MANDURAH DOCTORS and CITY OF MANDURAH
[2007] WASAT 57
•28 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MANDURAH DOCTORS and CITY OF MANDURAH [2007] WASAT 57
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 25 OCTOBER 2006
DELIVERED : 28 FEBRUARY 2007
FILE NO/S: DR 194 of 2006
BETWEEN: MANDURAH DOCTORS
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Change of use - "dwelling" to "medical centre" - Impact on amenity - Traffic
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 4.5.1, cl 7.3, cl 7.5.1, cl 7.5.1(j), cl 7.5.1(n), cl 7.5.1(p), cl 7.5.1(x)
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA)
Result:
Application for review refused
Category: B
Representation:
Counsel:
Applicant: Mr J Strahan (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Greg Rowe & Associates (Planning Consultants)
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This was an application for review of a decision of Council to refuse a change of use from a "dwelling" to a "medical centre".
The proposed medical centre intended to operate with a maximum of four doctors operating at any one time (two full-time and two part-time).
The principal issue to be addressed was the impact of the proposed development on the amenity of the surrounding residential area.
The Tribunal found that there would be a significant impact on the amenity and such impact was inconsistent with the character and amenity of the area and the application was refused.
The application
This application is for the change of use from a "dwelling" to a "medical centre" at No 199 (Lot 597) Lakes Road, Greenfields (review site).
The review site comprises one lot with a total land area of approximately 2440 square metres and a total frontage to Lakes Road of approximately 30 metres which has a brick pier and timber inserts fence running the full length of the frontage. The review site contains an existing dwelling, which is currently vacant, and an outbuilding structure situated on the north-western portion of the site.
The proposed medical centre is intended to operate from the existing dwelling with a maximum of four medical practitioners operating at any one time. It includes the creation of accessways and 22 car parking bays, 17 of which are located on the northern boundary of the property and a further five bays located adjacent to the existing dwelling or the northwestern boundary of the property. Additional landscaping and planting is also proposed.
The review site forms part of a low density residential area entitled "Country Road Estate" and is surrounded on three sides by existing single residential dwellings at a density of "R5".
The review site is located on Lakes Road, which is described as a local distributor road within Greenfields and provides connections between Lakes Road and Gordon Road and Pinjarra Road. It is located 1 kilometre from existing commercial centres along Minilya Parkway, which is the site of the existing Murray Medical Centre, and is located approximately 2 kilometres from existing commercial sites on Murdoch Drive.
On the opposite side of Lakes Road there is land zoned "Rural Residential" and also "Residential", with a site diagonally opposite to the review site containing a yoga and natural therapy clinic.
The review site is zoned "Urban" under the Peel Region Scheme.
Applicant's submission
The applicant's arguments in support of the proposed change of use are summarised as follows:
(i)The City of Mandurah's Town Planning Scheme No 3 (TPS 3) contemplates the opportunity for non-residential uses to occur in residential areas and does not distinguish between different density codes as to where these should occur.
(ii) The City has no locational policy guidelines for the siting of medical centres in residential areas.
(iii)The Greenfields locality is identified as being reasonably central and accessible to service patients in Mandurah and nearby Murray Shire district and is situated close to existing health and medical facilities that the general practitioners operating from the review site need to service.
(iv)The Lakes Road Precinct Plan area preferred by the City as the appropriate location for the proposed medical centre does not have subdivided or developed land assembled or available, ready for occupation.
(v)Both acoustic consultants, in their expert evidence, agree that the erection of a solid screen wall, having a surface mass of at least 20 kilograms per square metre, is required on the southern, western and northern boundaries of Lot 597 in order to satisfy potential impact from noise emanating from the internal car park.
(vi)Examination of the restrictive covenant for the Country Road Estate confirms there is nothing preventing solid fencing from being erected behind the building line.
(vii)Council has discretion to vary the provisions of its Fencing Policy Guidelines to allow a different type of material in certain circumstances. The applicant contends that there would be a strong case to argue that a nonresidential use of land, which may be approved under TPS 3 at Council's discretion, would be an instance where this policy variation could be effected.
