MADAME MA'S PROPRIETARY LIMITED and CITY OF PERTH - [2019] WASAT 131

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MADAME MA'S PROPRIETARY LIMITED and CITY OF PERTH [2019] WASAT 131
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   17 AND 18 OCTOBER 2019
DELIVERED          :   11 DECEMBER 2019
FILE NO/S:   DR 89 of 2019
BETWEEN:   MADAME MA'S PROPRIETARY LIMITED
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning - Dog day-care - Unlisted use - West Perth Precinct - Commercial use area - Whether compatible with surrounding residential and office uses - Whether potential noise can be adequately mitigated by conditions - Impact on amenity - Conditions

Legislation:

City of Belmont Town Planning Scheme No. 14
City of Perth Local Planning Scheme No. 2, cl 6(3), cl 11, cl 12, cl 16, cl 16(2), cl 17, cl 34, cl 35, Sch 1, Sch 3, Sch 4
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 67, cl 69(m)
Planning and Development Act 2005 (WA), s 242, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3), s 31(1)

Result:

Decision of respondent set aside and conditional approval granted

Summary of Tribunal's decision:

The proceedings arose in the Tribunal following a refusal on 26 March 2019 by the City of Perth (City) of an application for planning approval made by Madame Ma's Proprietary Limited (applicant) seeking approval for a change of use at 581-583 Murray Street, West Perth (subject site). The proposed change of use would permit a dog day-care centre (an 'Unlisted Use') with an associated shop ('Retail - General' use), including minor works and signage (the proposed development).

The Tribunal found that the issues raised by the City as well as the submissions from nearby residents and office workers as reasons for the Tribunal to refuse approval (in particular, amenity concerns regarding noise and odour) had either already been satisfactorily addressed by the applicant in consultation with the City's officers prior to the hearing or would be sufficiently ameliorated by the imposition of conditions. The Tribunal also found that the proposed use of the subject site is appropriate and compatible with other uses in the commercial use area of the West Perth Precinct.

Therefore, in the exercise of the Tribunal's discretion to make the correct and preferable decision upon review, the Tribunal concluded that it should set aside the refusal and approve the proposed development subject to conditions.

Category: B

Representation:

Counsel:

Applicant	:	Ms M Gorman (Director)
Respondent	:	Mr J Algeri (Planning Advocate)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Canning Mews Pty Ltd v and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Land Alliance and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65
Warr and v Town of Cambridge [2019] WASC 362

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal following a refusal on 26 March 2019 by the City of Perth (City or respondent) of an application for planning approval made by Madame Ma's Proprietary Limited (applicant) seeking approval for a change of use at 581-583 (Lots 6 and 36) Murray Street, West Perth (subject site). If approved, the proposed change of use would permit a change from the existing Scouts hall, (a 'Community and Cultural' use) to a dog day-care centre (an 'Unlisted Use') with an associated shop ('Retail - General' use), including minor works and signage (the proposed development).
Following advertising and the assessment of the proposed development, the City's officers prepared a report for Council recommending conditional approval. At its meeting held on 26 March 2019, Council considered the application and resolved to defer consideration of the proposed development so that information regarding the effectiveness of noise mitigation and inspection of similar land use in a high-density area could be obtained so the Commissioners could get an indication of how noise was managed.
At its meeting held on 30 April 2019, a report was presented to the Council by the City's officers and with the applicant providing additional details of similar, centrally located dog day-care centres within Australia. The report recommended approval. Council considered the application and resolved to refuse the proposed devlopment due to concerns regarding the effective mitigation of noise and the negative impact it would have on the immediate locality.
On 2 May 2019, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act), the applicant lodged an application in the Tribunal for a review of that refusal by the City.
On 17 May 2019, at the first directions hearing of these proceedings, the Tribunal invited the City to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The applicant provided additional information to the City in the form of a Noise Monitoring and Management Plan (the Noise Management Plan). At its meeting held on 23 June 2019, Council reconsidered the application together with the Noise Management Plan and resolved to affirm its decision of 30 April 2019 to refuse the application. Council was not satisfied that the proposed noise mitigation measures would be effective to prevent the proposed development having a negative impact on the amenity of the immediate locality.

Issue to be determined

The principal issue to be determined by the Tribunal in these proceedings is whether it is appropriate in the exercise of the Tribunal's discretion upon review, when making the correct and preferable decision at the time of the review, to approve the proposed development giving consideration to the following two sub-issues:
(a)whether the proposed development and its intended use of the subject site as a dog day-care centre is appropriate by way of its compatibility with other uses in the commercial use area of the West Perth Precinct; and
(b)whether the proposed development is appropriate having regard to the ability of noise emissions to be adequately mitigated.

The subject site and locality

The subject site can be described more particularly as follows:
(a)It has a total area of 1,955m².
(b)It is located in West Perth on the south-eastern corner of the Murray Street and Harvest Terrace intersection.
(c)It contains an existing two storey building, ancillary building and at-grade car parking area.
(d)The main building was constructed in 1952, is of moderate condition and was previously the headquarters of Scouts, Western Australia (Scouts).
(e)Recently, the City granted approval for the use and fitout of the ground floor level fronting Murray Street for a gymnasium with the first floor level remaining vacant since the departure of the Scouts.
(f)The first floor level, which would contain the proposed development, is currently vacant.
(g)The first floor level is 720m² in area and comprises an open plan hall and large meeting rooms separated from each other by floor to wall partitions, a bathroom and kitchenette.
(h)Access to the proposed development would be from the carpark at the rear (southern) side of the building which has vehicle access from Harvest Terrace.
(i)The carpark contains approximately 40 car bays distributed to the west and south of the building.
The subject site is surrounded by a commercial property to the east, a residential complex of nine apartments to the north on Murray Street, 29 apartments to the west at 611 Murray Street on the corner with Harvest Terrace (the Iceworks) and Parliament Court strata complex offices (Parliament Court) which abut the southern end of the carpark of the subject site.
The locality can be described as containing a mix of residential, commercial and office space on the eastern perimeter of West Perth near the Parliament of Western Australia, a Mitchell Freeway overpass and in close proximity to the Perth Central Business District (CBD).
During the hearing the Tribunal had the benefit of a view of the subject site and locality.

The proposed development

At the time of the application to the City on 7 December 2018, the proposed development was as follows:
(a)The proposed business will provide dog day-care services primarily for dogs of city workers during the day, specialising in smaller breeds under 11 kilos.
(b)The proposed hours of operation are Monday to Friday from 6.30 am to 6.30 pm. On weekends the premises will be used based on demand between the hours of 10.00 am and 4.00 pm for dog training classes, dog birthdays, dog related gatherings and other dog events.
(c)The proposed venue will accommodate up to 60 dogs at any one time, however it is anticipated that the average occupancy rate will be well below this maximum.
(d)Dogs will be kept in separate zones according to temperament and will be continuously under observation.
(e)A dog grooming and pampering service will also be offered during business hours targeted at day-care attendees.
(f)Up to six staff members will be on site depending on the numbers of dogs attending with staffing to be in accordance with the Pet Industry Association of Australia's guidelines which recommends a minimum of one staff member for every 12.5 dogs on the premises.
(g)The premises will have a small retail area where boutique dog accessories and dog specific items will be sold, specifically to day-care attendees.
(h)The business will operate a 'dog valet' service in the morning and evenings so that customers will not need to get out of their car to drop off their dog. It is expected that use of this service will be high, as seen with similar dog day-care businesses, who successfully provide this service.
At the time of the application to the City on 7 December 2018, the proposed minor works to the building included as follows:
(a)division of the main hall space into separate themed zones separated by fencing;
(b)fit-out of the lobby and retail space including furniture and display facilities; and
(c)refurbishment, painting and illumination of the exterior of the building and fence including the removal of obsolete air conditioning units and signs and the addition of new signage and graphics.
It will become apparent throughout these reasons there have been some alterations, or concessions made, by the applicant to the proposed development in an effort to address concerns raised by the City's officers, community submissions and the respondent in these proceedings. These include matters such as operating hours, window alterations and acoustic treatments. These alterations, or concessions, do not alter the fundamental nature of the proposed development.

