Marchmont Group Pty Ltd and Town of Vincent
[2007] WASAT 177
•5 JULY 2007
MARCHMONT GROUP PTY LTD and TOWN OF VINCENT [2007] WASAT 177
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 177 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:343/2006 | 26 - 27 FEBRUARY 2007 | |
| Coram: | MR P McNAB (MEMBER) | 5/07/07 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed and conditional approval given | ||
| B | |||
| PDF Version |
| Parties: | MARCHMONT GROUP PTY LTD TOWN OF VINCENT |
Catchwords: | Town planning Development application Former Salvation Army chapel and hall dating from 1919 Heritage listed Long history of non-residential use Zoned residential from 1985 by City of Perth Application for "Office Building" use and development Whether appropriate to approve such use and development Built form plainly non-residential Temporary use for "office" previously approved Neighbours' objections on amenity grounds Parking, traffic and noise complaints Whether neighbours' and objectors' concerns demonstrated oversensitivity Discussion of level at which amenity concerns become significant Noise and other problems could also occur in a residential area Amenity objections not sufficient to prevent approval Local policies had limited application to the circumstances of the case Subject land on immediate border with commercial zone and near commercial strip Significance of geographical and historical planning context Whether "interface" or "buffer" established on border zoning Benefit flowing from transitional effect Application for review allowed on certain conditions |
Legislation: | Brigatti Locality Statement, Policy 3.3.27 City of Perth Town Planning Scheme Metropolitan Region Scheme Non-Residential/Residential Interface Policy, Policy 3.4.3, Planning and Development Act 2005 (WA) Town of Vincent Economic Development Strategy 2005 - 2010 Town of Vincent Town Planning Scheme No 1, cl 38 |
Case References: | Australian Children's Foundation v Blacktown City Council (1987) 62 LGRA 96 Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10 Empire Securities Pty Ltd and Ors and Western Australian Planning Commission [2005] WASAT 98 Foley v Waverley Municipal Council (1962) 8 LGRA 26 Jones, v Shire of Murray [2003] WATPAT 119 Joubert and City of Joondalup [2005] WASAT 330 Maisano v Port Phillip City Council [2007] VCAT 62 Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Waters & Anor and Town of Vincent [2007] WASAT 128 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and in lieu thereof there will be a decision granting planning approval in the terms sought, subject to the following conditions:,(a) all signage that does not comply with the Town's Policy relating to Signs and Advertising shall be subject to a separate planning application, and all signage shall be subject to a Sign Licence application, being submitted and approved, prior to the erection of the signage;,(b) the hours of operation during which visitors can attend the premises shall be restricted to the following times: 8 am to 6 pm, Monday to Friday and 8 am to 1 pm on Saturday, inclusive;,(c) four car parking bays are to be available and used for car parking purposes at any one time;,(d) no street verge tree(s) shall be removed unless written approval has been received from the Town's Parks Services Section. Should such an approval be granted all costs associated with the removal and replacement shall be borne by the applicant's owner(s);,(e) a detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Barlee Street verge adjacent to the subject property, shall be submitted to and approved by the Town. All such works shall be undertaken within twenty eight (28) days of notification of this Approval and maintained thereafter by the owner(s)/occupier(s);,(f) all external fixtures, such as television antennas (of a non standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), designed integrally with the building, and be located so as not to be visually obtrusive;,(g) this approval is for an "Office Building" only and should the applicant/owner wish to change that use, it shall be necessary to reapply to and obtain approval from the Town prior to commencement of the new use;,(h) one (1) class 1 or class 2 bicycle parking facility shall be provided at a location convenient to the entrance of the approved development within twenty eight (28) days of notification of this Approval. Details of the design and layout of the bicycle parking facility shall be submitted and approved prior to installation of such facility |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MARCHMONT GROUP PTY LTD and TOWN OF VINCENT [2007] WASAT 177 MEMBER : MR P McNAB (MEMBER) HEARD : 26 - 27 FEBRUARY 2007 DELIVERED : 5 JULY 2007 FILE NO/S : DR 343 of 2006 BETWEEN : MARCHMONT GROUP PTY LTD
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Former Salvation Army chapel and hall dating from 1919 - Heritage listed - Long history of non-residential use - Zoned residential from 1985 by City of Perth - Application for "Office Building" use and development - Whether appropriate to approve such use and development - Built form plainly non-residential - Temporary use for "office" previously approved - Neighbours' objections on amenity grounds - Parking, traffic and noise complaints - Whether neighbours' and objectors' concerns demonstrated oversensitivity - Discussion of level at which amenity concerns become significant - Noise and other problems could also occur in a residential area - Amenity objections not sufficient to prevent approval - Local policies had limited application to the circumstances of the case - Subject land on immediate
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border with commercial zone and near commercial strip - Significance of geographical and historical planning context - Whether "interface" or "buffer" established on border zoning - Benefit flowing from transitional effect - Application for review allowed on certain conditions
Legislation:
Brigatti Locality Statement, Policy 3.3.27
City of Perth Town Planning Scheme
Metropolitan Region Scheme
Non-Residential/Residential Interface Policy,Policy 3.4.3,
Planning and Development Act 2005 (WA)
Town of Vincent Economic Development Strategy 2005 - 2010
Town of Vincent Town Planning Scheme No 1, cl 38
Result:
Application for review allowed and conditional approval given
Category: B
Representation:
Counsel:
Applicant : Mr SG Allerding (as Agent)
Respondent : Mr SJ Bain (As Agent)
Solicitors:
Applicant : Allerding Associates (Town Planners)
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Australian Children's Foundation v Blacktown City Council (1987) 62 LGRA 96
Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10
Empire Securities Pty Ltd and Ors and Western Australian Planning Commission [2005] WASAT 98
Foley v Waverley Municipal Council (1962) 8 LGRA 26
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Jones, v Shire of Murray [2003] WATPAT 119
Joubert and City of Joondalup [2005] WASAT 330
Maisano v Port Phillip City Council [2007] VCAT 62
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Waters & Anor and Town of Vincent [2007] WASAT 128
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Summary of Tribunal's decision
1 This was a review of the Town of Vincent's refusal to approve a change of use for certain land near Beaufort Street, Mount Lawley. The subject land was a former 1919 Salvation Army Citadel. The outward form of the building had been retained throughout the life of the building, and for most of its life it had also been used for non-residential purposes. It was heritage listed. However, in 1985 the City of Perth had zoned it residential, a zoning still applicable today. There had been some intermittent residential use of the building but it was currently used as an office. The applicant company wanted a permanent approval for the land to be used as an office building.
