Litis and Anor and Shire of Kalamunda
[2006] WASAT 130
•23 MAY 2006
LITIS & ANOR and SHIRE OF KALAMUNDA [2006] WASAT 130
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 130 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:549/2005 | 14 DECEMBER 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 4 JANUARY 2006, 17 JANUARY 2006 & 21 FEBRUARY 2006 | |
| Coram: | MS J SMITHSON (SESSIONAL MEMBER) MS M CONNOR (MEMBER) | 23/05/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decisions of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | EVANGELOS LITIS DESPO LITIS SHIRE OF KALAMUNDA |
Catchwords: | Town planning – Child care centre – Access and parking – Traffic management – Sightlines – Council policy – Application dismissed |
Legislation: | Metropolitan Region Scheme Shire of Kalamunda Town Planning Scheme No 2, cl 5.10 State Administrative Tribunal Act 2004 (WA), s 29, s 29(5) Town Planning and Development Act 1928 (WA), s 8A Western Australian Planning Commission Planning Bulletin No 72 Childcare Centres |
Case References: | City Car Parks Pty Ltd v City of Perth (1985) 2 SR (WA) 301 Ervin Mahrer & Partners v Strathfield Council (2001) 115 LGERA 259 Perpetual Trustee Co Ltd v City of Stirling (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 22 of 1995; 7 September 1995) State Housing Commission & Sorrento Estates Pty Ltd v State Planning Commission (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 20 of 1992; 27 July 1992) |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is reaffirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : LITIS & ANOR and SHIRE OF KALAMUNDA [2006] WASAT 130 MEMBER : MS J SMITHSON (SESSIONAL MEMBER)
- MS M CONNOR (MEMBER)
- DESPO LITIS
Applicants
AND
SHIRE OF KALAMUNDA
Respondent
Catchwords:
Town planning – Child care centre – Access and parking – Traffic management – Sightlines – Council policy – Application dismissed
Legislation:
Metropolitan Region Scheme
(Page 2)
Shire of Kalamunda Town Planning Scheme No 2, cl 5.10
State Administrative Tribunal Act 2004 (WA), s 29, s 29(5)
Town Planning and Development Act 1928 (WA), s 8A
Western Australian Planning Commission Planning Bulletin No 72 Childcare Centres
Result:
1. The application for review is dismissed
2. The decisions of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicants : Mr M Hardy
Respondent : Mr D Nicholson
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
City Car Parks Pty Ltd v City of Perth (1985) 2 SR (WA) 301
Case(s) also cited:
Ervin Mahrer & Partners v Strathfield Council (2001) 115 LGERA 259
Perpetual Trustee Co Ltd v City of Stirling (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 22 of 1995; 7 September 1995)
State Housing Commission & Sorrento Estates Pty Ltd v State Planning Commission (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 20 of 1992; 27 July 1992)
(Page 3)
Summary of Tribunal's decision
1 These proceedings concerned an application for review of the refusal by the Shire of Kalamunda for a child care centre situated at No 245 Lesmurdie Road, Lesmurdie.
2 The application proposed the demolition of the existing residence on the site, and the development of a purpose built child care centre containing activity rooms and associated facilities including outdoor play areas.
3 The application refused by the Shire of Kalamunda proposed to access the site by a new crossover on Lesmurdie Road. During mediation, amended plans were submitted proposing the alternative of sharing an existing crossover through the car park of an adjoining shopping centre (Lesmurdie Shopping Centre) on Lot 50. During the hearing, consideration was given to this option, and also to the original proposal providing separate access to the site from Lesmurdie Road but with a prohibition on right turn movements out of the site.
4 The grounds for refusal essentially related to traffic management concerns in terms of the safety of motorists and pedestrians. Secondary issues concerned non-compliance with the Shire of Kalamunda's Child Care Policy or with draft Planning Bulletin 72 Child-care Centres issued by the Western Australian Planning Commission. Specific policy issues raised by the Shire related to access and parking, the incompatible appearance of the proposed building relative to adjoining residences, effluent disposal, and noise impact on adjoining residences.
5 The application for review was dismissed.
Introduction
6 The applicants are Mr Evangelos Litis and Mr Despo Litis (the applicants). The respondent is the Shire of Kalamunda (the Shire).
