O'NEILL and CITY OF JOONDALUP
[2021] WASAT 107
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: O'NEILL and CITY OF JOONDALUP [2021] WASAT 107
MEMBER: MR R POVEY, MEMBER
HEARD: 11, 12 AND 13 MAY 2021
DELIVERED : 11 AUGUST 2021
FILE NO/S: DR 143 of 2020
BETWEEN: NATASHA O'NEILL
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Child care premises - Residential zone - Residential uses adjoining site - Application of local planning policy - Car parking design - Car parking shortfall - Application of cl 78H Notice of Exemption - Application of cl 77D - Traffic and streetscape amenity issues - Impact on amenity of locality - Application of bushfire State planning policy
Legislation:
Bush Fires Act 1954 (WA)
City of Joondalup Local Planning Scheme No 3, cl 9, cl 16(2), cl 18(2)
Emergency Management Act 2005 (WA)
Evidence Act 1906 (WA)
Fire Brigades Act 1942 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(2), cl 77D, cl 77D(b)(i)
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1)
Planning Regulations Amendment Regulations 2020 (WA)
State Administrative Tribunal Act 2005 (WA), s 17s 18, s 27, s 27(1), s 29(3), s 31, s 31(1), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 7.3 - Residential Design Codes, cl 5.3.5
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Algeri (planning advocate) |
| Respondent | : | Mr A Lohman (planning advocate) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Boynton and Western Australian Planning Commission [2018] WASAT 60
Bunnings Group Limited and Presiding Member of the Metro North West Joint Development Assessment Panel [2019] WASAT 121
Cassidy and City of Subiaco [2011] WASAT 63
Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Hunter & Anor and City of Rockingham [2008] WASAT 28
MacKenzie and City of Stirling, [2015] WASAT 144
Randall and Town of Vincent [2005] WASAT 129
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This proceeding relates to a change of use and building modification to enable a child care premises at Lot 47 (No 23) Currambine Boulevard, Currambine (subject site). The proposed development will accommodate 20 children with two full time staff and one casual staff and operate from 7 am to 6 pm for 50 weeks of the year (proposed development).
The City of Joondalup (respondent or City) refused the development application at the meeting of the respondent's Council (Council) initially on 23 June 2020 and on reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), reiterated that decision on 17 November 2020 with additional reasons.
This matter was heard over three days in May 2021. At the commencement of the final hearing on 11 May 2021, I inspected the subject site and the surrounding streets together with the parties. Thefinal hearing centred on the questions of traffic, car parking, access and egress, safety, amenity and bushfire planning.
For the reasons set out in this decision, the application for review should be dismissed. I have reached this decision not on the basis of a single reason alone. Rather, I consider the cumulative impacts of the car parking design, access and egress arrangements and bushfire planning are such that the proposed development is ill suited to the subject site and should be refused. In the context of a small residential lot, the scale of the proposed development is beyond what might reasonably be accommodated and is therefore incompatible with thelocality.
Procedural history
On 25 March 2019, Ms Natasha O'Neill (applicant) applied to the respondent for development approval for a change of use from a single house to a 'child care premises', including building modifications and signage on the subject site.
The respondent, in accordance with its Planning Consultation Local Planning Policy, advertised the proposal to owners and occupiers of the adjacent properties for a period of 14 days, closing on 5 July 2019. Consultation included letters to 19 owners and occupiers of properties adjacent to the subject site and along Currambine Boulevard and Doncaster Square. A total of three submissions were received during the advertising period, with two raising objections and one providing support. The main concerns raised in the objections were lack of car parking and additional traffic, though the traffic concern generally related to Currambine Boulevard.[1]
[1] Exhibit 6, paras 89-91.
The Council considered the application on 17 September 2019 and resolved to refer the matter back to the respondent's Chief Executive Officer (CEO) to allow the applicant to consider the issues and concerns raised in the City's officers' report and specifically to seek advice on traffic and parking matters.
A traffic impact report was submitted to the respondent in December2019.[2] At this time the applicant also provided a revised car parking layout, together with additional submissions of support from residents in the area.
[2] Exhibit 2, pages 105-110.
The Council considered the application again on 17 March 2020 and resolved to refer the application back to the CEO to allow the applicant to consider the issues raised in the City's officers' report.
On 16 March 2020, a State of Emergency Declaration was made in relation to the State of Western Australia associated with the COVID19 pandemic.[3] Changes to the Planning and Development (Local Planning Schemes) Regulations2015 (WA) (LPS Regulations) were introduced to allow the Minister for Planning (Minister) to issue notices to exempt some planning requirements to respond to and recover from an emergency declared under the Emergency Management Act 2005 (WA).
[3] Exhibit 4, page 1.
