MACKENZIE and CITY OF STIRLING

[2015] WASAT 144

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MACKENZIE and CITY OF STIRLING [2015] WASAT 144

MEMBER:   MS L EDDY (MEMBER)

MR P DE VILLIERS (MEMBER)

HEARD:   16, 17 AND 18 SEPTEMBER 2015

DELIVERED          :   18 DECEMBER 2015

FILE NO/S:   DR 69 of 2015

BETWEEN:   RYAN MACKENZIE

LISA MACKENZIE
Applicants

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning ­ Development application ­ Child care centre ­ Residential zone ­ Residential uses adjoining site ­ Application of draft Western Australian Planning Commission bulletin ­ Application of local planning policy ­ Whether appropriate site ­ Traffic and noise amenity issues ­ Impact on amenity of locality

Legislation:

City of Stirling Local Planning Scheme No 3, cl 2.2, cl 2.3.2, cl 2.4, cl 4.2, cl 5, cl 9.4, cl 10.2, Pt 2
Planning and Development Act 2005 (WA), s 242, s 252(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67, Sch 2
State Administrative Tribunal Act 2004 (WA), s 2.31, s 37(3)
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013

Result:

Application successful

Summary of Tribunal's decision:

The application was to construct a two storey building on a vacant lot in a residential area and use it for the purpose of a child care centre.  The proposed child care centre was to be restricted to a maximum of 35 children in the three to four­year­old range.  It was proposed the centre would be open only between the hours of 8 am until 4.30 pm Monday to Friday, 48 weeks of the year.  The site did not comply with certain aspects of the respondent's local planning policies.  The respondent submitted the proposed development should be refused because it did not meet the policy requirements but more importantly because it would detrimentally impact on the amenity of the neighbouring residents.  The potential impact on the amenity of the residents was an important consideration in the decision made by the Tribunal.  However, the evidence presented by the applicants was effectively unchallenged.  That evidence was to the effect that there would be no unacceptable adverse impact on amenity caused by the proposed development.  The Tribunal accepted that evidence.  The Tribunal found that despite the non-compliance with some aspects of policy the proposed development met the objectives of those policies.  The Tribunal determined that the application should be conditionally approved.

Category:    B

Representation:

Counsel:

Applicants:     Ms B Moharich

Respondent:     Mr A Roberts

Solicitors:

Applicants:     Moharich and More

Respondent:     McLeods

Case(s) referred to in decision(s):

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Ienco and City of Melville [2007] WASAT 56

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119

REASONS FOR DECISION OF THE TRIBUNAL:   

Introduction

1. On 10 September 2014, Mr Ryan MacKenzie and Ms Lisa MacKenzie (applicants) applied for development approval from the City of Stirling (City or respondent) to construct a two storey building and use it, and the remainder of No 131 (Lot 75) Duffy Road, Carine (site), as a child care centre.  The development proposal was advertised for public consultation and in response 32 submissions objecting to the proposal were received by the respondent.  In addition, two petitions were received; one of which supported, and the other which objected to, the development proposal.  On 3 February 2015, the respondent refused the application on the basis that '[t]he site does not meet the City's requirements in terms of area, and given the relatively small area for children to play, the proposed use will have an adverse impact on the adjoining residents'.

2. On 26 February 2015, the applicants lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision. In the course of proceedings in the Tribunal, the applicants submitted an amended proposal, which was then considered by the respondent pursuant to s 31 of the State Administrative Tribunal Act2004 (WA) (SAT Act). On 16 June 2015 the respondent reaffirmed its original decision to refuse the development application. Consequently, it is this decision that is now the subject of this review.

3. In March 2015, Ms Chantelle Power and Mr Viv Mascarenhas, Ms Janet and Mr Craig Stephens, Ms Pauline and Mr Pete Barnett and Mr Keith and Ms Marion Cooke (intervenors), applied under s 37(3) of the SAT Act for leave to intervene in the proceedings, or alternatively for leave to make submissions in the proceedings pursuant to s 242 of the PD Act. The Tribunal granted the intervenors limited leave to intervene in the proceedings in order to bring evidence of a traffic expert in relation to traffic amenity issues.

Site and locality

1. The Tribunal was assisted in its understanding of the site and its locality by a site view at the commencement of the hearing.  The intervenors, who are the owners of the four adjoining properties to the north, south and west, granted the Tribunal members access to their rear gardens during the course of that view.

2. The site is located on the western side of Duffy Road in Carine.  Duffy Road generally runs in a north­south direction and is located approximately 200 metres to the west of the Mitchell Freeway at its northern end and approximately 800 metres west of the freeway at its southern end.  It provides a link from Beach Road at its northern end to Reid Highway at its southern end.  The site is located approximately 560 metres south of Beach Road.

3. The site is 840m² in area and is currently vacant.  Dwellings on Duffy Road in the vicinity of the site are generally single storey and set well back from the road.  There are some double storey dwellings in the locality, including the neighbouring property to the north.  The adjoining properties to both the north and south of the site have their main outdoor areas located at the rear of their sites.  In addition, two properties to the west, accessed off Parkvista Grove, have rear gardens which, either directly or obliquely, back onto the subject site.

4. There are two properties on Duffy Road which are used for non­residential purposes: one is a dental surgery located on the corner of Duffy Road and Monyash Road and the other is a service station located on the corner of Duffy Road and Beach Road.  Neither of these uses is in the immediate vicinity of the subject site.