7 The applicants have applied to develop a child care centre at Lot 3 (No 245) Lesmurdie Road, Lesmurdie (site), on land which is dual zoned being "Residential R10" for the front portion and "Shopping" for the rear portion under the Shire of Kalamunda District Town Planning Scheme No 2 (TPS 2).
(Page 4)
8 In April 2005, the applicants submitted a development application to the Shire to demolish the existing residence on the site and replace it with "a purpose built structure, car parking and landscaping". The child care centre was 473.5 square metres in area and comprised painted concrete tilt panel walls, "Colorbond" roofing and outdoor play areas. It was proposed to accommodate 75 children aged 0 – 5 years with 14 staff and be operational from 7 am to 6.30 pm Monday to Friday. A car park with 22 bays was proposed to be accessed from a 6 metre wide new crossover to Lesmurdie Road. In May 2005, amended plans were submitted with the only modification being to the proposed drainage. A needs analysis accompanied the application claiming a need for this type of facility.
9 In accordance with Shire policy, adjoining neighbours were notified of the application. Five objections and one non-objection were received. Objections raised concern with increased traffic (particularly given the site's proximity to a local school and the shopping centre), potential traffic hazard, noise and signage.
10 On 18 July 2005, the application was refused by the Shire as:
"a) The proposal does not provide for safe and efficient traffic management and may jeopardise the safety of motorists and pedestrians in the vicinity.
b) The proposal fails to comply with the Western Australian Planning Commission draft Planning Bulletin on Child Care Centres."
11 During mediation, revised plans were submitted proposing that access to the site be by way of a shared crossover with the adjoining shopping centre from Lesmurdie Road. To accommodate access to the site from the adjoining shopping centre, two car bays would be lost resulting in a total of 20 bays provided. Only 13 staff were now proposed, although the number of children remained at 75. The new access arrangements were supported by the shopping centre owner who also owns the site the subject of the application. The parties agreed to proceed to hearing on the mediated proposal.
12 For the reasons set out below in more detail, the Tribunal has determined that the decision should be reaffirmed and the application dismissed on the grounds that the access arrangements were not satisfactorily resolved, either under the original proposal or the amended plans. In summary, the Tribunal's findings are:
(Page 5)
- i) The Tribunal is not satisfied that the traffic arrangements proposed or which could be required as a condition of approval, for separate or shared access to the centre, would be safe and efficient, and is concerned that the proposal may jeopardise the safety of motorists or pedestrians.
ii) The Tribunal accepts that the proposal, otherwise, generally complies with the Western Australian Planning Commission's (WAPC) draft Planning Bulletin 72 "Child-care Centres" (Bulletin 72) and any areas of non-compliance are minor. Therefore, if the access arrangements and associated parking arrangements could be satisfactorily resolved, there would be no other grounds to refuse the application.
iii) The design of the building is considered to be appropriate given its location between residential and commercial facilities, and the dual zoning of the site.
iv) Subject to the construction of the noise attenuation wall proposed by the applicants, noise is unlikely to have an adverse impact given the location of adjoining residences and the existence of the site adjoining a shopping centre and major road.
v) The Shire's effluent disposal requirements can be met and therefore conditioned accordingly.
The site and surrounds
13 The site has an area of 2028 square metres and contains a single residence accessed from Lesmurdie Road.
14 The site is adjoined on its northern boundary by Lesmurdie Shopping Centre (a local shopping centre) and to the south and east by single dwellings. Lesmurdie Road adjoins the southern boundary and vacant land containing a drainage lake is opposite. The site is approximately 80 metres south of the intersection of Lesmurdie Road and Rooth Road, with Lesmurdie Shopping Centre situated between this intersection and the site with the shopping centre car park having access from both roads. Both Lesmurdie Road and Rooth Road are classified as "District Distributors" with single lane flows in both directions. Both roads are bus routes.
(Page 6)
Planning framework
15 The site is zoned "Urban" under the Metropolitan Region Scheme. as mentioned, the site is dual zoned under TPS 2. The front portion is zoned "Residential R10" and the rear portion "Shopping". The Shire advised that it was intended that the "Shopping" zoned portion be integrated with the adjoining shopping centre, although no further information was provided to the Tribunal on the background to this objective. The proposed child care centre building is positioned within the "Shopping" zone.
