Meyer and City Of Mandurah
[2008] WASAT 51
•4 MARCH 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MEYER and CITY OF MANDURAH [2008] WASAT 51
MEMBER: MS M CONNOR (MEMBER)
HEARD: 5 DECEMBER 2007
DELIVERED : 4 MARCH 2008
FILE NO/S: DR 266 of 2007
BETWEEN: HERMANN MEYER
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town Planning - Development application - Change of use - Single house with approved consulting room attached to a house to "Medical Centre" - Orderly and proper planning - Amenity impacts - Character of the locality - Traffic
Legislation:
Peel Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Mandurah Town Planning Scheme No 3, cl 4.5.1, cl 7.1, cl 7.3, cl 7.5, cl 7.6.1, Table 5, Appendix 1
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Dr Herman Meyer applied to the State Administrative Tribunal for review of the City of Mandurah's decision to refuse planning approval for a medical centre on Lot 271 (No 191) Lakes Road, Greenfields.
The following three principal issues emerged for consideration in the review:
1)Whether the proposed medical centre would have an adverse effect on the amenity of the surrounding area.
2)Whether the proposed use and development of the land will result in undue and adverse traffic impacts.
3)Whether the application for the proposed medical centre is consistent with orderly and proper planning having regard to the provisions of the City of Mandurah Town Planning Scheme No 3.
The Tribunal in having regard to the matters set out in cl 7.5 of the City of Mandurah Town Planning Scheme No 3, determined that the proposed medical centre was not consistent with the order and proper planning for the locality and would have a significant adverse impact on the amenity and established character of the area. The application for review was dismissed and the decision of the respondent affirmed.
Introduction
Dr Hermann Meyer (applicant) lodged an application for planning consent with the City of Mandurah (respondent, Council or City) to use the existing dwelling on Lot 271 (No 191) Lakes Road, Greenfields (subject land) as a medical centre. Planning consent had previously been granted in 1993 for a "consulting room attached to a house" on the subject land, conditional upon the practising consultant residing at the premises.
The planning application, the subject of this review, was refused under delegated authority by the Manager Planning and Projects on 19 July 2007 for the following reasons:
"1.The proposal is contrary to clause 7.5.1 (j), (m), (p) and (x) of Town Planning Scheme No 3 as it would be detrimental to the quiet residential amenity of the occupiers of the nearby dwellings, by reason of noise and nuisance arising from increased activity and traffic generation.
Footnote:
Council is aware of a developer covenant that exists over the subject property restricting non-residential land uses and other aspects of development including fencing types. Council policy DES-03 relating to Restrictive Covenants allows the City to have due regard for Restrictive Covenants to which the City is not party to when they are known to exist. The restrictive convent in question creates an elevated expectation of amenity for residents.
2.The proposal is contrary to clause 4.5.1 of Town Planning Scheme No 3 as it outlines the purpose and intent of the Residential zone as 'to intend to promote a high quality of residential environment by maintaining the quality and character of existing residential areas and providing a range of residential densities and housing types through out the City.' The scarce nature of low density residential environments suggests that this alternative type of residential environment should be maintained.
3.The scale of the proposed use is incompatible with the existing character of the area.
4.The proposal is contrary to the orderly and proper planning of the locality, and will set a precedent for similar uses in the locality.
5.The boundary treatments are insufficient to mitigate the noise likely to be generated by a medical centre of this scale.
Footnote:
The type of fencing required to reduce the impact of the noise generated will not assist in meeting the purpose and intent of the Residential Zone in clause 4.5.1 of Town Planning Scheme No 3 and the restrictive covenant that applies to the property."
The applicant, on 3 August 2008, made application under s 252(1) of the Planning and Development Act 2005 (WA) to have the decision reviewed.
Subject land and locality
The subject land is more particularly described as Lot 271 Lakes Road, Greenfields, being the land comprised in Certificate of Title Vol 1853 Folio 183.
The subject land forms part of a low density residential area referred to as the "Country Roads Estate" and is bounded on three sides by existing low density residential development. Lakes Road is described as a local distributor road which provides an important connection between Gordon and Pinjarra Roads.
Land on the western side of Lakes Road is zoned "Residential" with a permitted density of R5, while land on the eastern side of Lakes Road, adjacent to the subject land, is zoned "Residential" R10. Land immediately to the north of the "Residential R10" zoning is zoned "Rural Residential".
There is an existing commercial area located approximately 1 kilometre from the subject land, situated on Minilya Parkway. The Murray Medical Specialist Centre is located within this area and accommodates a doctor's surgery, chemist, pathology lab and a physiotherapist clinic. The Peel Health Campus is located immediately south of the commercial area.
The proposal
The application seeks a change of use from "Single house" with an approved consulting room attached to a house to "Medical Centre".