The proposed development

1. The amended proposal involves the construction of a two storey building located slightly to the west of the centre of the subject site.  The building is similar in appearance to a residential dwelling and no real issue is taken by the respondent with respect to the building.  A carpark comprising nine car bays is provided in the front setback area.  Of these bays, two are nominated for staff, one is a disabled bay and one is a five minute 'drop off/pick up' bay.  The amended proposal also contemplates two car bays for use by staff located within the garage adjoining the building.  To the rear of the building is a grassed play area with a landscaped hedge provided along the northern, western and southern boundaries.

2. In relation to the use, the applicants propose a child care centre that is limited to children in the two years prior to compulsory schooling, described by the applicants as a three­year­old and four­year­old early learning centre (the children may in fact be anywhere between 2½ and 5½ years old).  It is proposed that the centre would open at 8 am and close at 4.30 pm Monday to Friday, and will close for four weeks over the Christmas period each year.  A maximum of 35 children are to be catered for, with the children split into two groups: one starting at 9.15 am and finishing at 2.45 pm and the other starting at 9.30 am and finishing at 3.00 pm.  Each of the two groups of children will have a total of one hour allocated for structured play in the outside area to the rear of the proposed building separately; one group between 10.30 am to 11.00 am and 12.15 pm to 12.45 pm, and the other group between 11.00 am to 11.30 am and 12.45 pm to 1.15 pm.  It is proposed that there would generally be four staff present during opening hours, although sometimes an additional staff member may be present.

Planning framework

1. The site is zoned Residential under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme) and is designated as R20 density.  The Zoning Table in LPS 3 specifies that 'Child Care Premises' are an 'A' use in the Residential zone.  Therefore that use is not permitted unless the respondent, now the Tribunal, has exercised its discretion by granting planning approval after advertising the proposal in accordance with cl 9.4 of LPS 3.

2. Clause 4.2 of LPS 3 identifies the objectives for the Residential zone:

   a)To provide for residential development at a range of densities with a variety of housing type and size, to meet the current and future needs of the community.

   b)To provide for a range of non-residential uses, which are compatible with and complementary to residential development.

3. Clause 5.3.1 of LPS 3 states that, except as otherwise required in the Scheme or a local planning policy, non-residential development within the Residential zone is to comply with the requirements of State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 (Codes).  There is no other requirement in LPS 3 relevant to the amended proposal, so the amended proposal must comply with the Codes.

4. Clause 10.2 of LPS 3 sets out matters to be considered when determining an application for planning approval.  However, following the commencement of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations), this clause has effectively been replaced by the deemed provision in cl 67 of Sch 2 of the Regulations. This requires the Tribunal to have due regard to 27 specified matters 'to the extent that, in the opinion of the [Tribunal], those matters are relevant to the development the subject of the application'. The matters specified in cl 67 of Sch 2 of the Regulations relevant to determination of this matter are:

   (a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

   (b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

   …

   (e)any policy of the Commission;

   …

   (g)any local planning policy for the Scheme area;

   …

   (m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including,  but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

   (n)the amenity of the locality including the following ­

   (i)environmental impacts of the development;

   (ii)the character of the locality;

   (iii)social impacts of the development;

   …

   (x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

   (y)any submissions received on the application;

   …

   In addition, cl 5.1 of LPS 3 provides:

   Compliance with Development Standards and Requirements

   5.1.1Any development of land is to comply with the provisions of the Scheme and have due regard for any relevant Local Planning Policies effective under the Scheme.

   5.1.2Unless otherwise specified in the Scheme development requirements shall be determined by Council having regard to any relevant Local Planning Policies adopted under the Scheme.

5. At cl 5.5, the Scheme states that:

   Variations to Site and Development Standards and Requirements

   5.5.1Except for development in respect of which the Residential Design Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.

   5.5.2In considering an application for planning approval under Clause 5.5.1, where, in the opinion of the Council, the variation is likely to affect any owners or occupiers in the general locality or adjoining the site which is the subject of consideration for the variation, the Council is to -

   a)consult the affected parties by following one or more of the provisions for advertising uses under Clause 9.4; and

   b)have regard to any expressed views prior to making its determination to grant the variation.

   …

   5.5.4The power conferred by Clause 5.5.1 may be exercised only if the Council is satisfied that -

   a)approval of the proposed development would be appropriate having regard to the criteria set out in Clause 10.2; and

   b)the non-compliance will not have an adverse effect upon the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality.

6. In August 2009 the Western Australian Planning Commission published Planning Bulletin 72/2009 Child Care Centres (Bulletin).  The purpose of the Bulletin is:

   This planning bulletin outlines the revised child care centre guidelines and aims to:

   a)differentiate between child care related activities operating in existing residential area, such as family day care that takes place in dwellings, and non-residential child care activities;

   b)outline a consistent policy approach to planning for child care centres; and

   c)advise of planning considerations in relation to the location and development of child care centres.

7. Part 3 of the Bulletin is headed Policy Guidance and relevantly states:

   The following section provides policy provisions to guide local governments in the preparation of scheme provisions and local policies on child care centres.

   The policy provisions that follow include an introduction, objectives and provisions concerning appropriate location of child care centres, desirable site characteristics, design matters and dealing with traffic and noise impacts.