16 Approval to the use of the site for a child care centre is required as this use is a discretionary use in both the "Residential" and "Shopping" zones.
17 Prior to determining applications for discretionary uses, the Shire is required to or may under cl 5.10 have regard to a number of factors of relevance to this application including the relationship of development to other development in the locality, the nature of roads giving access to the site, the parking facilities available, relevant policies, including policies of the Western Australian Planning Commission (WAPC), the preservation of amenity, and any submissions received by the Council
18 In December 2003, the Shire adopted a policy to provide guidance on the development of child care centres: Policy PS4.8 – Child Care Centres Policy (Policy). The objectives of the Policy are to provide child care centres in accordance with community needs and based on locational guidelines to minimise adverse impacts on existing neighbourhoods. Key provisions include a preference to be located in close proximity to community facilities, local centres, schools and public transport networks. Lot sizes need to be sufficient to accommodate parking, access, servicing, outdoor play areas, setbacks and landscaping. Buildings are to be consistent with the character of existing streetscapes. Parking areas are to be designed to maximise the number of drop off bays in close proximity to the front entrance, and to provide for safe and efficient traffic management. A traffic impact statement may be required. Referral of the application to neighbours and an on site sign inviting public comments are also required.
19 The application was also assessed under the provisions of Bulletin 72. The intent of Bulletin 72 is to promote a consistent approach in the development of child care centres in terms of location, site characteristics, design, traffic, access, noise and health impacts.
(Page 7)
The applicants' argument
20 The applicants called Mr Darren Evans, a town planner from Greg Rowe & Associates, and Mr Tony Shaw, a traffic engineer from Shawmac to give evidence in these proceedings.
21 A "Child Care Services Needs Analysis", prepared by PRDnationwide, supported the applicants' contention that "the current level of demand for child care services in the area is running substantially ahead of supply, and concludes that the establishment of a new 75 place service is clearly indicated".
22 The portion of the site zoned "Shopping" is part of the "Local Centre" designation of the adjoining shopping centre under the Shire's local commercial centre. Under the WAPC's Metropolitan Centres Policy, local centres should contain "community facilities". Mr Evans argued that the child care centre was therefore appropriately located.
23 Mr Evans also contended that the proposal complied with Bulletin 72, in that the child care centre:
a) would be strategically located to maximise the benefit to the community being in a local centre and surrounded by a residential catchment, near education facilities and public transport;
b) would be compatible with adjoining uses and is a contemplated use in both the "Shopping" and "Residential" zones in which it is located;
c) was of a sufficient size and dimension to not impact on the amenity of the area being on a regular shaped lot substantially larger than the Bulletin 72 requirement of 1000 square metres allowing a design which could minimise any impact;
d) was supported by a needs analysis confirming demand existed for the development;
e) did not propose access from a local street where there could be adverse impacts on residential amenity;
f) would not be adversely impacted on by adjoining uses which are low intensity; and
g) was well set back from Lesmurdie Road thus minimising adverse noise impacts on the centre from this road.
(Page 8)
24 Mr Evans acknowledged that Bulletin 72 also stated that access should not be from a major road or be in close proximity to a major intersection where there may be safety concerns. He did, however, refer the Tribunal to the findings of the "Traffic Impact Assessment" by Shawmac which indicated that safety was not a factor for concern.
25 In terms of the Shire's Policy, Mr Evans contended that the proposal met the requirements of that Policy, being in close proximity to commercial and educational facilities, and public transport; was of sufficient size to accommodate the facility; met the required effluent disposal requirements; and displayed elements of both a residential dwelling and a commercial enterprise providing a transitional building between the shopping centre and residential properties, as was appropriate for a dual zoned site.
26 In the planning officer's report to Council in July 2005, the appearance of the child care centre was described as being "akin to a residential dwelling". The report also noted that:
"From a planning perspective, the proposal has some merit being located in close proximity to schools, a local commercial centre and on a main transport route. It is acknowledged that the proposal meets the policy requirements with respect to building design, operating hours and number of parking bays."