Planning framework

Metropolitan Region Scheme

The subject site is zoned 'Urban' under the Metropolitan Region Scheme.

City of Perth Local Planning Scheme No. 2

The City of Perth Local Planning Scheme No. 2 (CPS2) contains objectives at cl 6(3) of CPS2 relevant to these proceedings as follows:
…
(b)to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, visitor accommodation and attractions, transport and access opportunities;
(c)to protect and enhance the health, safety and general welfare of the local government's inhabitants and the social, physical and cultural environment of the local government;
(d)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which –
(i)promotes development of a sufficient intensity within the city to reflect its capital city status;
(ii)recognises the individual character and needs of localities within the Scheme area;
…
(e)to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities[.]
Clause 11 of CPS2 provides that the Scheme area is divided into precincts and that for each precinct there is a precinct plan.
Clause 12 of CPS2 refers to reserves and Scheme use areas and provides that the classification of land within the Scheme area is shown on the precinct plan in which that land is located.
Clause 16 of CPS2 provides that uses are classified in the Scheme as preferred uses; contemplated uses; prohibited uses; additional uses; non-conforming uses; and unlisted uses. Clause 16(2) of CPS2 provides that the local government may grant development approval for any use except a prohibited use and a change of use which is prohibited by cl 35 of CPS2. Clause 17 of CPS2 explains the use group tables in Sch 3 and notes the meaning of the use symbols 'P' as preferred use, 'C' as contemplated use and 'X' as prohibited use.
The subject site is located within the 'Commercial use area' of the West Perth Precinct (P10 - West Perth) under CPS2. Schedule 1 of CPS2 provides general descriptions of the types of Scheme use areas referred to in the Scheme. Under 'Commercial' it states:
Commercial Scheme use areas cover parts of Precinct P10 West Perth.
It is intended that they continue to develop as general commercial areas accommodating a diverse mix of facilities and services. Preferred use groups include Office, Business Services, Mixed Commercial, Community and Cultural, Entertainment, Recreation and Leisure, Retail (Local), Dining, Industry (Cottage) and Healthcare 1. Industry (service) is also classified as preferred in Hamilton. Most other use groups within the Commercial area are contemplated.
The predominant proposed use of 'dog day-care centre' does not readily fall within any of the land use categories contained within the definitions provided by Sch 4 of CPS2. As such, the proposal is required to be considered as an 'Unlisted Use'.
Clause 34 of CPS2 outlines the process of determination of an application for an Unlisted Use as follows:
(1)The local government cannot grant development approval for a development which involves an unlisted use unless -
(a)the advertising procedure set out in clause 64 of the Deemed Provisions has been followed; and
(b)it is satisfied, by an absolute majority, that the proposed development is consistent with the matters listed in clause 67 of the Deemed Provisions.
In accordance with the use group tables contained within Sch 3 of CPS2, the 'Retail (General)' component of the proposed use is a contemplated 'C' use within the commercial use area of P10 - West Perth.

Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of deemed provisions which are deemed to be included in the local planning scheme text (Deemed Provisions).
The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are, in summary, as follows:
•aims and provisions of the CPS2 (cl 67(a));
•requirements of orderly and proper planning (cl 67(b));
•any local planning policy (cl 67(g));
•the compatibility of the development with its setting (cl 67(m));
•the amenity of the locality including environmental, character and social impacts (cl 67(n));
•the adequacy of access to the proposed development history of the site where the development is to be located (cl 67(s));
•traffic generated and its impact (cl 67(t));
•the impact of the development on the community as a whole (cl 67(x)); and
•any submissions (cl 67(y)).

Precinct Plan No.10 - West Perth

The statement of intent of the City's Precinct Plan No.10 - West Perth (West Perth Precinct Plan) relevantly provides:
The West Perth Precinct will accommodate two primary functions. The Precinct will be developed as one of several residential quarters, accommodating a range of housing types along with support facilities, and also provide a secondary business area adjacent to the city centre. It is envisaged that this Precinct will continue to develop as a living and working environment set in spacious landscaped surrounds, reflecting the original concept for this area of the garden office/residential district. The amenity, character and general environmental quality of the precinct should be maintained and enhanced.
The Precinct will continue to accommodate a high proportion of offices, however, commercial, mixed residential and commercial and residential areas will also be contained in the Precinct[.]
The West Perth Precinct Plan specifically provides policy guidance in relation to the commercial area as follows:
A commercial area providing for a limited range of business related commercial activities will be supported in the area bounded by Hay, George, Havelock and Wellington Streets. High quality medium scale buildings that reflect a strong commercial presence and incorporate residential and visitor accommodation are appropriate in this area of the Precinct.
Appropriate commercial uses are banks, restaurants, lunch bars, showrooms and other commercial uses which serve West Perth in particular. Residential and offices uses will also be permitted, particularly on upper levels, or at the rear of commercial uses. Measures are to be taken to ensure the amenity of any residential portion is protected and maintained and that commercial uses are not likely to inhibit the development of residential uses adjacent to or in the area.
The West Perth Precinct Plan also provides in relation to uses in the commercial area:
Where it is considered that a particular use could have a detrimental impact on the amenity of the surrounding area (mainly adjacent residential uses) it will be subject to the advertising procedure set down in clause 64 of the Deemed Provisions.

Planning Policy Manual - Part 1, Section 3.5 - Non-Residential Uses in or Adjacent to Residential Areas

The City's local planning policy Planning Policy Manual - Part 1, Section 3.5 - Non-Residential Uses in or Adjacent to Residential Areas (Policy 3.5) recognises that certain non-residential uses can co-exist with and integrate into residential areas without adversely affecting residential amenity.
The aim of Policy 3.5 is to ensure that non-residential uses in or adjacent to residential areas are compatible with existing nearby dwellings.
Under the provisions of CPS2 the subject site is zoned commercial. The subject site is also located in an area defined in the West Perth Precinct Plan as a commercial area bounded by Hay, George, Havelock and Wellington streets, West Perth.
The Tribunal finds that a plain and ordinary reading of Policy 3.5 reveals that it is intended to apply to a residential area. The subject site is contained within a commercial area. Therefore, the Tribunal finds Policy 3.5 has no application to the proposed development under consideration in these proceedings. However, this does not mean that amenity will not be considered. What is does mean, is that the Tribunal will not consider amenity from the perspective, or context, of Policy 3.5.

The authorities and previous Tribunal decisions

How policy guides the exercise of discretion was explained in the decision of the Court of Appeal in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 where it was found at [24] that:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications. In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application. Good public administration demands no less an approach.