2 Under the Town of Vincent Town Planning Scheme No 1, such a use was not prohibited but the approval of the Town of Vincent (or, on review, approval of the Tribunal) would be needed. The Town refused; on review, the Tribunal reversed.
3 The Tribunal was not satisfied that the amenity concerns in terms of traffic, noise, parking and the like had been made out to the point that would justify refusal of the proposal. The Tribunal was strongly influenced by such factors as the non-residential form of the building, its long history of use for non-residential purposes, the immediately adjacent commercial zoning (commencing with a car park, through to Beaufort Street), and the fact that when the proposal was seen in its full geographical and historical planning context it had an additional beneficial transitional/interface function between zones.
4 The Tribunal gave approval for the proposed development upon certain conditions.
Introduction
5 This review concerns an application for the permanent change of use to an office development ("Office Building") in relation to No 69 (Lot 551), Barlee Street, Mount Lawley in the Town of Vincent (respondent, Town), being the whole of the land encompassed in Certificate of Title Volume 2180 Folio 589. The subject land is currently in a residential zoning. It comprises 469 square metres. The respondent Town has refused planning approval for the change of use.
6 The subject land has been improved by the construction of a chapel and hall complex, namely a Salvation Army Citadel erected in 1919. It
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- seems that, prior to 1973, the building was more or less continuously used by the Salvation Army as a church and hall. It retains that external built form.
7 It is not surprising that, in these circumstances, the building does not exhibit a standard residential appearance; in fact, it appears to be a church. The issue before the Tribunal is whether the proposed change of use ought to be approved.
History of the site
8 The essential history of recent development approval on the site (by the Town and its predecessor, the City of Perth) is given by Mr Bain, who appeared for the respondent Town, as follows:
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9 The Tribunal will return to the reasons for refusal of the respondent Town below.
10 The applicant's development proposal is for a "permanent change of use" of the subject land to an "Office Building". The applicant does not propose to modify the building in any way. Mr Allerding, who appeared for the applicant, submitted as follows:
"The building has been used for non-residential purposes over most of its life as an office building since [the respondent] granted a temporary approval in 2004. The area to be used for office building includes the existing ground floor and mezzanine levels, with a total gross floor area of 185 square metres.
A total of 5 parking bays are provided on site, with 4 of the bays being located within the garage, which is accessed via the rear lane way and one parking bay to the front of the site."
11 In June 2006, the subject land was selected for inclusion on the Town of Vincent's Municipal Heritage Inventory. A document produced by the Town, described as "places of interest", has the following description of 69 Barlee Street:
"Constructed in 1919. One of the few buildings in Perth designed in the Federation Chicagoesque style. It was converted in 1973 for a hall for the Cracovia [Soccer] Club and in 2003 for a residential building."
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12 The more detailed description on the place record form describes the subject land as "[a] single-storey brick building [with] a gable roof and distinctive gable parapeted facade."
13 At various points in the proceeding, further historical evidence emerged regarding the use of the subject land. The Tribunal was told that there had been an amalgamation of Lots 51 and 54, that is, numbers 67 and 69 Barlee Street into one lot, and use for a caretaker's residence was permitted. There appears to have been a subdivision approval given in 1996 but this was not proceeded with. Mr Allerding, in his final submissions, summarised the position as follows:
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14 A point emphasised repeatedly throughout the applicant's case is that for the vast majority of the "planning life" of the subject land, it has been used for non-residential purposes. It appears that this period runs from 1919 through to 1996. This is so notwithstanding that, sometime after 1999, there was, to use Mr Allerding's words, "sporadic and intermittent use of the site for residential purposes and as an artist's residence".
The planning framework
15 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS). Under the Local Scheme, namely the Town of Vincent Town Planning Scheme No 1 (TPS 1), the land is zoned "Residential R 50".