The medical centre is proposed to include two doctors' rooms, three other consulting rooms, a treatment room, a pathology collection room, waiting room, staff areas, and associated toilets and facilities. It is intended that two full time medical practitioners would operate from the premises, as well as a maximum of two to three complementary health practitioners. It is envisaged that the allied health practitioners would utilise available space on a sessional, as required basis.
The construction works are confined to the existing building envelope with external works to provide landscaping and 19 additional car parking bays (total of 25 bays provided on-site). Eight of the proposed car parking bays are located on the western boundary of the property and the remainder are adjacent to the existing dwelling and within the front setback area of the subject land.
Planning framework
The subject land is zoned "Urban" in the Peel Region Scheme and "Residential" with a permitted density of R5 under the City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme).
The purpose and intent of the "Residential" zone is set out in cl 4.5.1 of the Scheme, which states:
"The Residential Zone is intended 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 permissibility of uses in the "Residential" zone and the relevant development standards are specified in "Zoning Table 5" (Table 5). It was common ground that the use of the land was considered to fall within the definition of "Medical Centre", which is defined in Appendix 1 - Interpretations of the Scheme as meaning:
"… premises, other than a hospital used by one or more health consultant(s) for the investigation or treatment of human injuries or ailments and for general outpatient care (including preventative care, diagnosis, medical and surgical treatment and counselling."
"Medical Centre" is classified as an "SA" in Table 5 and therefore the use may only be developed after Council has granted planning approval after giving notice in accordance with cl 7.3 of the Scheme. The proposed development was advertised in accordance with cl 7.3 and 40 submissions and one petition were received. Dr Meyer, at the hearing, also submitted a petition and three letters in support of the proposal.
The development standards set out in Table 5 relating to "Medical Centre" are:
•Minimum car parking - one per staff plus four per practitioner;
•Landscaping - 10% of site; and
•Other requirements - Location criteria may be specified through Council policy.
Clause 7.1 of the Scheme requires that all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case. Clause 7.6.1 of TPS 3 provides the authority for the Council to refuse or approve an application, with or without conditions. In considering applications for planning approval, regard is to be given to certain matters as set out in cl 7.5 of the Scheme. The pertinent matters relating to this application are as follows:
•The provisions of the Scheme (subclause (a));
•The requirement of orderly and proper planning (subclause (g));
•Any relevant submissions or objections received on the application (subclause (h));
•The character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development (subclause (m));
•The size and shape of the land to which that development application relates, the siting of any building or works there on and the area to be occupied by that development (subclause (n));
•The relationship of that development to development on adjoining land or on other land in the locality (subclause (p));
•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 (subclause (q));
•The amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system (subclause (r));
•Whether adequate provision has been made for the landscaping of that land to which that development application relates and whether any trees or other vegetation on the land should be preserved (subclause (u));
•The existing and likely future amenity of the neighbourhood (subclause (x));
•The public interest (subclause (y)); and
•Any other planning consideration which the Council considers relevant (subclause (z)).
Issues
The following three principal issues emerged for consideration in this review:
1)Whether the proposed medical centre would have an adverse effect on the amenity of the surrounding area.
2)Whether the proposed use and development of the land will result in undue and adverse traffic impacts.
3)Whether the application for the proposed medical centre is consistent with orderly and proper planning having regard to the provisions of TPS 3.
Initially the respondent identified noise as an issue and contended that noise produced from the vehicles utilising the medical centre would impact on owners of the adjoining properties, especially to the north and west, as there are insufficient measures in place to protect visual privacy and acoustic amenity. It appears that this issue fell away as the respondent did not agitate any evidence in regard to this issue.
The Tribunal will address each issue in turn.
Whether the proposed medical centre would have an adverse effect on the amenity of the surrounding area
The respondent contended that the proposed medical centre would have an adverse impact on the amenity of the surrounding area. The respondent explained that the subject land was located within the Country Roads Estate (Estate), which was described as an exclusively low density, single residential area that was well vegetated.
The respondent called Ms Karen Curwood, the owner of No 12 Redbank Rise, Country Roads Estate (located to the west and three properties north of the subject land), to give evidence about the character and setting of the locality and how she perceived the proposed development would impact on the amenity of the locality. Mrs Curwood provided photographs of the locality to assist in establishing the character of the area. Ms Curwood described the area as low density with a "semi-rural" quality, which she attributed to the large lot sizes, a treed environment, more native animals and birds, and open-style fencing. She submitted that there was a country feeling within the Estate and that the proposed development was out of character with the surrounding neighbourhood and did not meet the lifestyle expectations of residents in the locality. Ms Curwood considered the resultant increase in traffic generation, noise and risk to pedestrian safety as significant impacts that would adversely affect the amenity of the locality.