Also see Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at p527 and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37].
Whilst in a different locality context, similar issues arose for consideration by the Tribunal in Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130 where the Tribunal granted approval of the dog day-care subject to conditions. An earlier determination of a preliminary issue in Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65 determined under the City of Belmont Town Planning Scheme No. 14 that a dog day-care was not a 'Dog kennels' as defined under that Scheme and was a 'Use not listed'.
In Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] (Canning Mews and City of South Perth), it was found, in addition to the views of expert planners, that residents of the locality had a valuable perspective on amenity:
… The qualities and characteristics which constitute and create residential "amenity" are to be determined objectively. However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]

The applicant's submissions

At the conclusion of the hearing, the applicant submitted that the proposed development should be approved, in summary, for the following reasons:
(a)Considerable time, thought and effort was put into finding the best location for the proposed development at the subject site. The business model was then crafted and adapted to fit with the West Perth location. The proposed development is intended to be a local facility for West Perth locals.
(b)The proposed development is a high end dog day-care, akin to a luxury kindergarten for dogs. The dogs will be observed, interacted with and supervised. There will be selective admission which is common dog day-care practice to only accept the proportion of applicants which are suitably calm and socialised. Our clients expect their dogs to be cared for in a safe and nurturing environment and this is what are staff are trained to provide. The various management systems detailed in the application are both reasonable, achievable and common practice in other dog day-care establishments both in Australia and abroad.
(c)The City's planning expert noted in his statement and verbally that he has taken a conservative view. The applicant requests that the Tribunal instead take a pragmatic, fair and reasonable view. The planning experts agreed, subject to the agreed conditions, that there are no acoustic, odour or traffic management issues.
(d)The acoustic experts agreed, subject to the agreed conditions, that the expected noise is well within acceptable levels.
(e)The proposed management plans, such as the Waste Management Plan, Odour Management Plan and Noise Management Plan (which includes and the Trigger Action Response Plan) have been prepared in consultation with, and met with approval by, the City's officers. The experts have agreed that the proposed development will not adversely affect the amenity of the locality if the management plans are implemented to mitigate any impacts. The proposed development is therefore appropriate by way of its compatibility with other uses in the locality.
(f)The final version of the signage plan was considered acceptable by the City. However, should there be any remaining concerns, the applicant requests its consideration be de-coupled from these proceedings, so that it can apply separately to the City to finalise a signage plan.
(g)The parties' positions have evolved over the course of the proceedings and they have agreed on a set of conditions that address all remaining issues.

The City's submissions

The City submitted that the proposed use does not ensure the amenity of nearby residential developments is protected and maintained by virtue of potential noise and odour emissions. As such, the City submitted that the proposed development is incompatible with the locality and its approval would be contrary to orderly and proper planning having regard to the applicable planning framework.
In the City's statement of issues, facts and contentions, it is contended that the proposed development should not be approved, in summary, for the following reasons:
(a)The proposed development is not within the limited range of business-related commercial activities required to serve the locality, as specified by the West Perth Precinct Plan, such as banks, restaurants, lunch bars, showrooms and other commercial uses which serve the particular needs of West Perth.
(b)The proposed development is likely to inhibit the development of residential uses adjacent to, or in the commercial area, of the West Perth Precinct Plan which is further emphasised in Policy 3.5.
(c)Whilst acknowledging that the subject site is not a 'Residential Area', Policy 3.5 should apply insofar as the proposed development will cause undue conflict through the generation of traffic and the emission of noise and/or odour which may be undesirable to nearby established residences.
(d)The subject site has constrained access with just one crossover to Harvest Terrace which is a one-way street. Having a number of vehicles attempting to both enter and exit the subject site may cause congestion and safety issues in a locality that already has a congested road network during peak periods.
(e)The proposed development is a natural emitter of odour and should there be any failure of the air-conditioning system or any other management measures proposed more broadly, there will be an unacceptable impact on the amenity of the locality.
(f)The proposed signage, as to scale, safety, content and design, broadly comply with the relevant objectives and provisions of the City's local planning policy Planning Policy Manual - Part 1, Section 4.6 - Signs (Policy 4.6). However, the proposed colour palette is not in keeping with the existing streetscape and is therefore contrary to the compatibility principles of Policy 4.6. A more neutral colour scheme that is complimentary to the surrounding development would be appropriate for the proposed development.
(g)Significant regard should be given to the number of submissions received regarding the proposed development which object and highlight concerns with possible amenity impacts, and therefore, raising concern with the appropriateness and compatibility of the proposed development in this location.
(h)The nearest residents are located 18 metres to the north of the subject site and, with a maximum capacity of up to 60 dogs, the proposed development will be a natural emitter of noise in close proximity to sensitive land uses in an urban environment.
(i)Despite the management measures proposed by the applicant, any failure of those measures could result in a breach of the assigned levels associated with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) and such a scenario would have an unacceptable impact on the amenity of the locality.
(j)The impact of unacceptable levels of noise will be contrary to the compatibility principles of the West Perth Precinct Plan and Policy 3.5 in terms of the relationship between residential and non-residential uses.
At the conclusion of the hearing, the City conceded a number of matters, however, submitted that the proposed development should still not be approved due to concerns as to the potential impact on amenity of nearby residents and workers of noise and odour that may be caused by the proposed development. In closing, the City submitted, in summary, as follows:
(a)The applicant should be commended for its willingness to undertake changes to the proposed development and the various proposed management regimes. However, the problem with the proposed development is that it may not satisfy the principles of orderly and proper planning as to its suitability at the subject site.
(b)The very nature of the proposed development of a dog day-care is not of itself fatal to approval. However, the scale of the proposal, context of the subject site and the fact that it requires retro-fitting should be fatal to approval.
(c)The remaining concerns as to noise in the carpark highlights the incompatibility of the proposed development in that locality. Whilst the acoustic experts clearly agree that the proposed development would not raise any compliance issues with the Noise Regulations, this does not mean that the Tribunal can then be satisfied that the amenity impacts as to noise are addressed. The amenity impact of noise remains a matter for the Tribunal to consider in light of the expert planning evidence: see Land Alliance and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39].
(d)Whilst each of the expert planners may place a different emphasis on amenity considerations, both expert planners agreed that amenity needs to be addressed. The City acknowledged that consideration of amenity will be different in different zones, areas or precincts under CPS2.
(e)In light of the very recent decision of his Honour Justice Allanson in Warr v Town of Cambridge [2019] WASC 362 at [45], the City submitted it would be foolhardy to refuse to approve the proposed development on the basis it did not easily fit into the preferred, or intended, use list for the commercial use area of the West Perth Precinct in Sch 1 of CPS2.
(f)The proposed development may cause some additional congestion to Harvest Terrace which is part of an already congested road network at peak times.
(g)Significant regard should be given to the submissions provided to the City following advertising and the further submission provided to the Tribunal under s 242 of the PD Act, in particular concerning the impact of amenity: Canning Mews and City of South Perth at [48].
(h)It is accepted that odour concerns can be met by the proposed Odour Management Plan, however there remains a concern regarding the risk of failure of the management regime, and if this occurs, there will be an unacceptable impact on amenity.
(i)Whilst the issue of signage remains unresolved, it is accepted that the proposed condition regarding signage will address concerns regarding colour palette.
(j)It is accepted that the proposed development is not a kennel, however consideration should be given to the requirement of a minimum 500 metre buffer for noise and odour from residential development for kennels in the Environmental Protection Authority's 2005 Guidance Statement for the assessment of environmental factors (EPA Guidance Statement). The buffer requirement in the EPA Guidance Statement highlights the problem of noise and odour in relation to the keeping of dogs. If the proposed management regimes to address odour and noise fail, the amenity impact on the nearby residents and workers associated with odour and noise will be apparent and immediate.