On 8 April 2020, the Clause 78H Notice of Exemption from Planning Requirements During State Of Emergency (Notice) made under the Deemed Provisions of the LPS Regulations was issued in response to the COVID-19 pandemic.[4] The Notice was issued to provide specific guidance to proponents and local governments on a range of temporary exemptions from certain planning requirements and approvals.
[4] Exhibit 2, pages 402-411.
A review of the Notice was subsequently undertaken, and the Notice was amended, amongst other matters, to clarify the intent of conditions relating to exemptions. Clause 78H Notice of Exemption from Planning Requirements During State Of Emergency Clause 78H(6)(a) Amended Notice (Amended Notice) came into effect on 30 April2020.[5]
[5] Exhibit 2, pages 412-425.
On 12 May 2020, the applicant provided a revised proposed development to the respondent. The revised proposed development reduced the number of car parking bays to be provided to two car parking bays. The applicant stated she wished to rely on the Notice to exempt the proposed development from the requirement to provide car parking facilities, on the basis that the shortfall of car parking bays at the subject site was 10 parking bays or less. The applicant also amended the application to seek a temporary approval until 1August2023, according with the applicant's understanding of the temporary nature of the car parking exemption available under theNotice.
The Council considered the application on 23 June 2020 and refused the application, initially for two reasons, being concerns relating to traffic and car parking and bushfire access.[6]
[6] Exhibit 2, pages 412-425.
On 6 July 2020, the applicant sought review of the respondent's decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
During this proceeding, the applicant was granted leave to provide additional information and amended plans. On 5 October 2020 the applicant provided amended plans and additional information. Theamended plans show four on-site car parking bays for use by customers, to be accessed by a widened crossover from MistralMeander. Additional information included a parking management plan and confirmation that the application is for a time limited approval, being three years from the date of approval.
On 16 November 2020, the applicant provided, directly to the elected Council members of the respondent, a Bushfire Management Plan (BMP), a Bushfire Emergency Plan (BEP) and a Bushfire Emergency Information Poster for the proposed development, prepared by Bushfire Prone. This information was not provided to the respondent's officers at this time.
On 17 November 2020, the Council considered the proposed development pursuant to s 31(1) of the SAT Act. At the meeting of 17November 2020, the Council affirmed the original decision to refuse the application and varied the reasons for refusal. The respondent's reasons for refusal are:[7]
[7] Exhibit 1, para 44.
1.1In accordance with clause 67(j) of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the development is not compatible with the objectives of the Residential zone under Local Planning Scheme No. 3 and the Child Care Premises Local Planning Policy as:
1.1The non-residential use is not compatible with and complementary to the existing residential development and will have an adverse impact on the amenity of the surrounding residential development due to traffic and car parking;
2.In accordance with clause 67(q) of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the proposed development is not considered to meet State Planning Policy 3.7 Planning in Bushfire Prone Areas as:
2.1Mistral Meander is not constructed to the standards required under the Guidelines for Planning in Bushfire Prone Areas to support the intensification of the land use;
3.In accordance with clause 67(g) of schedule 2 of the Planning and Development (Local Planning Scheme) Regulations 2015, the proposed development does not comply with the provisions of the Respondent's Child Care Premises Local Planning Policy as the proposed development is not considered to provide:
3.1Safe and functional access to on-site car parking areas;
4.In accordance with clause 67(m) of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the development is not compatible with its setting and relationship to other development /land within the locality as:
4.1The insufficient provision of on-site car parking will result in an undue negative impact on the amenity of the immediate locality and adjoining properties.
On 1 December 2020, the applicant provided a copy of the revised BMP and BEP to the respondent.
The proposed development considered by the Council on 17 November 2020, along with the revised BMP and the BEP, forms the proposed development, the subject of this review.
The Tribunal's review jurisdiction
By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[8]
[8] Section 18, SAT Act.
The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[9]
[9] Section 27, SAT Act.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), therules of evidence, or any practices and procedures of courts of record[10] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[11]
[10] Section 32(2)(a), SAT Act.
[11] Section 32(1), SAT Act.
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[12] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[13] Section 29(3) of the SATAct confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
[12] Section 27(1), SAT Act.
[13] Section 32(2)(b), SAT Act.
The applicant is seeking orders from the Tribunal to set aside the respondent's decision made on 17 November 2020 and grant approval for the change of use from a single house to a 'child care premises', including building modifications and signage.