The respondent also referred the Tribunal to the 40 submissions and a petition it received, during the advertising period, objecting to the proposed development. The common reasons for objection to the development related to traffic and pedestrian safety, loss of lifestyle, commercial use that should be located in appropriately zoned areas and security.
Mr Meggitt, a town planning consultant called by the respondent to give evidence, considered that a medical centre of the scale proposed would be incompatible with residential nature and character of the locality.
Dr Meyer argued that the subject land was located on a busy road on the periphery of the Estate and that the subject land was not a part of the Estate as described by Ms Curwood. He contended that it is not the same locality. He considered that the many qualities as described by Ms Curwood were not reflective of the character of properties on Lakes Road, as these properties were subject to the impacts of a busy through road. He argued that the subject land was external to the Estate and that the use of the subject land as a medical centre would not adversely affect the amenity of the locality.
The Tribunal does not agree with Dr Meyer's assertion that the subject land does not form part of the Estate. Despite the fact that the subject land fronts onto Lakes Road, it clearly forms part of the wider locality described as the "Country Roads Estate". The character of the locality can be described as a low density residential environment that promotes a "country" atmosphere by the larger lot sizes, vegetation setting and open-style fencing.
The Tribunal acknowledges that the subject land has solid fencing along three of its boundaries. Furthermore, the Tribunal recognises that there are different degrees of amenity experienced by residents within the Estate and that the lots fronting onto Lakes Road will not have the same level of residential amenity as those lots fronting onto cul-de-sacs. However, all the lots on the western side of Lakes Road, with the exception of the subject land, are used solely for residential purposes and contribute to the character of the locality. There is a strong residential cohesion in the locality generally and within the immediate vicinity.
The scale and intensity of the proposed use is such that it can only be described as commercial in nature. It is considered that a medical centre of this scale and in this location will be a significant commercial intrusion into a cohesive low density residential area. The proposed use is not considered to be compatible with the character of the area and will have a detrimental impact on the residential amenity of the locality.
Whether the proposed use and development of the land will result in undue and adverse traffic impacts
The respondent contended that there were traffic safety concerns in regard to the location of the access point in relation to the existing road network.
Mr Rodney Ding, a consultant transport planner and traffic engineer, was called by the respondent to give evidence. Mr Ding undertook a site view and reviewed the current layout of the roadway in the vicinity of the proposed development. Mr Ding observed the following:
•There is currently a single crossover of approximately 5.5 metres width that provides access to the existing medical facility. This crossover is proposed to continue to be utilised by the proposed medical centre.
•Lakes Road is approximately 10 metres wide and is subject to a speed limit of 70 kilometres per hour (km/h).
•Approximately 50 metres south of the proposed development, there is a bend in Lakes Road that has an advisory speed limit of 60km/h.
•There is a footpath on the western side of Lakes Road that crosses the crossover of the proposed development. School children were observed walking along the footpath.
Mr Ding also made the following assertions:
•At present approximately 7150 vehicles per day utilise Lakes Road, some of which are semi trailers. The expected traffic volumes were likely to increase up to 13,000 vehicles per day with the extension of the Kwinana Freeway and the construction of the new Perth-Bunbury Highway.
•Current traffic flow to and from the current centre is approximately 10 vehicle movements per hour, consisting of five movements in and five movements out.
•The expected traffic flow was likely to be up to 40 vehicles per hour consisting of 20 movements in and 20 movements out. It was acknowledged by Mr Ding during the hearing that if the medical centre included allied health practitioners, as described by Dr Meyer, the expected traffic flow could be reduced to 26 vehicles per hour.
•There is approximately 500 metre sight distance from the crossover to the north along Lakes Road and approximately 90 metre sight distance from the crossover to the south along Lakes Road.
Mr Ding contended that the crossover should comply with the sight distances provided for an intersection (as set out in Table 5.3 from the Austroads' publication Guide to Traffic Engineering Practice, Part 5, Intersections at Grade 9 (Austroads' Guide)), even with a reduced expected traffic flow. He explained that it was general practice to apply such criteria to a commercial use in this type of situation. Based on Table 5.3 of the Austroads' Guide, a sight distance of 130 metres should be provided for a design speed of 70 km/h. He concluded that sufficient sight distance can be achieved from the north but due to the curved alignment of Lakes Road, the sight distance to the south was some 40 metres less than the minimum 130 metres that should be provided. Mr Ding was of the opinion that such a shortfall "may lead to situations where vehicles [negotiating] the bend travelling south to north along Lakes Road, could collide with a vehicle exiting the [development], turning either left or right". He also considered the situation would be exacerbated by the larger vehicles using Lakes Road, as these vehicles require more than the minimum 130 metre sight distance to stop.