8. The respondent has a number of local planning policies relevant to this matter. 

9. Firstly, there is Local Planning Policy 6.4 Child Day Care Centres (LPP 6.4).  The objectives of LPP 6.4 are to 'provide for the establishment of Child Day Care Centres in appropriate locations' and '[t]o minimise any adverse impact on the amenity of the area'.  LPP 6.4 contains specific provisions that apply when assessing an application for a Child Day Care Centre in a residential zone.  Relevantly, these provide:

   Specific Provisions for a Residential Zone

   In assessing an application for a Child Day Care Centre in a residential zone, the Council shall have regard to the following:

   Location Criteria

   Local Land Uses

   To minimise impact on residential areas, to allow improved servicing and to promote multi-function trips, locations adjacent to non-residential uses, particularly shopping centres, medical centres, schools and other educational facilities and civic uses are preferred.

   Road Hierarchy

   In assessing the suitability of a site, consideration will be given to impact on residential amenity.

   In this regard, preferred locations and configurations are those which do not propose direct access onto Primary Regional roads, or Local Access roads. The use of District Distributor B Roads and Local Distributor Roads are generally preferred.

   Unsuitable Locations

   Because of the conflicts with residential amenity, traffic and parking access, Child Care Centres will generally not be supported in the following locations / types of site:

   •Cul de sacs;

   •Sites with sole vehicular access from a longer, undedicated or predominantly residential ROW, under-width street or laneway;

   •Rear battle-axe and strata sites;

   •Multiple dwellings;

   •Lots under 900m² in area; and

   •Lots with less than a 20m frontage.

   Amenity

   To reduce impact on residential amenity, the following design requirements shall apply:

   •Bulk, scale and architectural style of buildings to harmonise with the local streetscape;

   •Setbacks and other design requirements specified in the Residential Design Code to be applied to developments in residential zones;

   •Activity room windows facing residential properties to be double glazed and not be able to be opened; and

   •Unless otherwise approved by Council, with due regard to impact on residential amenity, the hours of operation of Centres will be restricted 7.00am to 6.30pm on weekdays and 8.00am to 6.00pm on weekends.

10. LPP 6.4 also specifies that 'any variations to this policy will be assessed against the objectives of the policy'.

11. Secondly, there is Local Planning Policy 6.6 Landscaping (LPP 6.6).  It is expressly stated in LPP 6.6 that the policy applies to non-residential uses in residential areas such as child care centres.  The objectives of LPP 6.6 are:

    •To promote improved landscaping provision and design;

    •To improve the visual appeal of development, screen service areas and provide a buffer to boundaries;

    •To provide shade and 'green relief' in built up areas; and

    •To promote more environmentally sustainable landscaping.

12. In relation to commercial developments, LPP 6.6 states that:

    … applications for commercial development should contain a minimum of 10% landscaping of the total site area.  This must include 'soft' landscape buffers, where setbacks are provided, to adjacent properties with a minimum width of 1.5 [metres].

13. Finally, there is Local Planning Policy 6.7 Parking and Access (LPP 6.7).  The objectives of LPP 6.7 include:

    a)To facilitate the development of adequate parking facilities;

    …

    c)To ensure that a major parking problem is unlikely to occur;

    d)To ensure that car parking areas and accessways do not have a detrimental impact on the character and amenity of an area[.]

14. Clause 5 of LPP 6.7 sets out the number of parking bays required to be provided for various uses and activities.  Relevantly to this matter, it provides that for child care premises it is necessary to provide one bay per staff member and one bay per seven children.

The issues

1. The parties expressed the issues to be decided by the Tribunal in this matter differently in their respective statements of issues, facts and contentions.  At the hearing, both parties agreed with the following formulation of the issues.

   1)To what extent is the proposed development consistent with the relevant local planning policies in relation to child day care centres, landscaping and parking?

   2)What regard, if any, should be given to the provisions of the Western Australian Planning Commission's Bulletin in determining the main issue?

   3)What is the compatibility of the proposed development with its setting?

   4)What is the relationship of the proposed development to development on adjoining land?

   5)How does the proposed development affect or impact on the preservation of local amenity?

   6)Having regard to the answers to questions (1) to (5) above, as well as to the aims and provisions of the Scheme and the objectives of the Residential zone, and to the requirements of orderly and proper planning, what is the correct and preferable determination of the applicant's development proposal to build a child care centre at the site?

Issue 1:     consistency with local planning policies

1. The respondent submitted that the proposal was not consistent with the relevant local planning policies.  In particular, it said that the proposal does not satisfy:

   a)the location criteria and the minimum lot size in LPP 6.4;

   b)the landscaping requirements for 'soft' landscaped buffers in LPP 6.6; and

   c)the parking design requirements in LPP 6.7.

2. The importance of this, the respondent says, is that that there is an emphasis in LPS 3 on applying relevant policies in determining development applications; cl 5.1 of LPS 3.  In addition, the respondent says that where a development proposal does not meet the requirements of relevant policies, cl 5.5 of the Scheme must be applied in determining whether to approve the proposal.  In this case, the objection of the neighbours and the adverse effect that the proposed development would have upon the inhabitants of the locality means that the requirements of the relevant policies should not be varied.