16 Importantly, the subject land directly abuts land which is zoned "Commercial" on its western boundary. It is separated by a 4 metre right of way. On the western side of the right of way is the Barlee Street car
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- park owned and operated by the respondent (and in the commercial zoning). That car park occupies the whole of the adjoining land through to Beaufort Street. The Beaufort Street commercial area is a highly developed area comprising businesses, restaurants, shops and the like.
17 It was common ground between the parties that from 1985 onwards the land had been zoned for Residential purposes under the City of Perth's then operating Town Planning Scheme. The extent of any non-conforming use rights in respect of the subject land was not explored by either of the parties and has not been the subject of any submissions of substance by either of them. In the circumstances, the Tribunal will proceed with the review upon the basis put forward by the parties, namely, whether an "Office Building" (or equivalent) ought to be permitted on the subject land, it being common ground between the parties that this non-residential use could be approved for the subject land by the exercise of a proper discretion by either the Town of Vincent (or for that matter, its predecessor, the City of Perth).
18 Mr Bain drew attention to cl 38 of TPS 1 which sets out the criteria by which planning decisions ought to be made. He also drew attention to the definition of "amenity" in TPS 1. It is unnecessary to reproduce these familiar provisions of TPS 1.
19 Mr Bain drew specific attention to two policies which may have application to the review. These were the Brigatti Locality Statement (Policy 3.3.27) and the Town of Vincent Economic Development Strategy.
20 The "Designed Future Character" objective for the Brigatti Locality is as follows:
"A limited number of non-residential uses which serve the day-to-day needs of local residents (such as local shops and child care facilities) are also appropriate where they are not likely to cause any significant disturbance to adjacent residences".
21 At this point it is convenient to mention Mr Allerding's submission that the subject land, when viewed in its context, including its non-residential form and the adjoining car park leading through to Beaufort Street, "functions as the primary transition between the commercial activities in Beaufort Street and the residential area of Barlee Street".
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22 The Tribunal observes that there must be a real question regarding the extent to which the Brigatti Locality Statement addresses the specific circumstances of the subject land. The locality border as shown on the Policy's map shows the right of way as the dividing line between Barlee Street and Beaufort Street, following the zoning between commercial and non-commercial. If there is any validity to Mr Allerding's submission regarding what is, in effect, an interface between the adjoining zones and localities, whether expressed as a transitional area or otherwise, then the application of this policy is problematic. This is a matter that the Tribunal will return to further below.
23 Mr Bain also drew attention to the Town of Vincent's Report titled Economic Development Strategy 2005-2010 (Strategy). This was prepared for the respondent by consultants and was adopted by the respondent in August 2005. Mr Bain's primary evidence was that this document suggests that development such as that proposed "should be stimulated within the commercial hubs. The subject proposal is outside of the Beaufort Street Commercial Hub".
24 It appears that the Strategywas adopted as a draft in August 2005. The applicant draws attention to the position of the respondent that further investigations and reports would be, apparently, undertaken in relation to that document.
25 With all respect to Mr Bain, the Tribunal is not persuaded that that document can carry much, if any, weight for the purposes of this review. First, it appears to be still in an embryonic form. Secondly, its primary focus is on economic development and not on planning matters expressed by reference to land use. Thirdly, and perhaps most importantly, the Strategy's exhortatory or aspirational tone seems insufficiently unconnected with the main issue facing the Tribunal. In any event, Mr Allerding suggested that if the proposal were to be approved, there would be a stimulation of relevant economic activity (a goal of the Strategy) "via expenditure within and use of local facilities such as shops and cafes". In the Tribunal's view it is unnecessary to resolve this issue as the economic development contemplated by the Strategy, which is in draft form, does not have any relevant or sufficient nexus with the planning decision which is to be made in this case.
26 The applicant drew attention to one of the respondent's policies which may be relevant to the review. That is, the Non-Residential/Residential Interface Policy (Policy No 3.4.3).
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- Mr Allerding, in his evidence, noted that the impact on the amenity of nearby dwellings through noise, illumination, traffic or other matters which is "in excess of normal residential living" was to be avoided by the application of that Policy. His case was that the evidence demonstrated compliance with this standard. Mr Bain, in his final address drew attention to other aspects of that Policy which suggested restrictions on commercial activity and the need for the applicant to demonstrate a lack of suitable alternative sites.
27 These are general matters that the Tribunal will return to further below.
History of the application
28 This matter comes to the Tribunal from a refusal of the Town of Vincent (respondent) formally communicated on 22 September 2006. An application for review in this Tribunal was made in October 2006. In December 2006 the matter was sent back to the respondent with an invitation to reconsider the matter after various alternatives to do with car parking had been discussed in directions hearings in the Tribunal. The respondent declined to vary its decision and the matter was eventually heard in the Tribunal on 26 and 27 February 2007.
29 The Tribunal was assisted by a view of the subject land in the presence of the parties.
30 Both parties submitted written final submissions in March 2007, and in late March 2007 the Tribunal received a consolidated document showing both parties' final position on the question of conditions.