27 In terms of the shortage of one car bay required by TPS 2 resulting from the revised proposal, the applicants asserted that "suitable reciprocal rights of parking and access agreement can be entered into by the owners of both sites, which will alleviate the one car bay shortfall". This claim was on the basis that there was adequate room for any new parking that may be required on the shopping centre site noting that Shawmac formed the view that there was adequate surplus parking available in the shopping centre.
28 In this regard, the applicants also owned the adjoining shopping centre and agreed to the shared access arrangements, and "would be prepared to enter into suitable and appropriate arrangements to enable the implementation of the child care centre development".
29 The applicants argued that noise impact on neighbours was not an issue. The development involved up to 1.7 metres cutting of the site and the erection of a retaining wall, then a fence along the southern boundary which would achieve a 3.3 metre noise abutment wall. Further, the adjoining residential property to the south was on a large lot and had
(Page 9)
- outbuildings adjoining this boundary. The play area adjoining the southern boundary was designated for use by 0 – 2-year-olds who spend little time outdoors. Similarly, to the east, the proposed cutting of the site by up to 1.5 metres and the erection of a retaining wall would result in a 3.3 metre noise abutment wall. The adjoining residential property to the east is also on a large lot and has an outbuilding adjoining the common boundary. The play area adjoining the eastern boundary was designated for use by 2 – 3-year-olds. The outdoor play areas for the older children where noise could be a factor adjoins the Lesmurdie Shopping Centre car park to the west.
30 The "Traffic Impact Assessment" by Shawmac indicated that in terms of the existing situation, the crash history at the intersection of the Lesmurdie Road/Rooth Road intersection did not indicate any unacceptable hazard and there were very low pedestrian counts on the eastern side of Lesmurdie Road and across the intersection.
31 On the basis of a separate new access to the child care centre, the maximum movement of traffic into and out of the site was predicted to be 49 vehicles during the peak (afternoon) period. Shawmac estimated that the development would increase vehicle numbers on Lesmurdie Road by about 50 vehicles per hour (vph) and on Rooth Road by no greater than about 20 vph. As such "increased traffic on the adjacent roads … is likely to be negligible and without any measurable impact". A similar conclusion was drawn in terms of the operational performance of the Lesmurdie Road/Rooth Road intersection. It was noted that the current level of peak hour traffic on both roads is well below theoretical capacity for roads of this category.
32 With regard to sightlines, sufficient sight distance for a new access to the centre is available to the north, whilst sight distances to the south are potentially affected by the curved alignment of Lesmurdie Road and the existence of vegetation on the inside of the curve. A sight distance of 85 – 90 metres was estimated. However, for a design speed of 60 kilometres per hour, the desirable minimum sight distance for traffic exiting the site is 71 metres. As such, the available sight distance "is considered adequate and exiting vehicles will have sufficient sight distance to enter the traffic stream safely". Nevertheless, Shawmac recommended the removal of the overhanging vegetation inside the curve to improve sightlines. For right turning traffic out of the site, to avoid traffic having to slow, a time of 14 seconds is required equating to a sight distance of 233 metres. Whilst this is not available to the south, Mr Shaw (of Shawmac) stated that "the impact on northbound traffic was observed
(Page 10)
- to be minimal with little if any evidence of northbound traffic being forced to slow to allow for traffic entering Lesmurdie Road from the … site".
33 Based on the level of pedestrian usage on the eastern side of Lesmurdie Road and the clear sight distances along the footpath from the proposed access, Shawmac concluded that "there is unlikely to be conflict between pedestrians and vehicles".
34 To overcome concerns with sightlines to the south, the applicants initially proposed left in/left only and a possible reduction in the speed limit adjoining the site. However, following mediation, it was proposed that the access to the child care centre be modified to share the existing crossover with the adjoining shopping centre therefore addressing the Shire's concern with an additional crossover to Lesmurdie Road. This would improve sightlines to the south, enhancing road safety and would promote common purpose visits to both centres reducing the total number of trips. A revised traffic assessment of the impact of this access arrangement on the Rooth Road/Lesmurdie Road intersection indicated that the intersection would perform satisfactorily with queue lengths minor and would not result in back up of traffic waiting to access the site. Furthermore, as the existing access point is further north, the available sight distance to the south for vehicles turning right out of the site is greater than if a new access point was provided from the site. As such, the safety for road users is enhanced.