3. In relation to the location criteria in LPP 6.4, the applicants accepted that the site is not within or adjacent to a commercial centre, nor is it adjacent to any other non-residential use.  However, they submit that the site is located on a 'District Distributor B Road' and, apart from the size of the lot being less than 900m², it is not otherwise within any of the 'unsuitable' locations specified in LPP 6.4.  The applicants accepted that the proposed landscaping 'buffer' at the rear of the site, being 900 millimetres, was less than the 1,500 millimetre width specified in LPP 6.6.  The applicants did not accept that there was any failure to comply with the requirements of LPP 6.7 with respect to proposed parking on the site.

4. The applicants disagreed with the respondent about the applicability of cl 5.5 of LPS 3 to the proposed development.  They pointed to the references to variation within the policies themselves and also relied upon the general principles relating to the application of policies enunciated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission[2002] WASCA 276; (2002) 122 LGERA 433, at [24]. The applicants also submitted that little weight should be given to requirements within the relevant policies that had not been consistently applied by the respondent in previous decision­making: see Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119, at [51].

5. The applicants submitted that the minor variations from the relevant policies were not significant given that the proposed development would not have any adverse impact on the amenity of the neighbouring residences.  They also submitted that little weight could be given to these particular policy requirements because the respondent had a history of approving other child care centres that did not meet these same policy requirements.

6. The Tribunal is satisfied that the proposed development does not meet all of the location criteria of LPP 6.4. 

7. Firstly, the site is 840m² and therefore less than the preferred 900m².  In addition, it is not within or adjacent to a commercial centre.

8. LPP 6.4 is worded in such a way that it does not impose any necessary requirements in relation to the location of child care centres.  Rather, it specifies 'preferred locations' and locations that will 'generally not be supported'.  Although the policy includes headings for 'location criteria' there is in fact no criteria required to be complied with imposed by LPP 6.4. 

9. The two town planners who gave evidence, Mr Aaron Lohman and Mr Robert Slarski, agreed that there were five child care centres within the City that did not comply with aspects of the location criteria in LPP 6.4.  Similarly to the applicants' proposal, three of the sites did not comply with the minimum lot size preferred under LPP 6.4.  Mr Slarski gave evidence that two of the sites to his knowledge were approved after LPP 6.4 had been adopted.  He was not aware of the position in relation to the other sites.  Neither of the planners could comment as to whether any or all of those previously approved child care centres had any factors different from the applicants' proposal as they were not aware of all of the details of those previous approvals.

10. The Tribunal is satisfied that the location criteria of LPP 6.4 have not been applied by the respondent as if they were mandatory requirements.  Such an approach is sensible and to be expected given the way that the policy is worded.

11. LPP 6.6 is expressed mostly with positive requirements, although there are some matters that the developer is merely 'encouraged' to do.  In relation to the specific landscaping provision for commercial developments, there 'must' be a minimum landscaping and that 'must' include, where setbacks are provided, a minimum width of landscaped buffers.  The Tribunal is satisfied that this is a requirement imposed by LPP 6.6 that applies to the applicants' proposal.

12. The reference in LPP 6.6 to 'where setbacks are provided' must mean that where there is insufficient space for the minimum width of landscaping because a structure or building extends into the relevant area, the requirement will not apply.  In this case, the building is located well outside of the relevant setback areas and does not impede the planting of the minimum width of landscaping.  The minimum width of the landscaping buffer appears to be somewhat arbitrary and no evidence was provided as to why that particular width might be considered necessary.

13. It was not in contention that the proposed development contemplates only 900 millimetres rather than the required 1,500 millimetres of landscaping to the rear of the site in order to provide for sufficient space for the proposed outdoor play area.  To this extent, the proposed development does not comply with LPP 6.6.

14. The variation provision in LPP 6.6 is worded somewhat awkwardly.  The ordinary words used indicate that only a residential application that does not comply with the requirements of the policy may be considered for variation.  However, given that a policy should not be inflexibly applied nor can it oust the discretion of the respondent, or the Tribunal, to determine a development proposal on its merits, this cannot be taken as a restriction on consideration of variation of the policy for non-residential applications. 

15. In relation to whether the proposed development complies with LPP 6.7, the respondent asserted that the requirement that car parking must be designed in accordance with the Australian Standard AS 2890 had not been met.  In addition, it was submitted that the proposed development did not comply with the requirements that car parking bays shall not be provided in tandem and that there must be a separate setting down and picking up area.  The Tribunal heard evidence from Mr Donald Veale and Ms Heidi Herget-Lansdell on these topics. 

16. Mr Veale gave evidence that as the proposed car parking bays are 2.5 metres wide, they did not comply with AS 2890, which requires bays of 2.6 metres width.  Ms Herget-Lansdell disagreed with this.  She explained that the Australian Standard required off-street car parking bays to be between 2.4 metres and 2.6 metres wide.  Assessment of the exact width required depends on an assessment of the type of activity that the car parking area will face.  It was her assessment that the type of activity created by the proposed development was 'lower turnover'.  She explained that the assessment requires consideration of factors such as familiarity with the carpark and turnover of cars within the car bays.  Ms Herget­Lansdell also stated that the Australian Standard was not intended to be prescriptive in relation to car bay width; it provides recommendations that experts use in working out an appropriate design for a car parking area.  She explained that she had demonstrated in her design that the car bay width had no impact on access or egress for the proposed carpark. 