The applicant's case on planning grounds
31 Mr Allerding first drew attention to the fact that TPS 1 did not prohibit an "Office Building" in the zoning applicable to the subject land. Next, as has already been mentioned, he drew attention to the "transition between the commercial activities in Beaufort Street and the residential area of Barlee Street". This position is reflected in the fact that the connection to Beaufort Street is through an open public car park, which, as already indicated, runs from the western edge of the property to Beaufort Street. He further emphasised that the subject land, in effect, has a "buffer" effect between the commercial area on Beaufort Street and the residential area which borders the subject land.
32 Mr Allerding also drew attention to the built form of the current building on the subject land. He emphasised that the current building is
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- not residential in either "scale or character". For example, it does not contain any front yard or setback.
33 On the question of the interface between residential and non-residential use, a matter addressed by the respondent's Policy 3.4.3, referred to above, Mr Allerding submitted that the proposed use of an Office Building would better protect the amenity of the residential area in comparison with other permissible uses contemplated by the respondent - such as local shops and child care facilities, activities which might require signage or "walk-up" trade.
34 On the general question of the amenity of the area and the impact of the proposal, Mr Allerding submitted that the use of the subject land as an office building would make "little difference to the amenity of the locality compared to if it was used for a residential dwelling. Its primary activities occur indoors and its limited hours of operation mean that any prospective impact after hours would be far less than those of a standard residential dwelling".
The applicant's other evidence
35 Mr G Zampatti is the sole director of the owner of the subject land. He confirmed that he purchased the property in 1996 from the Roman Catholic Church. He told the Tribunal that at the time he had purchased the building it was "in a rundown and dilapidated condition and during this time had suffered numerous break-ins, much vandalism and the rear toilets were being used as a 'shooting gallery' for drug users". He obtained subdivision approval from the WA Planning Commission in 1996 but did not develop the property as contemplated as he "did not wish to compromise its unique character". Between June 2003 and January 2004 he renovated the property. He successfully obtained from the respondent a planning approval (a "Temporary Change of Use" similar to what is now sought permanently) in September 2004. That business continues to operate and is the subject of this application.
36 The applicant also called one other principal witness, besides Mr Zampatti. Mr J de Pardo told the Tribunal that he worked at the subject land as a project manager. His evidence was solely confined to detailed observations and a photographic record of vehicles parked on both Barlee Street and in the respondent's Barlee Street public car park.
37 Mr de Pardo is not a traffic or parking expert. Nevertheless, his extensive photographic record indicates that during the day there is considerable surplus parking available both on the street and particularly
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- in the public car park. That evidence was not relevantly challenged by the respondent, but witnesses called by the respondent had a different view of the situation.
Neighbours' and objectors' evidence
38 The Tribunal received several witness statements in support of the proposal from neighbours. Mr and Mrs Brazier live at 67B Barlee Street. They have been living at either 67 or 67B Barlee Street for the last 11 years. They told the Tribunal that they did not have any difficulty parking "as the [public] car park is always empty as is Barlee Street". They said that they did not hear any noise coming from the premises that would be "any different from [noise coming from] a residential property. In fact, "[they enjoyed] the fact that there [was] no noise coming from the premises at all at night or during the weekends". Statements of support were also received from Mr G Minniti, who lives at 39 Barlee Street and had lived there for over 40 years, and Mr G Pacino who lives at 25 Barlee Street and who had lived there for over 45 years. Finally, the applicant called Mr B Daymon who resides at 3 Barlee Street, Mount Lawley. Mr Daymon gave general evidence in support of the applicant on parking and noise issues.
39 On the other hand, statements in opposition were received from the following neighbours: Mr L Incani, who resides at 63 Barlee Street; Ms A Keeping-Hood at 45 Barlee Street; Ms D Phillips at 16 Barlee Street; Mr JHL Griffiths at 38 Barlee Street; and Ms R Stratton at 52 Clarence Street, Mount Lawley. In addition, Ms E Vlok also gave evidence. Ms Vlok lives at the immediately adjoining property to 69 Barlee Street, namely 67 Barlee Street, Mount Lawley. Ms Vlok's evidence was in the form of a lengthy and comprehensive written statement. In addition, Ms Vlok was cross-examined at some length by the applicant's representative.
40 Ms Vlok's concerns were as follows: she had lost the opportunity to have a residential neighbour; her perception was that a decision favourable to the applicant would lead to further commercial uses in the locality; that she had had her sleep disturbed on "many occasions" by the sound of staff vehicles arriving and departing from the subject land, sometimes as late as 1 am. Ms Vlok also complained about staff working at the subject premises accessing those premises through a steel gate early in the morning and causing "loud banging sounds".
41 There was additional noise from an outdoor vacuum cleaner, a demonstration golf robot ("Dynamic Golf"), and from a mobile car
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- detailer visiting the subject land. On the golf robot, Ms Vlok told the Tribunal:
"While the office for Dynamic Golf Australasia is accommodated within 69 Barlee Street, this operation has also established a demonstration centre in the staff/visitor car parking area required as a condition of planning approval for the temporary change in use to commercial. …
This operation consists of a large piece of training equipment, artificial green turf, safety net, trainer's station, video screen and public seating. Considerable noise is generated by the use of the audiovisual equipment and golf balls repeatedly being struck and then hitting a surface. Sitting in our courtyard, this noise is clearly audible and makes this area unpleasant to be in.