Submissions from owners or occupiers in the locality

In accordance with cl 34 of CPS2 and cl 64 of the Deemed Provisions, during the City's consideration of the proposed development, the proposed development was advertised to the owners of the adjacent properties for a period of 14 days, closing on 25 January 2019. These included the owners of the properties directly adjacent at 579 Murray Street and 1070, 1072 and 1076 Hay Street, as well as those in the near vicinity at 580-586, 600-608 and 611 Murray Street, 1 Coolgardie Street and 1100 Hay Street, Perth.
A total of 15 submissions were received during the advertising period, with 13 raising objections and two providing conditional support in relation to the proposal. The main issues raised during the advertising period were in respect to: noise; odour; traffic; external appearance/signage; waste; appropriateness of tenancy location; and impact on property values.
During the course of the proceedings in the Tribunal, an application was made under s 242 of the PD Act by Ms Alice Brown and Mr Giovanni Monaco to make a submission to the Tribunal. On 27 September 2019, the Tribunal allowed the application and determined that the submissions provided by Ms Brown and Mr Monaco dated 20 September 2019 would constitute the submission (the Brown and Monaco submission).
Ms Brown is the chairperson and resident of the Iceworks strata company and Mr Monaco is the chairman of the Parliament Court strata company.
The Brown and Monaco submission, in summary, submitted their strong objection to the proposed development for the following reasons:
(a)The residents and owners remain deeply concerned about the proposed development.
(b)The proposed development has serious noise and amenity implications.
(c)CPS2 does not have a definition of 'kennel' and it would be fair to assume that the City did not think such a use would be needed or contemplated in the CBD. The proposed development fits the definition of 'kennel' in the City of Gosnells Town Planning Scheme where such a use is prohibited in the mixed-use and commercial zones. Kennels are typically located in rural or industrial areas due to the noise and odour impacts which is highlighted by the examples provided by the applicant. The EPA Guidance Statement sets a minimum of 500 metre buffer for noise and odour from residential development for kennels.
(d)The proposed development will seriously impact the quiet enjoyment that local residents expect.
(e)The tenants at Parliament Court will suffer reduced amenity from noise of additional cars and dogs circulating within the carpark during office hours. The tenants at Parliament Court will also suffer from reduced amenity arising from odours emanating from bins full of dog excrement, particularly in summer.
(f)The proposed development will exacerbate local traffic congestion.
(g)The proposed development is out of character for West Perth as it presently exists and also as West Perth is envisaged for the future.
The Tribunal does not accept the submission that the proposed development should be assessed as if it were a dog kennel. This is particularly so in circumstances where CPS2 has no definition of dog kennel and where it is common ground that the proposed development should be assessed as an Unlisted Use under CPS2: also see by analogy Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65.

The evidence

The applicant provided expert town planning evidence from Mr Murray Casselton and expert acoustic evidence from Ms Rebecca Ireland. The City provided expert town planning evidence from Mr Simon O'Hara and expert acoustic evidence from Mr Terry George.
The applicant also provided factual evidence from Ms Marian Gorman who is a director of the applicant.

Acoustic expert evidence

The acoustic experts, Ms Ireland and Mr George, conferred and prepared a joint statement dated 27 September 2019 that agreed as follows:
2AREAS OF AGREEMENT
2.1The prescribed standards are those specified in the Environmental Protection (Noise) Regulations 1997.
2.2The assessment undertaken by Rebecca is reasonably conservative in terms of assuming 20 dogs barking inside simultaneously and 5 dogs barking outside simultaneously.
2.3The building will require upgrading including:
2.3.1Windows to Reception and Play Areas 1, 2 and 4 are to be upgraded. The upgrade is to include closing and sealing the existing windows and installing minimum 6mm thick fixed glass, spaced 50mm from the existing windows;
2.3.2Acoustic absorption to those ceilings with standard plasterboard ceiling tiles is to be added by either installing new ceiling tiles (high NRC/CAC) or fixing absorptive material to the underside of the existing ceiling tiles. Missing or damaged ceiling tiles to be replaced. This is to apply to all play areas and the reception area;
2.3.3With Play Area 3 being used for barking dogs, this is to be acoustically isolated (i.e. no fixed openings) from the reception area and adjoining Play Area 2. Any openings shall be changed to 6mm thick glass and solid core doors with acoustic seals;
2.3.4Entry to the reception area shall be via the single hinged door rather than the double hinged doors;
2.3.5All external doors to reception and play areas shall be fitted with perimeter acoustic seals;
2.3.6The single hinged entry door to the reception, that will be used by customers, is to be fitted with an automatic door closer to minimise time the door is open;
2.3.7Any mechanical services ductwork is not to downgrade the performance of the building fabric.
2.4The proposal will need to be carefully managed including:
2.4.1Dogs that continually bark will be relocated to Play Area 3;
2.4.2Car park signage to be installed ensuring clients are aware of the residential surroundings with dogs kept under control at all times and on a leash;
2.4.3Users are to be advised to keep car windows closed whilst in the car park and not to leave the car if their dog is agitated/barking;
2.4.4Users are to arrive and depart the premises promptly, not allowing dogs to socialise in the car park;
2.4.5Entry to the reception area shall be via the single hinged door rather than the double hinged doors;
2.4.6The 3 eastern most car bays shall not be used by customers that are exiting the vehicle with their dogs due to the possible dog bark in relative close proximity to the adjoining commercial property.
2.5Compliance with the Noise Regulations is expected to be achieved during the daytime only (Mondays to Saturdays, 7.00am to 7.00pm) but not outside of these times.
2.6Further work required are:
2.6.1Once a detailed mechanical design is available, Eco Acoustics are to review and approve;
2.6.2Eco Acoustics are required to undertake monitoring within 6 months of the facility being open. The results of the monitoring shall be provided to the City of Perth. Where exceedances are determined, procedures/controls shall be put in place to ensure compliance is achieved;
2.6.3Assessment of construction between dog day care and lower level gymnasium to ensure compliance.
Ms Ireland and Mr George had minimal disagreement in their opinions as borne out in the joint statement and their oral concurrent evidence. In their joint statement they disagreed on the issue of amenity at para 3.4 as follows:
3.4Amenity
3.4.1Rebecca believes that the levels from dog barking will not affect the amenity of the surrounding area.
3.4.2Terry believes that dog barking inside is unlikely to affect the amenity. However, should dog barking occur outside, taking into account the fluctuating level of background noise and the spectral content of dog barking, it may be audible and therefore may affect the amenity.
Mr George prepared a graph (Exhibit 16) which modelled the typical background 'ambient' noise levels that existed in the carpark at the subject site between 10.53 am and 11.07 am and how that background noise sits in comparison to indoor and outdoor barking of dogs (if occurring). The graph modelled the background noise levels fluctuating between the measurement of 52 decibels (dB) and 75 dB with an average of 55 dB. Whilst it was noted that 77 dB is compliant with the Noise Regulations, both experts were aware and agreed assessing amenity impacts was different to compliance with the Noise Regulations.
The indoor barking noise was 49 dB well below the background noise and not expected to be heard by those near the subject site. The outdoor barking noise (if occurring) was 63 dB which sat above the background level perhaps half of the time and perhaps below it the other half of the time. However, there are two reasons why the noise of an intermittent dog bark being heard by those nearby the subject site is less than that modelled on the graph. Firstly, both experts agreed that it would be less than half the time for the dog bark to be heard as the bark needed to coincide with the fluctuating background noise level dropping below 63 dB. Secondly, both experts also agreed that the background noise levels would be higher in the morning and afternoon/evening peak commuter time (7.00 am to 9.00 am and 4.00 pm to 6.30 pm) when the dogs are to be dropped off and collected from the proposed development. Therefore, the amount of times that an intermittent dog bark could be heard above the background noise level by those near the subject site would be expected to be further reduced than that modelled on the graph provided by Mr George.