17. Mr Veale stated that car bays that are 2.5 metres instead of 2.6 metres wide would slow down turnover within the carpark and this would impact on the adequacy of the proposed carpark to accommodate the anticipated need for parking associated with the proposed development.  Mr Veale opined that a wider car bay made it easier to open car doors.  However, Mr Veale did not provide any reason, calculations or modelling to explain why a difference of 0.1 metre in the width of car bays would be expected to make a significant difference in turnover in this particular proposed carpark.  Mr Veale did not quantify what difference in turnover speed could be expected to be caused by the 0.1 metre difference in car bay width.

18. The Tribunal preferred Ms Herget-Lansdell's opinion to Mr Veale's in relation to this issue.  The Tribunal could not identify the foundation for Mr Veale's opinion as he failed to provide any reasoning to support his opinions.  Ms Herget-Lansdell's opinion was supported by reasoning that she readily explained.  Her reasoning was logical and consistent with the provisions of the Australian Standard that she referred to.

19. In relation to the tandem parking issue, Mr Veale opined that as there were car parking bays located directly in front of the garage where two staff car parking bays were located, the proposed carpark contemplated tandem parking.  Ms Herget-Lansdell disagreed.  She stated that this configuration was not tandem parking.  It was her opinion that, given that the staff will necessarily have to be present from before parents would be expected to use the car bays and stay until all of the children had been picked up, the arrangement was an efficient and effective way of utilising space.  As a matter of logic, the Tribunal accepts that in a literal sense the two staff parking bays do contemplate tandem parking, and to this extent, the proposal does not comply with LPP 6.7.

20. Both of the experts agreed that it was difficult to see how a set down and pick up area could actually be used at a child care centre such as that proposed by the applicants.  The children attending the centre would be of an age that they would have to be taken by an adult into the child care centre and picked up from within the centre.  It would not be appropriate, or realistically possible, to drop a child of the age range catered for by the proposed development in a pick up and set down area.  In any event, Ms Herget-Lansdell said that the proposal did contemplate a single car bay to be designated as the 'set down and pick up area'.  Mr Veale did not consider that this car bay met the requirements of LPP 6.7 as it was not separate from the car parking area.  The Tribunal accepts that the proposed set down and pick up area is not separate from the car parking area.  The Tribunal finds that the proposed development does not comply with this aspect of LPP 6.7.

21. The Tribunal does not accept that cl 5.1 and cl 5.5 of LPS 3 have to be applied where there is a need to consider variation to the respondent's local policies.  The respondent relied heavily on the words 'prescribed under the Scheme' in cl 5.5.1 in its submission that this provision must be applied when considering any variation from a provision from a local planning policy.  The Tribunal accepts that ordinarily a reference to matters prescribed or made under an Act would include subsidiary legislation.  However, it is difficult to understand what could be meant by 'a standard or requirement prescribed under' a Scheme.  There is neither any ability to make anything akin to subsidiary legislation under a Scheme; nor is there any ability to prescribe anything under a Scheme, as a town planning scheme itself is subsidiary legislation.  Clause 2.2 of LPS 3 allows the respondent to 'prepare' and 'adopt' a local planning policy.  Clause 2.3.2 provides that any such policy is not part of the Scheme and does not bind the respondent, but is a matter of which the respondent is to have due regard, along with the objectives which the policy is designed to achieve.

22. In cl 5.1.1 of LPS 3 there is a distinction made between the need for development proposals to comply with the Scheme and the need to have due regard for any relevant local planning policies.  This is consistent with the well­established law about the role of policies.  When one is required to have due regard to a policy there is not, strictly speaking, any need to 'vary' the policy in relation to any particular development proposal.  Rather, it is necessary to consider whether the development proposal should be approved despite any failure to comply with a requirement of a relevant policy.  In any event, it is not consistent with the concept of 'due regard' and the role of policy in decision­making to impose a requirement that a failure of a development proposal to comply with a policy will result in refusal unless the specific criteria in cl 5.5 of LPS 3 are satisfied.  Such an approach essentially attempts to elevate policy to the status of subsidiary legislation.  It is unlikely that the drafters of LPS 3 would have ever intended to do such a thing.

23. In addition, local planning policies provide detailed guidance in relation to various separate and distinct types or aspects of development.  As such, it would be expected that they would have different objectives.  It is difficult to see why it would be considered useful to require any variation to any aspect of those different policies to be decided by reference only to whether the non­compliance would have any adverse effect upon occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality.  Further, cl 5.5 of LPS 3 does not provide for any consideration of the objectives of a local planning policy.  If this clause applied to the consideration of variations from local planning policies it is difficult to see how it sits comfortably and consistently with cl 2.3.2 of LPS 3.  In addition, the reference to variation within the policies themselves supports the view that cl 5 of LPS 3 was never intended to be used in relation to consideration of variation of policies. 

24. The Tribunal finds that, in this particular Scheme, the reference to standards or requirements prescribed under the Scheme does not include local planning policies adopted pursuant to Pt 2 of LPS 3.  In considering the applicants' proposal, the Tribunal must consider the ways that the proposal varies from the requirements of the relevant policies against the objectives of those policies.

Issue 2:     weight to be given to the Bulletin

1. The Bulletin is, on the face of the document, a document that provides guidance to local governments in the preparation of scheme provisions and local policies on child care centres.  It is not itself a policy of the Western Australian Planning Commission.  In this case, the respondent has adopted a policy in relation to child care centres.  This raises the question of what regard, if any, the Tribunal should have to the Bulletin in deciding whether or not to approve the proposed development.