Large signs have been erected on the common boundary wall at times and the 'meet and greet' for training session has occurred almost at the front gate to 67 Barlee Street and this detracts significantly from the value and residential nature of 67 Barlee Street."
"Effectively, Barlee Street has become the 'car park' for the commercial operations at 69 Barlee Street. Staff and visitors persistently park in Barlee Street and there has been a continuous disregard for the 1 and 2 hour parking restrictions that exist. A series of photographs taken over a 3 month[s] period and submitted to the Town of Vincent clearly show 15 staff/visitors cars (that we know of) consistently parking in Barlee Street without any regard for the parking restrictions and the needs of residents.
The number of cars parked in Barlee Street regularly peaks considerably higher than this throughout the week and this has reduced the parking available for residents and their visitors. At times, it has been impossible to find a car bay in close proximity to 67 Barlee Street.
While the Town of Vincent has made some effort to police these parking restrictions, this has only lead [sic] to a minor reduction in staff parking in Barlee Street, with staff moving
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- their cars up and down the street to avoid infringement notices. Some staff cars now park in Clarence Street, as well as in the immediate adjoining residential streets of Roy and Gerald and this only spreads the impact on the residential amenity further."
43 A fair summary of these objectors' concerns, both as received by the respondent in its deliberations below and in the Tribunal, appears in Mr Bain's witness statement. For convenience of reference, the Tribunal reproduces that summary, as follows:
• Commercial use is in conflict with residential zoning.
• Increase in traffic/street parking.
• Office was used beyond approved hours of operation.
• Building has a history of being used for unauthorised uses.
• Residential community should be retained and commercial uses should be limited to commercial areas (that is Beaufort Street).
• Set an undesirable precedent.
• Staff and visitors are currently parking in the street, across driveways and the front of the office as they do not access on-site car parking.
• The use is not consistent with the orderly and proper planning and the preservation of the amenity of the locality.
• Non compliant with the Town's Policy relating to the Brigatti Locality, as a property development company, financial planning and architect does not serve the day-to-day needs of local residents.
• Proposal undermines the economic viability of the Beaufort Precinct.
• The office use has not complied with the previous planning conditions.
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- • The subject property is currently acting as the office for "Dynamic Golf Australasia".
44 As has been mentioned, Mr Bain's case relies upon these objections, objections which, in part, reflect the respondent's stated position, set out above, for refusing planning approval.
Discussion of the case: parking and traffic issues
45 In Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10 the Land and Environment Court of NSW was faced with a review of a change of use of one residential unit to a commercial unit in a residential development of four units in a heritage-controlled nineteenth century former church. Although the planning instruments there under consideration had certain specific requirements (indicated below, and not exactly mirrored here), the reasoning of the learned Commissioner is instructive, as it deals with broadly similar concerns to those raised in this review (at [30] - [33]):
"The key question to be answered is whether the demand for off street parking as a result of the proposal would 'detrimentally affect the enjoyment by an occupier of any lands adjoining or adjacent to, or in the neighbourhood'. [Counsel for the applicant]'s submission is that a 'detrimental effect' would be one that is measurable, not fleeting and would result in a consistent or at least frequent unavailability and competition for parking spaces. I accept this submission.
Regardless of whether credits are granted or the different figures for existing car parking spaces [sic], the evidence of both traffic experts is that the existing capacity can satisfy the increased demand for on street parking generated by the development. While the development will increase the demand for on street spaces this will not result in a detrimental impact ie a consistent or frequent unavailability of parking spaces. There is already competition for on street parking at different times of the day and residents without on-site parking sometimes experience inconvenience as they search for spaces. However, based on the evidence, the proposed development will not exacerbate this situation to the extent that it does not meet the criteria in [the planning framework].
[This framework] clearly envisages that in conservation areas commercial uses will occur within residential areas provided
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- there is no detrimental impact on amenity. The nature of existing buildings within conservation areas means that it is likely that parking on site would not be able to be provided to satisfy the requirements in the parking [planning instrument]. This is demonstrated by commercial development in the area where restaurants, art galleries and shops do not provide parking but contribute to the mixed and varied nature of the area.
The proposed commercial use will have more impact than the approved residential use. [The planning framework] does not require that this be considered, but only whether the proposed commercial use would have a detrimental impact. For the reasons outlined above I accept that the proposed real estate agency will not have a detrimental impact and meets the requirements of [the planning framework]."
46 Whilst no expert traffic and parking evidence has been produced in this case (and the commercial use here is unlikely to match the scale of the increase in the NSW case), the evidence here broadly indicates that on some occasions "[t]here is already competition for on street parking at different times of the day and residents without on-site parking sometimes experience inconvenience as they search for spaces". However, here a reasonably large public car park exists nearby, even if not free of charge, and on-site parking is provided for at the rear of the site (and at the front). Only occasional on-street parking is required during the evening - unlike a fully occupied residential complex.
47 The occupation and use of, it seems, two of the enclosed bays at the rear for a commercial golf robotic practice device (discussed further below) is of marginal impact on the parking in the street in the circumstances of this case. Unlike other cases, here the Tribunal is in the position of evaluating the impact of an existing development (as the evidence is available and has been produced), albeit that the review itself must proceed in the abstract as to the appropriate land use concept as if the development were not subsisting.