Planning expert evidence

In his expert witness statement dated 17 September 2019, Mr Casselton concluded his planning opinion at paras 9.1 to 9.6 as follows:
9.1In my opinion the proposed use is consistent with that envisaged for the Commercial use area within the West Perth Precinct (P10) which in my opinion displays the characteristics typical of a mixed use area. I do not accept the Respondent's claim that the non-residential use will cause undue conflicts which may be undesirable on established residences that live nearby to the Subject Land. In my opinion it is clear based on a proper interpretation of the Respondent's Local Planning Framework that a wide range of commercial uses are preferred on the Subject Land including but not limited to places of worship, function centres, nightclubs, taverns, car wash facilities, fast food outlets, service stations, vehicle sales or hire outlets and veterinary centres with boarding facilities.
9.2In my opinion the proposed uses are more aligned with the preferred uses for the Commercial scheme use area in the West Perth Precinct (P10) than residential uses which are only contemplated. Furthermore, I consider that residential uses in this area should expect a different level of amenity to that available in a residential area as per the policy requirements set out in LPP3.6. The level of residential amenity in the locality is already in part defined by significant ambient noise levels associated with the busy roads in the area and the nearby Kwinana Freeway.
9.3The proposed dog day-care centre will in my view provide a local service that has the potential to enhance the well-being of and lifestyle options available to local residents. It is ideally situated on a site that already has compromised amenity due to being located close to a busy road intersection and represents an appropriate adaptative re-use of existing on-site development. In my opinion the proposed uses are also more likely to encourage residential uses to develop in the area because people will have the option to reside in apartments with the comfort of knowing that local pet care options are available to them if required.
9.4In my view considerations relating to the protection of the amenity of nearby residents in respect to noise and odour have been thoroughly addressed and demonstrated as being acceptable by the Applicant through the provision of a noise assessment, Noise Monitoring and Management Plan, TARP and Odour Management Plan. Suitable conditions should be imposed on any approval to ensure ongoing adherence to plan requirements.
9.5I do not consider traffic generation and parking provision to be an issue for the Subject Land and proposed development as it is configured in a manner consistent with the requirements of the Respondent's Local Planning Framework.
9.6Whilst I can appreciate the negative sentiments of some nearby landowners and residents in relation to the proposed development, particularly non-dog owners, in my view the Applicant has gone to extraordinary lengths to respond to all potential amenity concerns in an appropriately technical manner. Having regard to the existing levels of amenity in the locality I believe that the proposed development is consistent with the requirements or orderly and proper planning and will have a negligible impact on the existing amenity of the area whilst providing a useful service to dog owners in West Perth and beyond.
In his expert witness statement dated 13 September 2019, Mr O'Hara concluded his planning opinion at paras 49 to 52 as follows:
49.The proposed dog day care is not, in my opinion, a land use envisaged for Precinct 10, nor is it consistent with the listed uses.
50.The proposed use has a number of issues, mainly noise and odour, that will require careful and consistent management to ensure they do not cause a nuisance impact to surrounding residents and workers.
51.Retrofitting an old building to achieve the standards necessary to manage the off-site acoustic impacts is difficult. There appears to be omissions in the adequacy of the proposal which I am concerned are matters that cannot simply be deferred to and resolved via conditions of approval.
52.Having the dogs dropped off and collected in an outside area where no noise amelioration is practically achievable is particularly problematic. This would be better managed if the drop off and collection area contained within a closed area would be preferable.
Mr Casselton and Mr O'Hara both attended the hearing to listen to the acoustic experts provide their evidence before providing their own concurrent expert planning evidence. The concurrent oral evidence of both Mr O'Hara and Mr Casselton is summarised as follows:
(a)They both agreed that the West Perth Precinct Plan is the specific policy document to consider. Mr O'Hara stated that he deferred to the West Perth Precinct Plan. However, Mr Casselton stated that the West Perth Precinct Plan cannot in any way limit the provisions of CPS2 as the planning framework provides that CPS2 has primacy over the West Perth Precinct Plan.
(b)They both agreed that the amenity of those in the immediate locality was relevant to consider. Mr Casselton was of the view that Policy 3.5 did not apply as the subject site was not in a residential area and that consideration of amenity should not be done in that context. Mr O'Hara agreed that it was a mixed use area and Policy 3.5 did not strictly apply, however he took guidance from Policy 3.5. Both agreed that residential and commercial needed to co-exist in the locality.
(c)Apart from some minor matters raised by Mr O'Hara, both agreed that there were no traffic issues affecting whether the proposed development should be approved.
(d)Both agreed that the issue of odour could be addressed by compliance with the proposed Odour Management Plan.
(e)Both agreed that the issue of signage and colour palette could be addressed through a condition on approval and the City's usual process.
(f)Both agreed that due regard needed to be given to the concerns raised by the nearby residents and commercial tenants. Mr Casselton was of the view that due regard had been already given to those concerns with the proposed conditions and managements plans.
(g)Mr Casselton stated that the buffer required in the EPA Guidance Statement applied to kennels where no management measures were put in place and where there was outdoor space utilised by the dogs. Mr Casselton was of the view that the issues that the EPA Guidance Statement was addressing did not arise in relation to the proposed development. Mr O'Hara stated that there were some similarities between a kennel and the proposed development. Mr O'Hara was of the view that the potential impacts needed to be managed and if there was a failure of management that there would be an impact on amenity of those nearby.
(h)Mr O'Hara stated that he was surprised by the scale of the proposed development, in that it would care for up to 60 dogs. Mr O'Hara also clarified his view as to the suitability of the proposed development in the West Perth Precinct in that he was not of the view it was wholly unsuitable in the precinct. Mr O'Hara is of the view that the proposed development needs to be given special consideration in the context of the subject site, the retro-fitting required and the way the amenity impacts would have to be actively managed. Mr O'Hara was of the view that there are too many 'red flags' concerning the proposed development which influences his opinion that the proposed development is not suitable at the subject site and not compatible with nearby uses. Mr Casselton took the contrary view that the subject site is perhaps the best location in the West Perth Precinct for the proposed development making particular mention of the benefit of the carpark buffer to surrounding uses.
(i)In cross-examination by the applicant, it was noted that a preferred use in the commercial use area was 'entertainment' which in CPS2 use group categories included a tavern. It was asked of both planners whether they agreed that, by analogy, a tavern at the subject site would also present somewhat similar challenges concerning managing the impact on amenity of those nearby. Mr Cassleton agreed with the proposition of the analogy and that what may be seen as a problematic use can be managed, such as in this instance a condition that the southern carpark spaces (use of which may impact on the Parliament Court offices) would not be used for drop-off and pick-up.

Consideration: whether a dog day-care centre is compatible with other uses in the commercial use area

Clause 67(m) of the Deemed Provisions provides that the City (and in this instance the Tribunal) must have due regard to the compatibility of the proposed development with its setting including the relationship it would have with adjoining land and the locality.
Clause 11 of CPS2 established that the Scheme area is divided into precincts as set out in the precinct table and that for each precinct there is a precinct plan. However, apart from cl 12 of CPS2 which provides that the precinct plans classify the land to particular Scheme use areas, CPS2 does not specifically incorporate the provisions of any precinct plan into the Scheme. Therefore, the Tribunal considers that the West Perth Precinct Plan is a policy to guide the exercise of discretion provided by CPS2. CPS2 as a legislative instrument, has primacy over the West Perth Precinct Plan.
Clause 67 of the Deemed Provisions provides that the Tribunal must have due regard to the West Perth Precinct Plan as a local planning policy. However, the Tribunal is not bound by the West Perth Precinct Plan. Therefore, any such mandatory type language in the West Perth Precinct Plan such as that found at page 5 that '[a]ny development proposal will only be approved where it complies with the Precinct Plan and the relevant planning policies' (emphasis added), whilst given due regard will be read down from that mandatory language to being a guide to the exercise of discretion as to whether to approve the proposed development.
The West Perth Precinct Plan does not contain any specific criteria or requirements in relation to development of pet facilities or grooming salons.
As explained above, the subject site is located within the commercial use area of the West Perth Precinct under CPS2. Schedule 1 of CPS2 under 'Commercial' lists a number of preferred use groups as including uses such as office, dining, mixed commercial and others. The proposed development is not expressly listed, however, the Tribunal notes that it does not need to be as the list does not profess to be an exhaustive list of uses that can be approved. An Unlisted Use is capable of approval at the subject site. The Tribunal also notes that the included list is prefaced by '[i]t is intended that they continue to develop as general commercial areas accommodating a diverse mix of facilities and services'. The Tribunal finds that this expressed intention for the commercial use area does contemplate and include a use such as the proposed development.
The proposed development fits within the broad definition of 'Commercial' in CPS2 and therefore, is a proposed commercial use. However, the Tribunal must still have due regard to the compatibility of the proposed development with its setting including the relationship it would have with adjoining land and the locality.
The West Perth Precinct Plan states that the amenity, character and general environmental quality of the precinct should be maintained and enhanced. The West Perth Precinct Plan notes that it will continue to accommodate a high proportion of offices, however, commercial, mixed residential and commercial and residential areas will also be present in the precinct.
The West Perth Precinct Plan specifically provides policy guidance in relation to the commercial use area, however this policy guidance appears to seek to limit the range of commercial activities that might be allowed under the provisions of CPS2. This policy guidance from the West Perth Precinct Plan needs to be given due regard by the Tribunal when considering the proposed development at the subject site.
The Tribunal finds that it prefers the opinion of Mr Casselton, as this accords with the Tribunal's interpretation of CPS2 with guidance provided by the West Perth Precinct Plan, that a wide range of commercial uses are able to be approved at the subject site. The Tribunal finds, if amenity issues can be appropriately mitigated by the imposition of conditions, that this wide range of commercial uses includes the proposed development.
The Tribunal also finds, in accepting the opinion of Mr Casselton and not finding itself as pessimistic as Mr O'Hara when he stated there are too many 'red flags', that the proposed development is a compatible use with its setting including the relationship it would have with adjoining land and the locality.
Therefore, the critical issue to be determined by the Tribunal is the potential impact on amenity for those nearby, particularly on the nearby residents and office workers, and how this impact may, or may not, be adequately mitigated.
The Tribunal relies on the evidence of both Mr O'Hara and Mr Casselton, as well as the view taken by the City's officers in recommending approval, in relation to ameliorating the potential amenity impacts by way of management plans and conditions. To the extent that the opinions of Mr O'Hara and Mr Casselton have some differences in this regard, principally Mr O'Hara's pessimism and Mr Casselton's optimism, the Tribunal finds that it prefers the opinion of Mr Casselton and shares his optimism as to the workability of the management plans and conditions in addressing potential amenity impacts. The Tribunal provides further reasoning, particular to the issue of noise, in addressing sub-issue two in what follows.