2. In the matter of Ienco and City of Melville [2007] WASAT 56 (Ienco), at [25], Member McNab, as he was then, noted that a draft Western Australian Planning Commission Bulletin No 72 issued in June 2005 was not 'a directly applicable regulatory instrument'. It was nonetheless given some weight by the Tribunal because the 'main purpose' of that document was to 'outline a consistent approach to planning for child care centres and to advise of the relevant planning considerations in relation to the location and development of child care centres': at [22].

3. The current Bulletin states that it 'supersedes Planning Bulletin 72 Child Care Centres (June 2005) and the planning guidelines included in it'.  The current Bulletin does, however, have the same two aims as identified in Ienco.  Its third aim is to differentiate between child care related activities operating in existing residential areas and non-residential child care activities.  The Tribunal accepts, therefore, that consistently with the approach previously taken by the Tribunal, there may be a need to have regard to the Bulletin when determining a development proposal concerning a child care centre.  However, where the local government has adopted a local planning policy that addresses the matters raised by the Bulletin that is consistent with the guidelines contained in the Bulletin, there would be no need to refer to the Bulletin at all.  If there is no local planning policy, or some inconsistency between the local planning policy and the Bulletin, then regard would need to be had to the Bulletin in determining the matter.

4. In this case, Mr Slarski stated that a relevant consideration is that the site is 'appreciably less' than 1,000m², when the Bulletin states that 'as a general rule sites in a residential area should be … greater than 1,000sqm': cl 3.4 of the Bulletin.  This statement must be understood in context.  At the commencement of that same clause, it is stated that 'sites selected for child care centres should be of sufficient size and suitable shape to accommodate the development, including all buildings and structures, parking for staff and parents, outdoor play areas and landscaping, as determined by the relevant local planning scheme or local policy and applicable regulations'.

5. As a matter of logic, the size of site required for any particular child care centre must depend to a large degree on how large the buildings and associated structures are and how many children and staff are to be accommodated in the centre.  It may also be affected by the ways in which activities at the centre are to be carried out. 

6. The Tribunal does not accept that the Bulletin imposes any necessary minimum site requirement for child care centres.  Similarly to the respondent's LPP 6.4, the Bulletin contemplates the size of the site needing to be sufficient to accommodate the particular child care centre under consideration and being of a sufficient size so as to minimise the potential for any impact on the amenity of neighbouring residential properties.  It is clear that the Bulletin contemplates that generally a relatively large site, that is, greater than 1,000m², will be required.  We are satisfied that in this case, if we have regard to the general preference for sites of at least 900m² contained in the respondent's LPP 6.4, and to the objectives of that policy, we will also be having regard to the relevant parts of the Bulletin.

Issues 3 to 5:    amenity impacts

1. These issues are addressed together as the Tribunal is satisfied that in this case they boil down to consideration of whether or not the proposed development will have a negative impact on the amenity of the locality and in particular of the adjoining residential properties.  The perceived impact on amenity was the primary argument relied on by the respondent in support of its position that the proposed development should be refused.  It was submitted that the primary concern was the noise that would be produced by the proposed development, in particular when children were allowed to play in the outdoor area to the rear of the proposed building.  The Tribunal accepts that impact on the amenity of neighbouring residential properties is an important aspect that is identified in the relevant policies and which must be taken into account when determining whether to approve a proposal for a child care centre in a residential area.

2. The applicants provided evidence from experts in relation to the impact of the proposed development in terms of noise and traffic.  Those experts were Ms Rebecca Ireland and Ms Herget-Lansdell respectively.  Both experts provided a summary of their qualifications and experience and the respondent did not challenge the expertise of either witness.  The Tribunal accepts that both of these women are appropriately qualified and experienced experts in their respective fields and in a position to give opinion evidence relevant to the determination to be made in these proceedings. 

Noise impact

1. Ms Ireland is an environmental scientist specialising in the field of acoustics.  She conducted two assessments of the expected noise impact of the proposed development and produced reports in relation to those assessments that were before the Tribunal.  The first report is dated 3 December 2014 and is contained at Tab 6 of Exhibit 2 (first report).  The second report is dated 24 August 2015 and is attached to her witness statement which is Exhibit 9 (second report).  The assessment reported in the first report was conducted using file data of the sound of children playing, evaporative air conditioning and a typical car door closing sound.  Ms Ireland did not have a plan of how the outdoor area of the site was proposed to be used when carrying out this assessment. 

2. Ms Ireland informed the Tribunal that the assessment reported in the second report was conducted having regard to the layout of the proposed outdoor area, although the report mistakenly states that she did not have this information.  It also incorporated actual noise monitoring that Ms Ireland had conducted at the site (for ambient noise) and noise monitoring that Ms Ireland carried out at a similar sized child care centre.  That centre catered to three to four year old children and monitoring was done while children played outside.  Ms Ireland reported that there was a maximum of 22 children playing and the play comprised a sand pit, outdoor kitchen, nature plan and garden.

3. Ms Ireland's monitoring of noise at the site found that over the course of the day there were peaks and troughs of noise with a peak of noise in the morning, lunchtime and in the evening.  The highest peak was in the morning at approximately 7.30 am. 

4. In the second report and during her oral evidence, Ms Ireland explained the method of her assessment and the assumptions that she made in carrying out that assessment.  One important assumption was that Ms Ireland included a 1.8 metre fence around the side boundaries of the site and a 2.0 metre fence along the rear boundary of the site. 