48 In the Tribunal's view, the parking and traffic arrangements that would flow from the proposed development would not sufficiently adversely affect the local residents' amenity to the point where the proposed land use and development should be denied approval.
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Discussion of the case: Neighbours' and objectors' evidence
49 The Tribunal has often remarked upon the natural and understandable tendency of neighbours to become, in part, oversensitive to the impact of developments that they disagree with, and which they see as inimical to their settled way of residential living. See, for example, Joubert and City of Joondalup [2005] WASAT 330 at [38] citing Foley v Waverley Municipal Council (1962) 8 LGRA 26 at 30 on "the natural human tendency to exaggerate difficulties and problems". See also, Waters & Anor and Town of Vincent [2007] WASAT 128 where it was said, at [71]:
"Moreover, in such cases, in the experience of the Tribunal, some allowance must be had in relation to [the] sensitivities of neighbours in this position. In Burnett and Town of Cambridge [2006] WASAT 29 it was noticed, at [30], that there can often be 'some unintended, albeit understandable, oversensitivity regarding [a] neighbour's subjective amenity concerns ... which, if the matter were to be viewed more objectively, would not necessarily result in concerns expressed to such a degree'. With the greatest of respect to the objecting neighbours, this is possibly the case here."
50 Here, the evidence suggests some division of opinion amongst the neighbours exacerbated, it seems, by incidents of poor communication and misunderstandings between some of them and the applicant's representatives. In planning matters such disputes and differences are not uncommon. Such a division of opinion does not necessarily indicate a lack of good faith on anybody's part. It is in any event not the role of the Tribunal in these circumstances to mediate away those concerns, still less to rule upon them in any adjudicative way. What the Tribunal must do is to come to a conclusion on the overall merits of the proposal, taking all of the neighbours' and objectors' relevant views into account in the matrix of planning principles and other evidence.
51 A step in that process is the conclusion to be reached by the Tribunal on the likely impact, if any, upon local amenity resulting from the proposed development. The evidence here is by no means critical enough to suggest that the amenity of the immediate locality will be impacted upon to the point where refusal is indicated.
52 Of the most immediately affected neighbour with the strongest concerns about the existing operation, that is Ms Vlok, it should be recognised that apart from, with respect, some possible oversensitivity of
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- the kind mentioned above, the matters of which she complains (for example the sounds of a steel gate crashing, making "loud banging sounds") might well also eventuate from residential neighbours, and in any event is partly off-set by the absence of such activities for the whole of or for large parts of the weekend. Ms Vlok has no doubt been inconvenienced from time to time, and has attributed these inconveniences to the representatives or associates of the applicant, but the matters that she complains of are not sufficient to demonstrate amenity inroads to the degree required. To adapt the words of Bignold J, taken from another planning context, in Australian Children's Foundation v Blacktown City Council (1987) 62 LGRA 96, at 103 (emphasis added):
"Even if there is some noise escape to neighbouring premises ... I would not regard the temporary inconvenience to the amenity of the residents … to be so serious or significant as to require the rejection of the proposal."
54 The Tribunal is not persuaded that a relevant and serious diminution in the amenity of the immediate locality is made out by the objectors or the respondent.
The commercial robotic golf operation
55 There were concerns expressed about the small-scale commercial robotic golf operation conducted by or on behalf of the applicant in the rear enclosed garage. On the Tribunal's inspection of the subject land that machine was seen (and heard) in operation. Its impact appeared to be minimal and the issue is incidental to the questions to be decided here. It might well have an impact on parking, but as indicated above that impact would be minimal taking all of the circumstances into account.
56 Further, the precise issue of the lawfulness or otherwise of that device is not currently before the Tribunal, as the Tribunal is solely currently concerned with whether certain land use and development should be approved for the subject land (that is, with the use class "Office Building"). It is principally a matter for the respondent to take such advice as is appropriate and to take such steps as are necessary (if any) in relation to this matter if a regulatory concern presents itself. The record in these proceedings may contain some useful material relevant to that task
(Page 19)
- when and if a decision is made to inquire further into the matter. This would include the final conditions to be imposed upon the development (see below).
The transitional/interface issue
57 In Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 this Tribunal noted, at [52], in the circumstances of that case that "[i]t was accepted by the experts that the zone interface require[d] some transition in the built form". The zone interface there under consideration related to the City of Albany and "[t]he juxtaposition of an R160 coding and an R30 coding across a property boundary [which] is an example of very poor strategic planning" (at [12]). The planning framework also included a written policy which treated the subject land as "zoned Central Area, [but also included the land] in the residential, rather than in the central business district precinct for the purposes of [that] Policy". While the circumstances here in no way resemble this unsatisfactory scenario, the transitional/interface principle alluded to remains relevant. See also, Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 where the Court said, at [25]:
"As a matter of principle, at a zone interface … any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone."
58 These principles, when applied here, can, of course, cut both ways. However, if Mr Allerding's assertion were to be accepted, to the effect that this site when viewed in its full geographical and historical context performs a useful de facto transitional/interface development/zoning role (also described by him as a "filter" role - all of this reflecting the language of the interface policy: see Policy No 3.4.3), then the relevance or weight of the Brigatti Locality Statement in its application to the present circumstances is further brought into question. Even more importantly, such a transitional role for the subject land might be seen as a positive factor suggesting that, specially given the subject land's built form and non-residential land use history, a non-residential use is not inappropriate.