35 In terms of parking, the original proposal met the Shire requirement of 22 car bays, therefore Shawmac concluded that the peak total parking demand for the centre was 22 bays and that, as this number of bays was being provided, it was not likely that parking demand will exceed supply. For the revised proposal with shared access where only 20 bays were provided, it was Mr Shaw's contention that "the provision of parking is considered to be consistent with the predicted demand".
36 In terms of the Shire's policy requirement for "drop off/pick up bays", the applicants argued these could only be provided for corner sites where through traffic flow through a car park could be achieved. It was further argued that drop off bays should only exist at schools as, with child care centres, it is essential for parents to escort their child into the centre to be registered and for safety reasons. Accordingly, drop off bays should not be a policy requirement. Mr Evans also tabled the results of his survey of four other child care centres in the Shire, none of which provided designated drop off or pick up bays.
(Page 11)
37 Mr Evans contended that, in terms of the planning merits of the application, the revised proposal with shared access, was not materially different from the originally refused proposal.
The Shire's argument
38 Ms Sue Burrows, the Executive Manager of Planning and Development Services of the Shire, and Mr Garry Mason, a traffic engineer with Traffic and Transport Solutions acting for the Shire, provided evidence to the Tribunal.
39 A report to Council in July 2005 on the original application (that is, proposing separate access) noted the following:
a) The Policy requirement of maximising the number of drop off and pick up bays has not been met with no such bays provided. There is limited manoeuvring area provided and the car park layout is not conducive to rapid drop off and pick up arrangements;
b) Due to the recent construction of two child care centres in Gooseberry Hill, these suburbs should not form part of the catchment which suggests that the demand for the centre is insufficient;
c) Eight submissions were received to advertising of the proposal resulting in five objections, one conditional non-objection and two non-objections. Issues raised in objections included high numbers of traffic and pedestrians using the shops and nearby school will create a safety issue, the noise impact on surrounding residents, and signage will be out of keeping with the locality;
d) No signage details were submitted and would be the subject of a separate application;
e) With regard to noise, whilst accepting the use would be "low level commercial" and restricted to standard operating hours, the outdoor play areas are in close proximity to neighbouring houses and could impact on the amenity of these properties. It was suggested that the play areas should be located adjoining the shopping centre to reduce noise impacts;
f) The required sight distances specified in the Shawmac report are not consistent with Austroads' recommendations with sight distances to the south insufficient to allow vehicles to
- exit the site safely. Austroads recommends a sight distance of 220 metres to allow traffic to flow unimpeded and a minimum of 130 metres to avoid collision whereas the existing sight distance to the south is only some 90 metres;
- g) The Shawmac report fails to examine the ramifications of three main access ways in close succession being Rooth Road, the shopping centre access and the proposed child care centre access, and any safety issues this may cause. In summary:
"combined with vehicles accessing the shopping centre and the nearby intersection, it is considered that the additional traffic generated from a child care centre on the subject property would provide a significant hazard to motorists and pedestrians."
- The compromise offered of "left in/left out" only effected by installation of a median would lead to other potential problems such as U turns and as such, the provision of an island in Lesmurdie Road would not be supported.
h) Notwithstanding the compliances with some aspects of Council's policy, vehicle access to the site and the nature of traffic on Lesmurdie Road does not provide for efficient traffic management and the application could not be supported accordingly.
i) Two nearby residents raised concerns with the Council that their amenity was already impacted on by noise from Lesmurdie Road and deliveries to the shopping centre which the proposed development would exacerbate this being a dangerous section of Lesmurdie Road. Vehicles parking on the verge already restricted views to oncoming traffic.
40 In response to the revised proposal (that is, shared access with the shopping centre):
a) Ms Burrows indicated that 21 car bays were required, whereas only 20 bays were proposed and there was still no provision for drop off or pick up with the long narrow design of the car park not facilitating this. Furthermore, "the narrow design of the car park is also likely to exacerbate traffic congestion within the carpark".