Consideration: whether noise can be adequately mitigated

The Tribunal understands from the evidence and the submissions from the parties that all areas of agreement between Ms Ireland and Mr George have either been addressed in management plans or are now incorporated into the City's without prejudice proposed conditions (which are accepted by the applicant). There was some discussion in the concurrent evidence of the acoustic experts as to the specific acoustic upgrades required where there was some minimal difference of opinion as well as clarification of para 2.3.1 of the joint statement. The applicant elected to concede the point and advised that it would accept the City's proposed without prejudice conditions which include specific acoustic upgrading to the subject site. Therefore, the Tribunal considers it does not need to make any specific findings in this regard.
Based on the agreed reasoning above in relation to the graph prepared by Mr George, Ms Ireland opined that for the majority of the time any noise from intermittent dog barking in the carpark during the morning drop-off and afternoon/evening pick-up would be within or below the ambient noise level.
The Tribunal was impressed by both Ms Ireland and Mr George as to their expertise and approach to providing independent expert evidence to assist the Tribunal in reaching the correct and preferable decision upon review. However, to the extent that the opinions of Ms Ireland and Mr George differ, the Tribunal finds that it prefers the evidence of Ms Ireland. It was apparent to the Tribunal that, whilst Mr George was eminently qualified and experienced to express opinions on the issue of noise emanating from the proposed development, that the specific experience of Ms Ireland in relation to assessing noise impacts in relation to dog day-care facilities, before and after approval was given to operate, is considerably more extensive. Therefore, Ms Ireland's opinion, to the minimal extent that it actually differs from Mr George, is preferred by the Tribunal.

Conditions

Should the Tribunal take the view that the proposed development could be approved, the City proposed a number of without prejudice conditions that the City says should be imposed on the proposed development. During the hearing, in response to the evolving expert evidence and submissions from both parties, the City's proposed conditions went through a number of iterations. The City's final form of proposed without prejudice conditions were accepted by the applicant.
The Tribunal finds, apart from the Tribunal's addition of condition 8.4 which is explained below, that the City's final proposed conditions accord with the Tribunal's findings regarding the two sub-issues as well as reasonably and adequately ameliorate any remaining amenity issues relating to the use of the carpark.
Condition 8 requires clients to be provided with a customer code of conduct which must firstly be submitted to and approved by the City. The code of conduct will detail the general management of dogs within the carpark and is to include specific mention of the dog valet service, that car windows are to be kept closed when a dog is barking and for clients to arrive and depart promptly not allowing dogs to socialise in the carpark. The Tribunal has taken the view for the sake of completeness to the specific requirements to be included in the code of conduct that it should also include a copy of the designated car parking and vehicle circulation plan as approved by the City under condition 5.

Other matters and conclusion

Section 27 of the SAT Act provides that the Tribunal is to consider the matter afresh, is not confined to matters before the original decisionmaker, is not limited by the reasons provided by the original decision-maker or the grounds in the application and is to produce the correct and preferable decision at the time of the review.
The City, as well as the Brown and Monaco submission, raised the issue of traffic, in that it is suggested that the subject site has constrained access with just one crossover to the one-way street of Harvest Terrace and that the proposed development may cause further congestion and safety issues. However, the City did not produce any specific expert evidence, such as a traffic engineer, regarding this issue. Both Mr O'Hara and Mr Casselton agreed that traffic was not an issue preventing approval. On the evidence presented, the Tribunal agrees.
The Tribunal finds in accordance with these reasons that, firstly, the issues raised by the City as well as by the Brown and Monaco submission as reasons for the Tribunal to refuse approval, in particular the amenity concerns of noise and odour, have either already been satisfactorily addressed by the applicant in consultation with the City's officers prior to the hearing or will be sufficiently ameliorated by the imposition of the conditions. Secondly, the Tribunal also finds that the proposed use of the subject site is appropriate and compatible with other uses in the commercial use area of the West Perth Precinct.
Therefore, in the exercise of the Tribunal's discretion to make the correct and preferable decision upon review, the Tribunals finds and concludes that it should set aside the refusal and approve the proposed development subject to conditions.

Orders

In the exercise of the Tribunal's review jurisdiction, pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal may affirm, vary or set aside the decision that is being reviewed. If the Tribunal sets aside the decision being reviewed it may substitute its own decision or send the matter back for reconsideration. The Tribunal may also, in any case, make any order the Tribunal considers appropriate.
In accordance with these reasons, the Tribunal determines that the appropriate orders to be made under s 29(3) of the State Administrative Tribunal Act 2004 (WA) are as follows:
1.Upon review, the decision of the respondent on 26 March 2019 (as affirmed by the respondent on 30 April 2019) to refuse the application is set aside.
2.The application for planning approval, as detailed in the Form 1 dated 7 December 2018 and which includes the Odour Management Plan dated February 2019, the Waste Management Plan dated 6 March 2019 as well as the Noise Monitoring and Management Plan dated 7 June 2019, is approved subject to the conditions attached and marked 'Annexure A'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS D QUINLAN, MEMBER

11 DECEMBER 2019

Annexure A

1.All requirements as outlined in the Noise Monitoring and Management Plan dated 7 June 2019 being implemented by the operator on an ongoing basis to the satisfaction of the City, together with the following requirements:
1.1.Entry to the reception area shall be via either the single hinged door, or only one of the double hinged doors. One of the double doors must be fixed close during business hours;
1.2.Dogs that continually bark are to be relocated to Play Area 3;
1.3.A noise evaluation being undertaken by a qualified acoustic consultant for a minimum of one (1) full operating day with a minimum of 30 dogs (or reasonably representative maximum dog numbers within the first 3 months of operation) being present on-site and the results being submitted to the City within six months of the commencement of operation of the dog day care; and
1.4.The results of any records kept in accordance with Part 3 of the noise evaluation must upon request be made available and provided to the City Officers at any time.