59 In the Tribunal's view, Mr Allerding's expert opinion should be accepted. It is not inconsistent with accepted town planning principles (see above), and is supported by the largely uncontested historical and geographical evidence in this case.
(Page 20)
Conclusions
60 The starting point must be that, in an appropriate case, a non-residential land use of the type under consideration here might be permissible in residential areas, as TPS 1 contemplates. In Jones v Shire of Murray [2003] WATPAT 119 the former Tribunal observed, at [30], that:
"It is not unusual for residential areas, in the broadest sense, to include non-residential uses … [The Town Planning Scheme] allows for applications for these activities to be lodged for consideration by Council. Each of these uses is not permitted as of right, but may be allowed at the discretion of the Council. It is necessary therefore to examine the potential impact of the use to determine whether it might be allowed or should be refused. It is not sufficient to refuse the application merely because the locality is mostly zoned Residential."
61 As is indicated above, the Tribunal is not satisfied that the suggested amenity concerns have been demonstrated to a sufficient level such that refusal is warranted. To the extent that amenity concerns remain, they may be satisfactorily addressed by the conditions to be imposed. These are discussed below.
62 The subject land has had a very long history of non-residential land use. Its built form is plainly non-residential. Its zoning as residential is a relatively recent event in its history, and, in any event, does not per se prevent such commercial activities as are proposed. Similarly, the relatively recent approval, in 1996, for use for residential purposes is, in the circumstances of this case neutral. Mr Bain's point that the neighbours' reasonable amenity expectations were fixed in terms of residential contemplation must be seen in this light.
63 The subject land is on the immediate border to a commercial zoning, and is close to a major commercial strip on Beaufort Street. When the proposal is seen in its full geographical and historical planning context it does, in the Tribunal's opinion, have an additional transitional/interface function, if not a benefit in terms of orderly planning and land use. No policy of the respondent (other than perhaps aspects of Policy No 3.4.3) directly speaks to the circumstances of this proposal. To the extent that any other policy might touch upon the matter, it should be regarded as insufficient to control the outcome of this review. Any development proposal should be assessed against all of these matters, and such an assessment clearly favours the applicant.
(Page 21)
64 There is thus no reason of sufficient substance or relevance why conditional planning approval ought not to be given to the proposed development.
Draft conditions
65 The first condition proposed by the respondent is:
"(a) all signage that does not comply with the Town's Policy relating to Signs and Advertising shall be subject to a separate planning application, and all signage shall be subject to a Sign Licence application, being submitted and approved prior to the erection of the signage;"
66 The applicant accepts this condition. It will form part of the conditions of approval. However, the applicant disagrees with proposed condition (b), which provides as follows:
"(b) the hours of operation shall be restricted to the following times: 8 am to 6 pm Monday to Friday and 8 am to 1 pm on Saturday, inclusive;"
67 The respondent's view is that condition (b) "is a standard condition and it is appropriate to restrict the hours of operation given the property is zoned residential and is located in a residential area". The applicant submits "that during certain busy periods for the current office uses a staff member may work beyond the hours stipulated" in the condition put forward by the respondent. The applicant submits "that the operation of the premises by staff only would not adversely affect the amenity of adjacent residents and could therefore be supported in view of the demonstrated low impact nature of the [approved land] use". The applicant's suggested alternative is as follows:
"(b) The hours of operation during which visitors can attend shall be restricted to the following times: 8 am to 6 pm, Monday to Friday and 8 am to 1 pm on Saturday, inclusive."
68 In the Tribunal's view the applicant's position should be preferred. It is unreasonable nowadays to restrict the operational hours of busy professionals in a small commercial office; it is, however, quite reasonable to curb visitor hours to preserve amenity impacts on neighbours.
(Page 22)
69 The parties also disagree as to condition (c), which deals with parking spaces. The draft as originally proposed by the respondent was as follows:
"(c) the car parking area(s) on the subject land shall be sealed, drained, paved and line marked in accordance with the approved plans within twenty eight (28) days of notification of this Approval and maintained thereafter by the owner(s)/occupier(s) to the satisfaction of the Town;"
70 The parties have, however, agreed to the following amended condition, in part to read:
"Four car parking bays [are] to be available and used for car parking purposes at any one time."
71 The respondent would wish to see added to this clause the following rider:
"The bays shall conform to the size and dimensions specified in the [respondent's] policy on Parking and Access."
72 The respondent's submission is that "the size and dimensions of the bays are important to specify as the bay at the side of the building at the front does not conform and it was the [four] bays in the [rear] garage that were accepted as part of the [2004] temporary approval. Two … of these are [now] used for [the] dynamic golf [robot operation]".
73 The applicant's counter submission is that "the [respondent] has already accepted the bay at the front as an acceptable parking bay as evidenced in Council's Minutes dated 14 September 2004". On that basis, the applicant would be prepared to accept a condition that required them to meet the requisite number of bays, as per TPS 1, which is as follows:
"(c) four car parking bays [are] to be available and used for car parking purposes at any one time;"
74 In the Tribunal's view, the mandatory use of four bays is a reasonable compromise. In part it also reflects the position on the ground, and it is generally consistent with the temporary approval.