(Page 13)
- b) It was proposed by the applicants that surplus parking in the shopping centre car park could provide for any deficiency in parking for the child care centre. Ms Burrows argued that this would reduce the amount of parking available for the shopping centre, that a separate development on a separate lot should be self-sufficient in terms of parking, and the shopping centre car park required 80 bays for its own use but only 59 were provided, with a number of these occupied by refuse bins or used by delivery vehicles for loading/unloading at least three times each day. Construction of the access way into the child care centre site would result in the loss of a further two bays. Accordingly:
"the proposed use of the shopping centre car park for offsite parking and to access the child care centre is thus likely to have an adverse impact on the proper functioning and possible amenity of the shopping centre … This is considered to be contrary to orderly and proper planning".
c) An objection was received by the Shire from a number of tenants in the Lesmurdie Shopping Centre objecting to the proposal. Their main concern was that the limited parking at the shopping centre would be utilised by patrons of the child care centre thereby reducing the amount of parking available for their customers and affecting trade. It was stated that often the shopping centre's parking bays are blocked by delivery vehicles and, if there were joint access and parking arrangements with the child care centre, accidents will occur.
d) Whilst the shared access arrangements improved sightlines, Ms Burrows raised concern that it would likely create significant traffic congestion within the shopping centre car park. Her concerns were that delivery trucks could potentially block access to the child care centre site, traffic to the site could queue back into the shopping centre in peak times given the absence of drop off facilities, and delays in right turn movements from the joint crossover in peak times may cause conflict with cars trying to enter the child care centre car park.
e) Concern was raised that the building's design was not compatible with the adjacent residences. It was described as
- presenting "as a commercial warehouse with prominent elevation to the street".
- f) Ms Burrows also referred to a memo from the Shire's health surveyor raising concern that the revised proposal did not meet the effluent disposal requirements for the number of staff and children proposed.
g) The revised plans did not show a masonry wall to reduce noise impact to adjoining residences and this would need to be constructed for the Shire to be satisfied that noise would not have an adverse impact on adjoining residences.
41 Mr Mason provided evidence for the Shire on the traffic impact of the revised proposal on the basis of the estimated increased usage of the shopping centre access. He estimated the sight distance to the south to be some 100 metres being constrained by the curvature of Lesmurdie Road and the existing verge vegetation. The Austroads' requirements for a 60 kilometres/hour road are 55 metres for "Approach Site Distance" (ASD), 105 metres for "Safe Intersection Sight Distance" (SISD) and 160 metres for "Entering Sight Distance" (ESD). As Lesmurdie Road is a major road, the SISD should be met as a minimum to avoid potential conflict between vehicles turning right from the shopping centre and northbound traffic on Lesmurdie Road.
42 Mr Mason also raised concerns that heavy delivery trucks doing daily deliveries to the shopping centre manoeuvred at slower speeds and therefore impacted on traffic efficiency in terms of the car park's operational efficiency. Given the safety issues associated with users of a child care centre, operational efficiency of parking areas is less than would be expected for less sensitive uses. Furthermore, the close proximity of the access for the centre to the crossover "has the potential for congestion and confusion on the part of motorists" creating the potential for queuing to occur into Lesmurdie Road. The car park design for the child care centre (requiring reversal from bays) would also impact on operational efficiencies. A further concern raised was the possible restricted visibility for motorists associated with a nearby Western Power (now Synergy) transformer.
43 Mr Mason concluded that, during morning and afternoon peak periods vehicles would queue blocking the access way to the child care centre. On the basis of his assessment, Mr Mason concluded that:
"there are significant traffic and safety issues and implications with the use of the shopping centre crossover by the proposed
(Page 15)
- child care centre development and its vehicular access point as currently proposed."
The issues for consideration
Traffic Management
44 The primary ground for the Shire's refusal, namely that the proposal does not provide for safe and efficient traffic management, and may jeopardise the safety of motorists and pedestrians in the vicinity, remained the major issue in this review. This was in terms of the original proposal under review, namely a separate new access to service the development, and the revised proposal for the development to share access with the adjoining shopping centre.
45 During the course of the hearing, expert evidence suggested the original proposal was likely to offer the safer option but only if right turn movements from the new child care centre crossover were precluded. As this was not a proposition that either of the parties had examined, the Tribunal ordered that the traffic engineers for both parties confer and present a joint statement addressing the implications of this option on the shopping centre car park and the local traffic network.