2.Final details of the external colours of the building, including a revised colour palette of muted tones that are more consistent with surrounding development, being submitted to and approved by the City prior to changing any signage or painting the exterior.
3.The hours of operation of the tenancy being limited to 7.00 am to 6:30 pm Monday to Friday and 10.00 am to 4.00 pm Saturday with no animals being kept on the premises overnight.
4.The dog behavioural management and noise mitigation measures, as outlined in the application and Section 6 - Noise Management of the Environmental Noise Assessment prepared by Eco Acoustics dated 13 September 2019 (Ref: 19010691-01c), being implemented in full prior to occupation of the premises and on an ongoing basis to the satisfaction of the City. In addition, the following management measures must be adhered to at all times:
4.1.Windows to Reception and Play Areas 1, 2 and 4 are to be upgraded. The upgrade is to include closing and sealing the existing windows and installing minimum 6mm thick fixed glass, spaced 50mm from the existing windows;
4.2.Acoustic absorption to those ceilings with standard plasterboard ceiling tiles is to be added by either installing new ceiling tiles (high NRC/CAC) or fixing absorptive material to the underside of the existing ceiling tiles. Missing or damaged ceiling tiles to be replaced. This is to apply to all play areas and the reception area;
4.3.With Play Area 3 being used for barking dogs, this is to be acoustically isolated (i.e. no fixed openings) from the reception area and adjoining Play Area 2. Any openings shall be changed to 6mm thick glass and solid core doors with acoustic seals;
4.4.All external doors to reception and play areas shall be fitted with perimeter acoustic seals;
4.5.The single hinged entry door to the reception, that will be used by customers, is to be fitted with an automatic door closer to minimise time the door is open;
4.6.Any mechanical services ductwork is not to downgrade the performance of the building fabric; and
4.7.Car park signage to be installed ensuring clients are aware of the residential surroundings with dogs kept under control at all times and on a leash.

5.A designated car parking and vehicle circulation plan be submitted for approval by the City prior to commencement of operations. Such a plan should designate parking for the proposed development be restricted to the southern side of the building but not within 8 metres of the southern or eastern boundaries for any customers that are exiting the vehicle with their dogs due to the possibility of dogs barking in close proximity to the adjoining commercial property. Furthermore, those bays abutting Harvest Terrace to the west should similarly not be used to avoid any disturbance to residents nearby.
6.A maximum of 60 dogs being permitted on site at any one time with no dogs being permitted to be kept or cared for external to the building.
7.Drop-off and pick-up of dogs by customers arriving by car, inclusive of the valet service, only being allowed from cars stopped or parked within the site and not from public streets.
8.Clients to be provided with a customer code of conduct which must firstly be submitted to and approved by the City. The code of conduct will detail the general management of dogs within the car park including:
8.1.The 'dog valet' drop off and collection service which they are strongly encouraged to utilise;
8.2.Users are to be advised to keep car windows closed whilst in the car park and not to leave the car if their dog(s) is agitated/barking;
8.3.Users are to arrive and depart the premises promptly, not allowing dogs to socialise in the car park; and
8.4.Include a copy of the designated car parking and vehicle circulation plan as approved by the City under condition 5.

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MADAME MA'S PROPRIETARY LIMITED and CITY OF PERTH [2019] WASAT 131 (S)
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   7 MAY 2020
FILE NO/S:   DR 89 of 2019
BETWEEN:   MADAME MA'S PROPRIETARY LIMITED
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning - Costs application - Exercise of discretion - Whether decisionmaker genuinely attempted to make a decision on its merits - Whether decisionmaker behaved unreasonably in its conduct of the proceedings - Turns on own facts

Legislation:

City of Perth Local Planning Scheme No. 2, cl 34
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67
Planning and Development Act 2005 (WA),
State Administrative Tribunal Act 2004 (WA), s 31(1), s 39(1)(f), s 60(2), s 87
State Administrative Tribunal Rules 2004 (WA), r 63

Result:

Applicant's application for costs dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Humphreys and City of Stirling [2011] WASAT 105
Madame Ma's Proprietary Limited and City of Perth [2019] WASAT 131
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Ransberg and City of Bayswater [2016] WASAT 43 (S)
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207
Tran and Town of Vincent [2009] WASAT 123 (S); (2009) 65 SR (WA) 260
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In December 2018, Madame Ma's Proprietary Limited (applicant) made an application to the City of Perth (City or Council) for planning approval seeking approval for a change of use at No 581-583 Murray Street, West Perth (subject site) to a dog day-care centre with an associated shop as well as minor works and signage (proposed development).
Following advertising and the assessment of the proposed development, the City's officers prepared a report for Council recommending conditional approval. At its meeting held on 26 March 2019, Council considered the application and resolved to defer consideration of the proposed development so that information regarding the effectiveness of noise mitigation and inspection of similar land use in a high density area could be obtained so the Commissioners could get an indication of how noise was managed.
At its meeting held on 30 April 2019, a report was presented to the Council by a City planning officer which included the applicant's further information of similar, centrally located dog day-care centres within Australia. The officer's report again recommended approval. Council considered the application and resolved to refuse the proposed development due to concerns regarding the effective mitigation of noise and the negative impact it would have on the immediate locality.
On 2 May 2019, the applicant lodged an application in the Tribunal for a review of that refusal by the City.
On 17 May 2019, at the first directions hearing of these proceedings, the Tribunal invited the City to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The applicant provided additional information to the City in the form of a Noise Monitoring and Management Plan (the Noise Management Plan). At its meeting held on 23 June 2019, Council reconsidered the application together with the Noise Management Plan and resolved to affirm its decision of 30 April 2019 to refuse the application. Council was not satisfied that the proposed noise mitigation measures would be effective to prevent the proposed development having a negative impact on the amenity of the immediate locality.
In Madame Ma's Proprietary Limited and City of Perth [2019] WASAT 131 (Madame Ma's and City of Perth), the Tribunal found that the issues raised by the City as well as the concerns raised by nearby residents and office workers as reasons for the Tribunal to refuse approval (in particular, amenity concerns regarding noise and odour) had either already been satisfactorily addressed by the applicant in consultation with the City's planning officers prior to the final hearing in the Tribunal or would be sufficiently ameliorated by the imposition of conditions. The Tribunal also found that the proposed development and use of the subject site was appropriate and compatible with other uses in the commercial use area of the West Perth Precinct. Therefore, in the exercise of the Tribunal's discretion to make the correct and preferable decision at the time of the review, the Tribunal concluded that it should set aside the refusal and approve the proposed development subject to conditions.
Whilst nothing ultimately turns on these typographical errors, the Tribunal notes in Madame Ma's and City of Perth at [1] and in the final orders at [79] that there are typographical errors regarding the dates of the original refusal and reconsideration decisions by the City. The dates detailed above (of 30 April 2019 for the original refusal and 23 June 2019 for the reconsideration) is the correct timeline.

Application for costs

Following the applicant's success upon review of the City's refusal to approve the proposed development, the applicant has made an application for costs. This application was made by the applicant on 30 December 2019.
On 23 March 2020 the applicant enquired as to the progress of its costs application. It unfortunately transpired, that whilst the application was lodged with the Tribunal on 30 December 2019, the applicant did not provide it to the City, and due to an internal Tribunal administrative error, the application was not brought to the Presiding Member's attention until 8 April 2020.
On 15 April 2020, the Tribunal issued directions regarding the costs application that the City would have until 1 May 2020 to provide a response and the application would be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
On 28 April 2020 the City filed its submissions in response to the application for costs.
The applicant seeks a costs order totalling $27,724.80 for what the applicant submits are the costs incurred by the applicant in successfully resolving these proceedings in the Tribunal detailed as follows:
(a)expert acoustic evidence (including GST) - $4,235;
(b)expert town planning evidence (including GST) - $13,307.80;
(c)representation by Ms Gorman (director of the applicant) (including GST) - $9,570; and
(d)hearing fee - $612.