(viii)The applicant contends that when the adjoining northern neighbour, Mrs L Hartley, purchased Lot 596, she would have known the house was in close proximity to the side boundary and would have had an expectation that out of any property in the immediate area, hers would be more likely to require a solid fence along the side boundary in order to protect amenity and security.
(ix)On the basis of a solid fence being an acceptable screening structure to minimise noise intrusion, the applicant is prepared to ensure that the material used is compatible with the character of the Country Road Estate.
(x)In terms of the recommended wall height of 2.4 metres for the screening fence along the northern lot boundary of Lot 597, the applicant contends there is still sufficient ventilation around the rest of the dwelling not to cause a substantial barrier in terms of airflow movement.
(xi)The erection of solid screen fencing with appropriate measures to "soften" the appearance of the wall via suitable landscaped planting and brushwood style material, would not result in a built form that looks out of character with the current streetscape or ambiance of the Country Road Estate.
(xii)The applicant contends that Lakes Road has become a busy arterial road with in excess of 7000 vehicles per day, which is anticipated to dramatically increase once the Perth-Bunbury Highway is constructed within the next three years.
(xiii)Siting of the proposed medical centre on the mid-block location fronting a major arterial road is consistent with orderly and proper planning.
(xiv)Precedent has already been set by Council by allowing other similar medical centres and health-related facilities to be established with frontage to Lakes Road in the immediate vicinity and diagonally opposite the review site. The previous approved use for a home occupation, for the manufacture of dolls and cubby houses, had the potential to be far more intrusive on the amenity of the area than the proposed medical centre use.
Respondent's submission
The respondent contends, from the evidence presented, that the proposed medical clinic will not maintain the character and quality of this area and that:
(i)the area is a unique, low density, almost exclusively single residential environment characterised by an open, spacious and quiet character that is distinct from other residential areas;
(ii)the area forms part of a country estate underpinned with covenant controls which assist in the formation of the area's distinctive character and amenity;
(iii)properties surrounding the review site contain only post and wire fencing that contribute to the character;
(iv)to the extent that any approved commercial activities occur in the country estate area, they are of a scale and character that do not affect the quiet enjoyment of the locality;
(v)the scale and intensity of the proposed use is inconsistent with the character and amenity of the area and will not maintain the quality and character;
(vi)the character and quality of the area has been specifically established by the original subdivider (Peet & Co) as a country estate that is characterised almost exclusively by single residential dwellings on large lots with an open and spacious character supported by minimal fencing and significant stands of trees;
(vii)that character is further and specifically supported by Council's adopted Policy framework that seeks to retain an open and spacious character by limiting the size and scale of fencing to a maximum height of 1.2 metres and to be of open wire and timber post construction unless otherwise approved by Council;
(viii)both acoustic consultants agree that the use of the land for a medical clinic will not be able to meet the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) on its northern, western or southern boundaries because of the location of car parking and accessways on the property;
(ix)both acoustic consultants have provided evidence that to contain noise on site to meet the Noise Regulations, the erection of solid fences of up to 2.4 metres in height on the northern boundary and 2.0 metres and 1.8 metres on the western and southern boundaries along their full extent would be required. Both acoustic consultants noted the fencing materials would need to be of a masonry or similar construction, as outlined in their joint statement;
(x)the form and scale of fencing will be inconsistent with both the established character of the area and the Policy framework of the respondent. The respondent contends that the Fencing Policy forms an important component to maintaining the intended and desired quality and character of the area;
(xi)if the medical clinic proceeds, the imposition of the solid fencing that will be necessary to protect the neighbouring properties from noise impacts will have an adverse impact on amenity;
(xii)Mr Bordbar's evidence should not be accepted as a reliable measure of traffic generation for the simple reason that Mr Bradshaw, in his own evidence, has already deduced that each full-time practitioner sees 30 patients per day;
(xiii)Mr Bordbar conceded that the figure of 240 may represent a maximum traffic generation figure for the review site;
(xiv)the evidence presented by Dr Bradshaw provides a more accurate methodology for calculating vehicle trips;
(xv)the level of traffic to be generated is significantly greater than that generated by a single residential dwelling and has consequential amenity impacts on adjoining properties; and
(xvi)a medical clinic of this intensity and scale does not accord with the objectives of the Residential zone, which is intended to maintain the quality and character of the existing residential areas, and, therefore, Mrs Butterworth's evidence was that to approve this use on the review site would be contrary to orderly and proper planning principles.