46 The major findings outlined in the joint statement were as follows:
a) Traffic wishing to exit to the north would be required to exit to the south and seek alternative routes. Using the residential "back" streets east of Lesmurdie Road would be a circuitous route and not likely to be used.
b) As an alternative, there is the potential for vehicles to use the adjacent shopping centre car park. This option is likely to be used by a large percentage of drivers and may impact on the use of the car park by shopping centre patrons.
c) Based on previous surveys of the occupancy of the shopping centre car park, and the pattern of under utilisation, this impact would be minimal and it is highly unlikely that demand would exceed bay availability. This would, however, require the agreement of the shopping centre owner and consideration of the issues previously raised by shopping centre tenants.
d) There is also the opportunity for motorists wishing to travel north to undertake a U-turn on Lesmurdie Road. Given a central median would need to be installed to restrict right turn
- movements from the site, motorists could do this U-turn at the southern end of the median. The width of Lesmurdie Road in this location is only 13 metres which is considered insufficient for a safe U-turn. Therefore U-turns should be prohibited and a "No U-turn" sign erected in this location. There is also the opportunity for U-turns at Lesmurdie Road and Grove Road or at Grove Road west of Lesmurdie Road. These are permitted and could be undertaken in a safe manner given the road environment in these locations.
- e) During the morning peak period there would be only low demand for vehicles to want to travel north from the site. However, in the afternoon the demand would increase with up to 10 vehicles wanting to turn right with the majority likely to use the shopping centre car park.
f) In terms of the potential for increased rear end crashes due to vehicles turning right into the site, Mr Mason felt that there could increase whereas Mr Shaw was of the opinion the likelihood for such conflict is very low.
g) Whilst prohibition of U-turns in Lesmurdie Road adjoining the site will eliminate the risk of conflict arising from such actions, this may need to be enforced if compliance became an issue.
h) The level of use of the adjacent shopping centre car park by child care centre patrons was agreed to be very low at all times and surveys had demonstrated that the car park was underutilised.
i) The separation between the shopping centre and the child care centre crossovers would be approximately 20 metres. This was considered to be sufficient to allow right turning vehicles entering the shopping centre car park to queue without adversely impacting on right turning traffic into the site and would be typical of many urban roads where crossovers to commercial properties are in close proximity. These commonly operate without introducing unacceptable levels of risk into the road environment.
47 A concept plan was provided to the Tribunal of a "possible configuration" to preclude right turn movements from the site and to separate entering and exiting traffic.
(Page 17)
48 Both traffic engineers confirmed that the sight distances for the movements associated with a "no right turn out" configuration exceeded all Austroads' requirements. The sight distance to the south was measured to be 115 metres which met all requirements except the ESD. However, meeting this requirement is not mandatory. Removal of a bottlebrush tree and trimming of other vegetation would improve visibility of the site for approaching motorists. This was recommended if the application was approved with or without right turn movements out of the site.
49 The Tribunal accepts the applicants' contention that amendments to the plan the subject of the review, to delete shared access with the shopping centre or provide a point of access to the child care centre from the shared access driveway does not constitute a variation the extent of which causes this to be a fresh application. Alternative access arrangements were canvassed through mediation as a potential solution to an issue raised by the Shire and do not alter "the fundamental characteristics of the proposal itself", which is for a child care centre that can operate with satisfactory access arrangements.
50 However, it remains the case that access to the site needs to be adequately resolved before any application can be supported. The Tribunal does not accept that the concept plan put jointly forward by Messrs Shaw and Mason in their joint statement as a "possible configuration" for future access arrangements has been sufficiently examined to be supported without more detailed review. Nor does the Tribunal accept that the matter can be resolved, as contended by the applicants, "by a condition … to the effect that access to and egress from [sic] the site be engineered in accordance with that Joint Report".
51 In the Tribunal's view, a satisfactory resolution to the access issue needs to be further developed. The applicants need to demonstrate that the proposed child care centre can either be integrated with the existing adjoining shopping centre in terms of access and parking or be separately accessed, without adversely impacting on the shopping centre parking supply or demand and vehicle loading and unloading arrangements. Given the site is partially zoned "Shopping" and is intended to be part of the shopping centre it is likely that there is some scope for an alternative integrated development over both sites.
