the planning provisions and is contrary to orderly and proper planning. 102 For these reasons the proposed development warrants refusal.
Orders |