75 Conditions (d) and (e), dealing respectively with the removal of street verge trees and landscaping, are not objected to by the applicant. They will form part of the conditions of approval.
(Page 23)
76 The parties disagree with respect to condition (f), dealing with the maximum gross floor area. The respondent proposes a condition, as follows:
"(f) the maximum gross floor area of the office shall be limited to 185 square metres. Any increase in floor space or change of use on the subject land shall require Planning Approval to be applied to [sic] and obtained from the Town;"
77 The respondent's view is that should "modified condition (b) [sic: (c)]" not be accepted (that is, dealing with car parking bays) then this condition is appropriate "as it would prevent the garage being used for other uses as has occurred with Dynamic Golf".
78 The applicant says in reply:
"The gross floor area is limited by the floor area of the existing building and is as per what is shown of the plans submitted. The use by Dynamic Golf is incidental to the activity of the Office Building. Any change from the existing area (and therefore the existing building) would require re-approval from Council either through a change of use or new development approval application."
79 The Tribunal has determined the number of parking bays to be available at four, which might already have an indirect practical impact on the robotic golf operation. The Tribunal has also decided that the general position of that small commercial operation is largely irrelevant to this proceeding. In addition, the Tribunal agrees with the point made by the applicant concerning the existing development plans as indicating gross floor area. Proposed condition (f) is unnecessary.
80 The parties have agreed that condition (g), which deals with certain technical aspects of walls, fences and gates should be deleted. The Tribunal agrees with the parties' views.
81 The respondent proposes the following condition (h), dealing with certain external fixtures:
"(h) all external fixtures, such as television antennas (of a non standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), [shall
- be] designed integrally with the building, and [are to] be located so as not to be visually obtrusive;"
82 The applicant does not see condition (h) as necessary, saying:
"The [a]pplicant objects to the condition as this [planning approval] application is for a change of use and does not propose any external fixtures. This is considered to be more appropriately placed as an advice note."
83 The Tribunal does not ordinarily issue "advice notes". See Empire Securities Pty Ltd and Ors and Western Australian Planning Commission [2005] WASAT 98 at [79].
84 The respondent's view is that:
" ... this [condition] is a standard condition that is applied to all residential development and given the residential zoning, previous residential approval and use and proximity to residences it is appropriate for similar standards to apply to this property/development."
85 The Tribunal entirely agrees with that view. Condition (h) will be a condition of approval.
86 The parties have agreed to the effect that proposed condition (i), which dealt with the subject land's windows and the like's interactivity with Barlee Street, is unnecessary in the circumstances. The Tribunal agrees with the parties and that condition will be deleted.
87 Condition (j) has been agreed between the parties as follows:
"(j) This approval is for an 'Office Building' only and should the applicant/owner wish to change that use, it shall be necessary to reapply to and obtain approval from the Town prior to commencement of the new use."
88 The Tribunal agrees with that condition.
89 Condition (k) has been agreed between the parties as follows:
"(k) One (1) class 1 or 2 bicycle parking facility shall be provided at a location convenient to the entrance of the approved development within twenty eight (28) days of notification of this Approval. Details of the design and
- layout of the bicycle parking facility shall be submitted and approved prior to installation of such facility;"
90 The parties have agreed to the deletion of miscellaneous conditions (l) and (m), and these conditions will go.
91 The Tribunal's final order will reflect this discussion.
Orders
92 For the reasons set out above, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision under review is set aside and in lieu thereof there will be a decision granting planning approval in the terms sought, subject to the following conditions:
(a) all signage that does not comply with the Town's Policy relating to Signs and Advertising shall be subject to a separate planning application, and all signage shall be subject to a Sign Licence application, being submitted and approved, prior to the erection of the signage;
(b) the hours of operation during which visitors can attend the premises shall be restricted to the following times: 8 am to 6 pm, Monday to Friday and 8 am to 1 pm on Saturday, inclusive;
(c) four car parking bays are to be available and used for car parking purposes at any one time;
(d) no street verge tree(s) shall be removed unless written approval has been received from the Town's Parks Services Section. Should such an approval be granted all costs associated with the removal and replacement shall be borne by the applicant's owner(s);
(e) a detailed landscaping plan, including a list of plants and the landscaping and reticulation of the Barlee Street verge adjacent to the subject property, shall be submitted to and approved by
- the Town. All such works shall be undertaken within twenty eight (28) days of notification of this Approval and maintained thereafter by the owner(s)/occupier(s);
- (f) all external fixtures, such as television antennas (of a non standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), [shall be] designed integrally with the building, and [are to] be located so as not to be visually obtrusive;
(g) this approval is for an "Office Building" only and should the applicant/owner wish to change that use, it shall be necessary to reapply to and obtain approval from the Town prior to commencement of the new use;
(h) one (1) class 1 or class 2 bicycle parking facility shall be provided at a location convenient to the entrance of the approved development within twenty eight (28) days of notification of this Approval. Details of the design and layout of the bicycle parking facility shall be submitted and approved prior to installation of such facility.
I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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