Legal principles in costs applications in the Tribunal

The effect of s 87(1) of the SAT Act, relevant to these proceedings, is that each party bear its own costs unless the Tribunal orders otherwise. This is the usual approach in review proceedings under the Planning and Development Act 2005 (WA) (PD Act): Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 (Citygate Properties Pty Ltd and City of Bunbury) at [28].
However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In the recent decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) found at [51]:
Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
(footnotes omitted)
The power to make a costs order includes the power under s 87(3) to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207 at [64].
Costs orders are generally only made in review proceedings where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act: Tran and Town of Vincent [2009] WASAT 123 (S); (2009) 65 SR (WA) 260 at [35]; Humphreys and City of Stirling [2011] WASAT 105 at [27].
The relevant expectation in s 87(4)(b) of the SAT Act that the Tribunal must have regard to in determining a costs application is whether the decision-maker has genuinely attempted to make a decision on its merits. However, s 87(4) does not limit the matters which might be considered under s 87(2) of the SAT Act: Citygate Properties Pty Ltd and City of Bunbury at [32].
The fact that the Tribunal reached a different conclusion from the decision-maker does not, of itself, inevitably lead to a conclusion that the City failed to genuinely attempt to make a decision on the merits of the proposed development: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 at [50] (Myburgh and City of Stirling).
In Ransberg and City of Bayswater [2016] WASAT 43 (S) at [26] (Ransberg and City of Bayswater) the Tribunal found, by analogy to the finding in Myburgh and City of Stirling, the fact that the decisionmaker reached a different conclusion to that recommended by professional advice also does not, of itself inevitably lead to a conclusion that the decision-maker failed to genuinely attempt to make a decision on the merits of the proposed development.

The submissions

The applicant submitted that the City should be ordered to pay its costs for the following reasons:
(a)The City's conduct has contributed to costs being unnecessarily incurred by the applicant. In refusing approval on a number of occasions despite the applicant providing all additional information as requested and the City's planning officer recommending approval.
(b)The City's case was weak and without merit. The reasons given for refusal of concern regarding the effective mitigation of noise and the negative impact it may of the immediate locality had already been addressed by the applicant prior to the City's refusal.
(c)The applicant had to commence the Tribunal proceedings to in order to establish an objectively clear entitlement.
The City submitted that the application for costs should be dismissed for the following reasons:
(a)The proposed development of a dog day-care centre did not readily fall within any of the land use categories in the City of Perth Local Planning Scheme No. 2 (CPS2) and was required to be considered as an 'Unlisted Use'. As such cl 34 of CPS2 provided that the City could not approve the proposed development unless it followed the advertising procedure and be satisfied by an absolute majority that the proposed development was consistent with cl 67 of the Deemed Provisions in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
(b)Significant objections were lodged against the proposed development.
(c)It is not unusual for a planning officer's recommendation not to be followed. The officer's report outlined the various potential outcomes of a decision to conditionally approve or refuse.
(d)No unreasonable or inappropriate conduct occurred during the City's decision-making process.
(e)There is no compelling reason to doubt that the City attempted to arrive at a proper planning decision on the merits of the proposed development.
(f)The decision to refuse was primarily regarding the noise impact of the proposed development. It is conceded that the applicant went to great lengths to demonstrate that noise could be appropriately managed. However the City ultimately took a precautionary approach by refusing the proposed development as it could not be satisfied with certainty that the amenity of the locality would not be negatively impacted.
(g)The decision of the Tribunal resulted in more stringent noise mitigation measures than were included in the officer's recommendation to the City.
(h)As the proposed development is an Unlisted Use there is no 'objectively clear entitlement' to approval as submitted by the applicant.

Consideration

Before determining whether the Tribunal will exercise its discretion to award any costs to the applicant, the Tribunal makes the following observations as to the types or categories of costs sought by the applicant.
The applicant was represented at the hearing by the Director of the applicant, Ms Gorman. Ms Gorman is a senior chartered engineer and did not appear as an expert witness. Ms Gorman is not a legal representative and does not fit within the exception in s 39(1)(f) of the SAT Act coupled with r 63 of the State Administrative Tribunal Rules 2004 (WA). Apart from some (minor and somewhat rare) exceptions not relevant to these proceedings, such as that found in s 87(3) of the SAT Act, a party who represents himself or herself in the Tribunal will not be granted costs for his or her own time preparing and presenting his or her case (this includes a Director of a company). Even if the Tribunal was minded to exercise its discretion to award costs in favour of the applicant, none of Ms Gorman's costs as claimed can be, or would be, granted by the Tribunal in the circumstances.
If the Tribunal was of the view that costs should be awarded in this case, the expert evidence costs and hearing fee are costs, in whole or in part, that could have been recovered.
For the reasons which follow, the Tribunal has determined that it declines to exercise its discretion under s 87 of the SAT Act in favour of the applicant being awarded any costs of the proceedings or to compensate the applicant under s 87(3) of the SAT Act.
The Tribunal does not agree with the applicant's submission that the City's conduct has contributed to costs being unnecessarily incurred by the applicant. The applicant had a right to seek a review of the City's refusal on 30 April 2019 and was successful upon review. Costs were necessarily incurred by the applicant in order to be successful in that approval process.

Further, the Tribunal finds that the City's case on review was not, as the applicant submits, weak or without merit. The Tribunal did not find that the City's concerns were in any way insignificant. The Tribunal ultimately found that the concerns raised by the City and the nearby residents and office workers given as reasons for refusal were either ameliorated by the conditions (the final terms of which were agreed by the parties during the hearing) or addressed in the detail included in the management plans provided prior to the hearing (not prior to the reconsideration as suggested by the applicant).
The applicant submits that it had to commence the Tribunal proceedings in order to establish an 'objectively clear entitlement'. Obtaining development approval of an 'Unlisted Use' in CPS2 involves satisfying particular criteria and the exercise of a discretion to grant approval. Therefore, such a process of approval could never be described as establishing an 'objectively clear entitlement'.
In particular, in having regard to s 87(4) of the SAT Act, the Tribunal finds that when the City refused approval on 30 April 2019 and upon reconsideration on 23 June 2019, the City did genuinely attempt to make a decision on the merits of the proposed development. The Tribunal also finds during the course of the Tribunal proceedings, or indeed at any time, that the City did not conduct itself in an unreasonable manner.
The Tribunal finds that the circumstances of these proceedings can be substantially distinguished from the circumstances which occurred in Ransberg and City of Bayswater which involved a refusal to amend an existing approval which all the expert evidence agreed would markedly ameliorate any potential adverse amenity outcomes of the existing approval. The Tribunal notes the other costs decisions cited in Ransberg and City of Bayswater at [27]-[29] which can also be distinguished from the circumstances of the present application.
Whilst the City, as it is entitled to do as the decision-maker, did not accept the planning officer's recommendation for approval, the circumstances of the present proceedings are very different to that which occurred in Ransberg and City of Bayswater. A dog day-care centre was a somewhat novel proposed development in the West Perth Precinct. Whilst capable of approval in the West Perth Precinct, the proposed development had not been approved before in an inner city mixed commercial and residential area such as West Perth. Thus, even though the Tribunal ultimately took a different view and approved the proposed development, the Tribunal does not find there was anything unreasonable in the City's two refusals to approve or that it did not on each occasion genuinely attempt to make its decision on the merits of the proposed development or that the City conducted the proceedings in the Tribunal unreasonably.
The application for costs principally relies on the submission that because the Tribunal ultimately reached a different view to the City on similar information, the applicant should be granted costs of bringing the matter to the Tribunal to obtain approval. The exercise of the Tribunal's review jurisdiction regularly makes true the maxim that 'reasonable minds can differ'. However, the fact that the Tribunal ultimately reached a different view to the City at first instance or on reconsideration does not, on its own, form a sufficient basis for the Tribunal to exercise its discretion to make a costs order in the applicant's favour under s 87 of the SAT Act.
Therefore, in consideration of all of the facts and circumstances of this matter, the Tribunal declines to exercise its discretion to award any costs to the applicant.

Orders

Accordingly, the Tribunal will order as follows:
1.The application for costs is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS D QUINLAN, MEMBER

7 MAY 2020

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Citations

MADAME MA'S PROPRIETARY LIMITED and CITY OF PERTH [2019] WASAT 131

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