52 The Tribunal agrees with the Shire that these alternative options give rise to different traffic management issues. In the option involving shared access with the shopping centre, inadequate information was provided by the applicants as to the implications for the shopping centre car park. The
(Page 18)
- option providing separate access from the child care centre site with no right turn also has implications on the shopping centre car park which has not been adequately examined. Nor has the capacity of Lesmurdie Road to accommodate U-turns. The Shire also rightly points out that the application should not rely on actions by the Shire to be acceptable, namely the removal of verge vegetation and installation of medians.
53 It is not accepted that the Tribunal can not impose conditions as if it were the Shire as, unlike City Car Parks Pty Ltd v City of Perth (1985) 2 SR (WA) 301, the proposed works to be undertaken (median installation) are on land under the control of the Shire and form part of the consideration of the original application. Therefore, the Shire, as owner, had the opportunity to consent to the works. The Tribunal, in the exercising of its review discretion as provided for in s 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
54 In addition, s 29(5) of the SAT Act provides that the decision of the Tribunal is deemed to be the decision of the decision-maker. The Tribunal, thus having the same powers as the decision-maker had when dealing with the application before it, is empowered to give consent to the works if deemed desirable.
Car Parking
55 In terms of the shortfall of one car bay under the revised proposal, the Tribunal accepts that this is a reasonable shortfall if it achieves an improved access arrangement and given there is likely to be some patronage from parents who collect children at the same time as visiting the shopping centre, thus allowing for some reciprocity. It is noted that under the original proposal the subject of this review, adequate parking was provided. The final design and configuration of the car park however, needs to be reviewed in the light of agreed or acceptable access arrangements and the Tribunal accepts the Shire's claim that the application should not be supported until this significant element of the proposal is detailed and assessed.
56 The Tribunal notes the debate about the requirement for drop off and pick up bays for child care centres. Notwithstanding that provision of such facilities is promoted in both the Shire and WAPC policies, it is agreed that this could be contrary to the operational requirements of child care centres whereby parents must leave their vehicles to enter centres to register or collect their children. The Shire argued that drop off and pick
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- up bays facilitate this, but the concept of drop off and pick up is contrary to the concept of parking. The policies should be reviewed accordingly having regard to current practices and safety considerations.
Building Design
Other Factors
58 It was agreed by the parties that compliance with the Shire's effluent disposal requirements could be met and conditioned accordingly, and the parties did not debate whether or not there was sufficient demand for the facility.
Findings and conclusion
59 For the reasons summarised below, the Tribunal has determined that the application for review be dismissed solely on the basis that it could not be conclusively demonstrated that access arrangements could be adequately managed. If traffic management issues can be overcome, the proposal, on all other planning grounds, could be supported. The main findings and conclusions of the Tribunal can be summarised as follows:
i) The Tribunal is not satisfied based on the expert evidence provided that the traffic arrangements proposed, or which could be required as a condition of approval for separate or shared access to the centre, would be safe and efficient, and is concerned that the proposal may jeopardise the safety of either motorists or pedestrians. The Tribunal accepts the proposition put forward by the Shire that there is insufficient information, and too many untested assumptions, for the Tribunal to approve the revised access arrangements and associated parking arrangements proposed during the hearing.
ii) The Tribunal accepts that the proposal otherwise generally complies with Bulletin 72 on child care centres and that any areas of non-compliance are minor. Therefore, if the access arrangements and associated parking arrangements could be satisfactorily resolved, there would be no other grounds to refuse the application.
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- iii) The design of the building is appropriate given its location between residential and commercial facilities, and the dual zoning of the site.
iv) Subject to the construction of the noise attenuation wall proposed by the applicants, noise is unlikely to have an adverse impact given the location of adjoining residences and the existence of the site adjoining a shopping centre and major road.
v) Effluent disposal requirements can be met and therefore conditioned accordingly.
60 On the basis that the issue of safe and efficient traffic management are not sufficiently demonstrated, the application for review is dismissed.
Orders
61 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is reaffirmed.
- I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J SMITHSON, SESSIONAL MEMBER
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