Consideration
TPS 3 is the principle planning instrument under which this matter falls to be determined.
A medical clinic is an "SA" use under TPS 3 in a Residential zone. "SA" use means that the use may be developed after Council has granted planning approval after giving notice in accordance with cl 7.3.
Clause 4.5.1 of TPS 3 outlines the purpose and intent of the Residential zone to be:
" … to promote a high quality residential environment by maintaining the quality and character of existing residential areas and providing for a range of residential densities and housing types throughout the City."
The proposed use as "medical clinic" is defined under TPS 3 as being:
" … premises in which facilities are provided for one or more of the following: a medical practitioner, a dental practitioner, physiotherapist, chiropractor, masseur, naturopath, or a person ordinarily associated with a medical practitioner in the investigation or treatment of physical or mental conditions, injuries or ailments."
Clause 7.3 of TPS 3 sets out the requirements for "SA" uses being advertised, and cl 7.5.1 states:
"The Council in considering an application for planning approval shall have due regard to:
(a)the provisions of this Scheme and any other relevant town planning scheme operating within the district;
(b)any relevant proposed new town planning scheme of the Council or amendment or proposed Region Scheme amendment insofar as they can be regarded as seriously entertained planning proposals;
(c)any approved Statement of Planning Policy of the Commission;
(d)any other policy of the Commission or any planning policy adopted by the Government of the State of Western Australia;
(e)any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
(f)the preservation of any object or place of heritage significance;
(g)the requirements of orderly and proper planning;
(h)any relevant submissions or objectives received on the application; …
(m)the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development;
(n)the size and shape of the land to which that development application relates, the siting of any building or works thereon and the area to be occupied by that development; …
(p)the relationship of that development to development on adjoining land or other land in the locality;
(q)whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land;
(r)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the and the probable effect of that traffic on the movement of traffic on that road system; …
(u)whether adequate provision has been made for the landscaping of the land to which that development application relates and whether any trees or other vegetation on the land should be preserved; …
(x)the existing and likely future amenity of the neighbourhood;
(y)the public interest; and
(z)any other planning considerations which the Council considers relevant."
The application under review was advertised for public comment in accordance with cl 7.3 of TPS 3 and a number of submissions and petitions were received in respect of the matter.
Council ultimately refused approval for the application for the following reasons:
1)The proposal was contrary to cl 7.5.1(j), cl 7.5.1(n), cl 7.5.1(p) and cl 7.5.1(x) of TPS 3 as it would be detrimental to the quiet residential amenity of the occupiers of the nearby dwelling houses, by a raise in noise and nuisance arising from increased activity and traffic generation on the review site.
2)The proposal was contrary to cl 4.5.1 of TPS 3 as outlined as to the purpose and intent of the Residential zone as "[to intend] to promote a high quality residential environment by maintaining the quality and character of existing residential areas and providing for a range of residential densities and housing types throughout the City".
3)The scarce nature of low density residential environments would suggest that this alternative type of residential environment should be maintained.
4)The intensity of the proposed use is incompatible with the existing character of the area.
5)The proposal is contrary to orderly and proper planning of the locality and will create an undesirable precedent for similar uses in this locality.
Council of the City of Mandurah resolved to refuse the application on 16 May 2006 and an application to review that decision was filed with the Tribunal on 15 June 2006. The matter came on for final hearing on 25 October 2006.
Both the applicant and respondent were represented at the hearing and both parties called expert planning and acoustic evidence.
For the applicant, Dr Bradshaw, the principal of the proposed medical practice, gave evidence, as did a traffic expert.
The respondent also called two residents of the area.