5. Ms Ireland concluded, based on the modelling she carried out, that the predicted noise levels from children playing in the proposed outdoor area complies with the regulatory requirements for sound levels during the day period.  In addition, she determined that this noise will be significantly less than the existing ambient noise at the site.  In relation to the predicted noise levels associated with cars parking on site (including car doors closing and vehicles starting and moving around the site) Ms Ireland again concluded that noise levels will comply with the regulatory requirements and were significantly less than the ambient noise.  The same conclusion was reached in relation to the predicted air conditioning noise.

6. The respondent did not call any expert in relation to the noise impact of the proposed development.  It relied upon the intervenors who all gave evidence to the effect that they perceived that they were not currently impacted by any significant noise (despite the obvious background traffic noise appreciated by the Tribunal members at the site view) and that they believed that the proposed development would have a significant and detrimental impact on the use of their respective outdoor areas.

7. The Tribunal finds that Ms Ireland's conclusions as reported in the second report were based on understandable and logical reasoning that was explained to the Tribunal.  She used standard modelling software to predict actual noise at specified reliever points using a combination of real measured noise and file data.  The Tribunal was able to understand Ms Ireland's reasoning for the assumptions used and the variable factors that were applied in the modelling process.  The Tribunal accepts Ms Ireland's opinions in relation to the predicted noise impact of the proposed development.  The Tribunal finds that there is no evidentiary basis to support any perception or belief held by the intervenors that the proposed development will have a detrimental noise impact on the adjoining neighbours.

Traffic impact

1. Ms Herget-Lansdell is a civil engineer who specialises in transport planning and traffic engineering.  She prepared an initial report in support of the applicants' original application for development approval to the respondent.  That report is located behind Tab 5 of Exhibit 2.  Ms Herget­Lansdell also provided a revised assessment, based on a revised plan for car parking arrangements, which was attached to her witness statement: Exhibit 13. 

2. In her initial report Ms Herget-Lansdell used data she had previously collected from assessments of a number of child care centres during the course of her work.  She said that those centres were typically long stay centres opening for much longer hours than the applicants' proposed child care centre would be. 

3. As part of her revised assessment, Ms Herget-Lansdell conducted a demand analysis of parking at two child care centres that were similar to the proposed development and that were located within the respondent's local government area.  One centre catered for 37 children and had 11 car bays.  The other catered for 30 children and had approximately 10 car bays.  Using information gathered from those analyses, Ms Herget­Lansdell concluded that the maximum car parking demand could be expected to be in the order of seven vehicles at any one time during peak periods, including staff parking on the site.  She therefore concluded that the proposed development would not cause any detrimental impact on amenity caused by parking of cars on the verges or on Duffy Road.

4. Mr Veale disagreed with Ms Herget-Lansdell's conclusion in relation to the ability of the proposed carpark to meet demand and opined that the proposed development would cause vehicles to park on the verges and in Duffy Road.  It was accepted by both Mr Veale and Ms Herget-Lansdell that if overflow of parking of this type were to be caused by the proposed development it would have a detrimental impact on the traffic amenity of the neighbouring residents.

5. While the Tribunal accepts that Mr Veale is a person who is qualified to give expert evidence on the issue of traffic amenity, in this case he did not himself conduct any analysis of the car parking demand that would be caused by the proposed development.  Mr Veale made a number of assertions as to his beliefs about that impact but he did not provide any foundation or reasoning in support of those opinions.  For that reason, the Tribunal finds that it cannot give any substantive weight to Mr Veale's expressed opinions in this matter. 

6. The Tribunal does accept that Mr Veale, as a person with relevant expertise was in a position to raise questions about the methodology of the analysis conducted by Ms Herget-Lansdell.  However, during the course of the hearing Ms Herget­Lansdell did not concede that any of the potential issues raised by Mr Veale affected her conclusions and provided reasons to support her views. 

7. The main criticism raised by Mr Veale in relation to the analysis was that counts of cars parked were only conducted every 30 minutes.  He considered that counts should have occurred every 15 minutes.  He asserted that counting every 30 minutes meant that the analysis only provided snapshots of what was actually occurring in relation to car parking demand.  He stated that he would expect that those snapshots would have missed the peak demand times and that he would expect the actual numbers to be higher than revealed by Ms Herget­Lansdell's analysis. 

8. Although the Tribunal accepts that a count every half an hour may potentially miss a peak in demand, it cannot accept that such an analysis would necessarily under count parking demand.  It must be equally likely, in the absence of evidence to the contrary, that there was no time of higher demand in the period between counts.  Ms Herget­Lansdell asserted that the half hour time period was a standard and accepted method of conducting this type of car parking result.  She asserted that such a count produced a reasonably reliable snapshot of what was actually occurring.

9. The Tribunal finds that Ms Herget-Lansdell's analysis of car parking demand provides a reasonable basis for her conclusion that the proposed development is unlikely to cause any detrimental impact resulting from overflow from the car parking area.  Although her analysis may not be an entirely accurate predictive tool, it shows that the average demand for car bays created by the proposed development is likely to be significantly less than the number of bays provided.  Her analysis provided an assessment of demand for car parking bays that is similar to the number of car parking bays required for a child care centre under the respondent's LPP 6.7. 