Mr Ding also raised concerns regarding the likely impediment to pedestrians resulting from vehicles waiting to turn either left or right into Lakes Road. He also raised the possibility of increased accidents on Lakes Road as vehicles entering the development from the south may have to stop on Lakes Road to give way to pedestrians.
Dr Meyer did not dispute Mr Ding's measurements relating to the sight distances in either direction. He argued that the subject land had been continuously used as a doctors surgery for the past 14 years without incident and raised the possibility that the sight distance to the south may be increased by the removal of a small wall located on the subject land and pruning of vegetation on neighbouring properties. Mr Ding agreed that such works may increase the sight distance. However, no evidence was produced to show what affect the removal of such obstacles would have on the sight distance, whether it would meet the applicable criteria and whether the owners of the adjoining properties were amenable to such a proposal. Without such evidence, the Tribunal can not be satisfied that the sight distance to the south is sufficient to allow for safe egress from the subject land onto Lakes Road. The Tribunal, is therefore, persuaded by the evidence given by Mr Ding that the sight distance to the south along Lakes Road is deficient and vehicles will have insufficient sight distance to enter the traffic stream safely. On this evidence, the Tribunal finds that the proposed use and development of the land for a medical centre will result in undue and adverse traffic impacts.
Whether the application for the proposed medical centre is consistent with orderly and proper planning having regard to the provisions of TPS 3
The purpose and intent of the "Residential" zone, as set out in cl 4.5.1 of the Scheme, is intended 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 Scheme does provide for a range of residential densities, and this can be observed in the East Mandurah area where a range residential densities, from R2.5 to R40, have been provided for. The subject land is located within an area that has been developed at a R5 density coding.
Although a "Medical Centre" is classified as an "SA" use in the "Residential" zone, Table 5 does not differentiate between densities, and as such, in determining whether a medical centre is an appropriate use in a particular residential area, the purpose and intent of the zone is a very relevant consideration. The Scheme, through Table 5, recognises that locational criteria for medical centres, by way of policy, may be an appropriate mechanism to guide the orderly and proper planning of medical centres in residential areas. The Tribunal was informed that the respondent does not have such a policy, but is currently in the process of formulating one.
Clause 7.5 of the Scheme also sets out certain matters that are required to be taken into consideration in determining an application for approval. The matters of particular relevance in this application are set out in [19].
The respondent contended that the scale and intensity of the commercial use should be commensurate with the density of the residential area. It was submitted that perhaps a small scale operation, such as the one already approved for the subject land, would be appropriate within an R5 density coded area. Mr Meggitt considered that the proposed medical centre was of a scale that was incompatible with the residential nature and character of the locality and that it would be more appropriately located in a commercial area, such as that adjoining the Peel Health Campus.
Dr Meyer submitted that a doctor's surgery has been in continuous use for 14 years on the subject land and for a number of years it has been operating without a doctor residing on the premises. The issue of non‑compliance with the conditions of the current planning approval is not an issue before the Tribunal and therefore the Tribunal makes no findings on this matter.
Dr Meyer explained that it is his intention to provide a training medical practice involving a maximum of two full‑time doctors that also provided a range of services offered on a sessional basis by allied health professionals. He submitted that the residents most likely to be affected by the proposed development, that being the owners to the north and south of the subject land and one across the road, had not objected to the development and had signed a statement of agreement with respect to the planned medical centre. He conceded that objections had been received by the respondent from owners of land immediately adjoining at the rear and diagonally adjacent to the subject land.
Dr Meyer contended that the proposed medical centre had sufficient car parking and any noise impacts would be mitigated by the existing solid boundary fencing. He did not consider the scale of the development to be a "big medical centre" in comparison with others in the area. He further argued that the visual appearance of the property would remain unchanged from Lakes Road and the residential character of the locality would not be adversely affected.
It is clear from the density coding imposed on the Estate that the character of the area is intended to be a low density residential environment. One of the objectives of the "Residential" zone is to promote a high quality residential environment by maintaining the quality and character of existing residential area, therefore, it is essential to ensure that scale of any non-residential use is such that it does not undermine the established residential setting. The Tribunal has made findings on the character of the locality as set out above.
In this instance, the Tribunal is persuaded by the respondent's argument and finds that the scale of the proposed medical centre is incompatible with the low density residential nature and character of the locality and as such, is contrary to the intent and purpose of the "Residential" zone. The Tribunal finds that the proposed medical centre is not consistent with the orderly and proper planning of the locality as it represents an undesirable commercial intrusion that would detract from the quality and character of the existing low density residential area.
Conclusion
The Tribunal in having regard to the matters set out in cl 7.5 of TPS 3, and more particularly for the above reasons, finds that the proposed medical centre is not consistent with the order and proper planning for the locality, and will have a significant adverse impact on the amenity and established character of the area.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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