Issues
The parties, in essence, agreed that the principle planning issues to be determined related to the question of amenity and, in that regard, the matters to be considered were those of traffic, noise generation and increased activity.
The experts agreed that the dwelling structure would be retained, and the issues regarding the development are exterior to the building, and that it was the proposed car park and vehicle movements associated with the proposed medical centre that had the potential to impact on the surrounding area and generated the principle planning issues.
It was common ground that the operation of the medical centre would involve four medical practitioners, two of whom would be full-time and two part-time.
From a traffic perspective, the applicant's traffic expert was of the opinion that there would be a very low impact upon Lakes Road traffic from the proposed development, and from the perspective of traffic using Lakes Road that is accepted. However, the respondent contended that the level of traffic generated is adverse to the amenity of the area as it relates to the actual review site and the residential properties immediately surrounding the review site.
Mr Bordbar, a traffic expert called by the applicant, gave evidence that a medical centre would generate a daily trip volume of 50 trips per 100 square metres of the total floor area and a peak evening hour trip volume at a rate of five trips per 100 square metres of gross floor area. He contended that for a 230 square metre medical centre which was proposed in the present case, that would generate 115 trips daily and 12 trips over the peak afternoon hour of a weekday, and those trips include both in and out movements.
Mr Bordbar confirmed that his model was based on floor area and did not take into account the number of practitioners that would be operating from the premises.
Doctor Bradshaw who operates the business known as Mandurah Doctors and would be the principal of the proposed business at this site, gave evidence of the number of patients that he himself may see in any one day, and the respondent, working from that number, submitted that the correct total number of vehicles generated from the proposed site per day would be up to 240 vehicles per day.
The Tribunal is satisfied that, regardless of the actual number of trips, which the Tribunal feels would be somewhere between the number proposed by Mr Bordbar working on a square metre basis and the upper figure proposed by the respondent using the number of patients Dr Bradshaw confirmed might visit the medical clinic, there is no doubt the level of traffic that would be generated by the development would be significantly greater than that generated by a single residential dwelling and, in that respect, the impact on adjoining properties and amenity generally must be taken into account.
Both the applicant and the respondent called acoustic consultants, who both agreed that the proposed traffic generated by the proposal, even based on traffic of 115 vehicles per day as per Mr Bordbar's calculations, would create a noise impact that would exceed that allowed by the Noise Regulations.
In a joint statement, both acoustic consultants agreed that to sufficiently attenuate the increased noise impacts, the following measures would be necessary:
1)a solid wall free of any gaps and having a surface mass of at least 20 kilograms per metre squared (for example brick, limestone, concrete, etc) is required on the southern, western and northern boundaries of Lot 597;
2)the minimum recommended wall heights are:
2.1)1.8 metres high on the southern boundary;
2.2)2.0 metres high on the western boundary; and
2.3)2.4 metres high on the northern boundary.
What is clearly established, therefore, and agreed by all the parties is that the proposed development, even if it only generated 115 traffic movements per day as proposed by the applicant's traffic engineer, Mr Bordbar, that without any acoustic attenuation, the required noise limits would be exceeded and that the measures outlined above, namely, a solid wall of a particular surface mass and at a particular height, would be necessary to attenuate the likely noise from reaching surrounding residential premises.
Apart from the type of fencing that might be required to attenuate noise emissions from the proposed development, the question of fencing generally in the area was also canvassed extensively.
The proposed development is to be situated fronting Lakes Road but as part of what is described as the "Country Road Estate".
It was submitted that Country Road Estate was originally established by the original subdivider as a unique residential estate containing almost exclusive large single residential lots with an open and spacious character with minimal fencing and a well vegetated environment.
When the original estate was developed, specific controls were put in place by way of restrictive covenants to control, amongst other things, the uses, the type of development and, indeed, the type of fencing that could be allowed.
It was acknowledged by both parties that the restrictive covenants referred to are not enforceable in a town planning sense, although the respondent argued that they provided a significant expectation for the residents living in that community, and that a decision-maker should have due regard to such restrictive covenants.