10. The Tribunal accepts Ms Herget­Lansdell's evidence that predictive assessments based on a survey of the kind she has conducted are of an acceptable standard for the purpose of determining whether a proposed carpark will provide sufficient car bays having regard to the costs involved of more extensive surveys and the limited likelihood of such further studies providing any different result. 

11. The Tribunal is satisfied that the proposed development will not have a negative impact on the traffic amenity of the locality.

Compatibility with setting

1. The respondent submitted that in this case the compatibility of the development with its setting and its relationship to development on adjoining properties raised the issue of the impact of the proposal on streetscape.  The difficulty for the respondent in making this submission is that both of the town planners agreed at the hearing that the proposed development, including the large area of proposed carpark at the front of the site, would not have any detrimental impact on the amenity of the streetscape. 

2. The proposed building is one that has the appearance of a residential dwelling.  Apart from the carpark that will require a significant area of hardstand within the front setback area of the site, the proposed development will not appear substantially different from the neighbouring residential properties.  In relation to the proposed carpark, the streetscape already has properties with large areas of hardstand in the front setback area, as can be seen, for example, in the property directly across the road from the site.

3. Based on the evidence before it, the Tribunal is satisfied that the proposed development would not have any detrimental impact on the streetscape of the locality.  The proposed development is compatible, in its built form, with its setting.

Issue 6:     the decision

1. Leading on from the matters discussed in relation to issue 1 above, the Tribunal now considers the extent to which the aspects of the proposed development that do not meet a requirement or preference of the relevant local planning policies are consistent with the objectives of those policies. 

2. The Tribunal finds that the site location and size being different to what is preferred under LPP 6.4 is not significant in this case.  The relevant objective of LPP 6.4 is to minimise any adverse impact on the amenity of the area.  The proposed child care centre in this case is a small one and there is only limited times that children will be allowed outside.  In addition, the children are not free to 'play' in the ordinary sense, but will be guided through structured, educational focused play.  The expert evidence in relation to the potential impact of the proposed development on amenity specifically focused on this type of child care centre.  As discussed above, the Tribunal accepted that evidence and has found that the proposed development will not have an adverse impact on the amenity of the neighbouring properties. 

3. In relation to parking, the variations of the proposed development from LPP 6.7 are that there is a degree of tandem parking proposed and there is no set down and pick up area provided separately from the car parking area.  As indicated above, the tandem parking contemplated in this proposal is a technical issue and will not have any practical impact on the number of car bays available for users of the child care centre.  The set down and pick up area required in the policy is not something that has any relevance to this type of child care centre.  The Tribunal finds that these variations are consistent with the objectives of LPP 6.7 because, relevantly to the circumstances of this proposal, neither factor could be said to have any detrimental impact on the adequacy of the parking facilities or to cause any major parking problem.

4. The width of the landscaping buffer specified by LPP 6.6 appears to the Tribunal to be arbitrary.  In the absence of any evidence to the contrary, the Tribunal is satisfied that an appropriate condition can ensure that a landscaping buffer of 900 millimetres can be created to improve the visual appeal of the development, screen the outdoor play area visually from the neighbouring properties, provide shade and 'green relief' on the site and promote more environmentally sustainable landscaping.  The Tribunal is satisfied that the proposed development can meet the objectives of LPP 6.6.

5. The respondent submitted that the proposal was inconsistent with the objectives of the Residential zone.  The respondent's view was that the proposal is not compatible with, or complementary to, residential development because of its impact on the amenity of the neighbouring residential properties.  As has been previously stated, the Tribunal is satisfied that the proposed development will not have any unacceptable impact on the amenity of the neighbouring residential properties.

6. Having regard to the answers to matters discussed above, to the Tribunal's finding in relation to amenity impact and the variations to policies, as well as to the aims and provisions of the Scheme and the objectives of the Residential zone, and to the requirements of orderly and proper planning, the Tribunal finds that the correct and preferable decision is that the applicants' proposed development should be allowed subject to conditions.

7. The respondent provided a draft set of conditions on a without prejudice basis for the purposes of the hearing.  The applicants raised some objections in relation to those proposed conditions.  During the course of evidence the relevant experts were asked questions aimed at establishing whether or not the applicants' objections were reasonable.  As a result of that evidence, by the conclusion of the hearing the parties had reached agreement about the proposed conditions and the proposed re-wording of some of those conditions.  The Tribunal is satisfied that the proposed conditions, as agreed between the parties prior to the conclusion of the hearing, are appropriate conditions and are necessary to ensure that the proposed child care centre will operate in accordance with the assumptions made by the experts in making their conclusions about impact on amenity.

Orders

1. The Tribunal orders:

   1.The application is allowed.

   2.The decision of the respondent made on 16 June 2015 to refuse the development application is set aside.

   3.The application for approval to construct premises in accordance with the plans identified as drawings No A100-A102, A110, A201-A202, A301-A 302 dated 28 April 2015 attached to this order (Attachment A) and for the site to be used for the purposes of a child care centre is granted subject to the conditions that will be attached to this order (Attachment B).

   4.Within seven days after the date of this order the applicants are to lodge with the Tribunal a copy of the agreed conditions, being the draft conditions proposed by the respondent on a without prejudice basis for the purposes of hearing, as amended by agreement between the parties at the hearing.  Those conditions are to be attached to this order as Attachment B.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS L EDDY, MEMBER

ATTACHMENT A