It was agreed that TPS 3 allows officers assessing applications to have regard to restrictive covenants that are known to exist, provided that the restrictions relate to the matters or issues that fall within a local authority's jurisdiction and that Council has power to control.
It was also agreed by the expert planners that Council and the Tribunal in the present circumstances would have discretion to vary the provisions of Council's Fencing Policy Guidelines to allow a different type of material in certain circumstances and any variation would have to be assessed against the objective of the policy.
The resident witnesses, who live in close proximity to the review site, sought to retain what they described as the open and spacious character of the area, and wished to maintain the size and scale of fencing to a maximum height of 1.2 metres and for it to be, as far as possible, open wire and timber post construction which they felt was consistent with the predominant form of fencing in the area.
Ms Hartley, the neighbour immediately to the north of the proposed development, would be the person most affected by the impact the medical centre would have, as her dwelling is located only 2.0 metres from the northern boundary of the review site. Ms Hartley was particularly concerned about the proximity of the car parking, the majority of which would be along that boundary.
A primary issue to be determined in the present case is what impact the proposed medical centre may have on the amenity of the surrounding area and what is the best and preferable decision in respect of the orderly and proper planning of the area.
Whilst the respondent acknowledges that the planning system cannot be responsible for the circumstances of individual families, they point out that incompatibilities do occur, and in the exercise of proper discretion, the proposed use should not be located where such incompatibilities occur.
There was evidence that there was one other medical consulting room in close proximity to the review site also fronting on Lakes Road. However, evidence was given that that facility was previously approved under a different use classification and was for a single practitioner with a full-time residential component.
Other medical clinics occurred in proximity to Murdoch Hospital on Lakes Road and although the respondent has adopted the Lakes Road Precinct Plan, which Mr Flugge, the expert planner for the applicant, conceded was a seriously‑entertained planning proposal, the matter has not proceeded to where Council can yet approve development of individual commercial tenancies.
One of the reasons the applicant seeks to locate the development to this site was that other commercial sites investigated were too expensive.
Conclusion
It is clear from the expert acoustic evidence that a level of noise will be created by the use of the review site as a medical clinic that will necessitate noise attenuation measures to deal with that issue. The applicant has brought evidence to show that, by the imposition of physical measures, such noise could be managed. However, in doing so, substantial solid fences would be required on three of the four boundaries.
It is clear that the Residential zone is intended, as stated in TPS 3, to promote a high quality residential environment by maintaining the quality and character of existing residential areas and the residents of the Country Road Estate have an expectation, through the zoning, fencing policies and restrictive covenant that the quality and character of a low density residential area will be maintained.
It is also clear from the evidence received by the Tribunal that, in the present circumstances, the proposal to locate a doctor's surgery of the scale proposed on a site zoned "R5" will have a significant impact on the amenity and established character of the area due to the substantial barrier that would need to be put in place on the three boundaries adjoining the Country Road Estate to alleviate the noise emanating from the proposed development.
Furthermore, the amenity of the adjoining neighbours, particularly the neighbour immediately to the north, would be heavily impacted by the need to erect a solid (brick, limestone or concrete) wall to a minimum height of 2.4 metres along the entire boundary which would be 2.0 metres from the actual dwelling.
The substantial increase in traffic on the site would also impact negatively on the amenity of the area and the local neighbours in particular.
None of the above issues, in the Tribunal's view, would be complementary to the orderly and proper planning of the area or would assist in maintaining the quality and character of the existing residential area.
It was raised that the home occupation for the manufacture and sale of dolls and cubby houses located on the review site prior to the applicant purchasing the property was a precedent. However, although evidence in this respect was minimal, it was clear that the operator also lived on the premises on a full‑time basis and the intensity of the proposed use would appear to be far greater than that carried out previously.
The area where the review site is located known as the "Country Road Estate" is a low density residential environment, and the Tribunal is satisfied that the scale and intensity of the proposed use will have a significant impact on the amenity of the surrounding area generally and the immediate neighbours in particular, and is inconsistent with the character and amenity of the area, and should therefore be refused.
Orders
1The application for review is dismissed; and
2The decision of the respondent is affirmed.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
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