Subject site and context
The subject site can be described more particularly as follows:
a)has a total area of 340m2;
b)is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and Residential R80 under the City of Joondalup Local Planning Scheme No 3 (LPS 3);
c)contains a single storey building, constructed in 1996, which has been used as a residential dwelling;
d)has two street frontages; to the north it is bounded by Mistral Meander, currently a no through road, and to the south it is bounded by Currambine Boulevard;
e)vehicle access to the site is provided from Mistral Meander by a 5.5 metre wide crossover;
f) a 9 metre wide public access way adjoins the subject site to the west, providing pedestrian access between Mistral Meander and Currambine Boulevard;
g)a single residential dwelling adjoins the subject site to the east;
h)a 6.27 hectare vacant site at Lot 1 (No 16), SunlanderDrive, Currambine is located to the north, on the opposite side of, and accessed by Mistral Meander;
i)is located in a bushfire prone area due to the vegetation on the vacant site to the north, with a (Bushfire Attack Level) BAL of 29;
j)Doncaster Park, (8,000m2 of public open space), is located to the south east of the site;
k)Currambine train station is located within 400 metres of the subject site, directly to the east along Currambine Boulevard;
l)the lots in the immediate vicinity of the subject site, while zoned Residential R80, are generally developed with single storey single houses; and
m)the lots between Sunlander Drive and the Currambine train station, are also zoned Residential R80, and are generally developed with multiple dwellings of three storeys in height.
Proposed development
The proposed development is for a change of use of the subject site from a single house to a 'child care premises'. The change of use also involves building works and signage. The child care premises is proposed to:
a)provide child care services for up to 20 children aged between three and five years;
b)operate from Monday to Friday from 7 am to 6 pm for 50 weeks of the year, with closure over the two week Christmas and New Year period;
c)operate with two full time staff and one casual employee who will work between 12 pm and 2 pm;
d)provide structured learning comparable to a kindergarten, including outdoor play sessions of between 45 minutes and one hour in duration;
e)provide four car parking bays on the site, accessed from Mistral Meander by the crossover which is to be widened to 9.7 metres;
f)have pedestrian access via a gate adjacent to the on-site car parking bays; and
g)provide a new wall sign of 2.25m2 fronting Currambine Boulevard.
The parking management plan[14] which forms part of the proposed development includes that one full time staff member will commit to access the site by public transport and the other full time staff member will park off site in surrounding streets using on-street public car parking. The casual employee will park on site. The parking management plan also includes the active management of the four car parking bays on site during pick-up and drop-off times requiring the active allocation of 30 minute timeslots for access to these parking bays by individual customers.
[14] Exhibit 2, pages 209-233.
The applicant is seeking a time limited approval for a period of three years from the date of commencement of the child care use. During the course of the hearing the applicant made a further submission seeking to amend the time for commencement of the three year approval period to allow a period of up to two years for commencement of the temporary use from the date of approval.[15]
The planning framework
[15] ts 257 and 263, 13 May 2021.
The relevant planning framework, which I have considered in determining the application, is attached to this decision as Annexure A and includes references to the following:
a)LPS Regulations
b)MRS
c)LPS 3
d)State Planning Policy 3.7 – Planning in Bushfire Prone Areas (SPP 3.7)
e)Planning Bulletin 72/2009 (PB 72/2009)
f)Child Care Premises Local Planning Policy (CCPLPP)
Amendments to the LPS Regulations Sch 2 (Deemed Provisions) to introduce cl 77D (77D) came into effect on 1 July 2021, after the hearing. The parties were aware of the timing of its introduction and provided submissions and evidence as to its relevance.
The applicant submits PB 72/2009 should not be given weight in this matter as the Western Australia Planning Commission in November 2017 provided the following advice:[16]
Planning Bulletins will be limited to uses such as providing advice on recent changes to legislation, planning practice and subdivision and development control. Generally speaking, it's anticipated that Planning Bulletins will only need to exist for a maximum 12 months to provide sufficient time for the relevant change to be embedded within the planning system.
[16] Exhibit 10, para 22.
In respect to the correct consideration of PB 72/2009 in this matter, the respondent has the CCPLPP, first adopted in June 1999, and later amended at various times. The respondent's operative LPS 3, gazetted 23 October 2018, provides discretion to approve a child care premises in the Residential zone. The respondent considered PB 72/2009 when formulating and amending these documents which form relevant parts of the local planning framework in this matter. Therefore, in making my decision, greater weight is given to the local planning framework and minimal weight is given to PB 72/2009.
Issues
The parties agreed the following seven issues for determination at the commencement of the hearing:
1)Whether the proposed child care premises use is appropriate by way of its compatibility with current and future residential uses in the Residential R80 zone having regard to:
a)the car parking demand that will be generated by the use and the number of car parking bays able to be provided on the subject site; and
b)consideration of the operation of the Amended Notice issued by the Minister on 30 April 2020 to the extent which the proposed development seeks to rely on the Minister's Notice for the shortfall of on-site car parking.
2)Whether the proposed child care premises use is appropriate in terms of its compatibility with current and future residential uses in the Residential R80 zone having regard to the traffic generated by the proposal.
3)Whether the proposed child care premises use is appropriate for the subject site having regard to the design of the car parking bays provided and their safety and utility.
4)Whether the proposed child care premises use is appropriate in the Residential R80 zone having regard to the proposed design and streetscape outcomes associated with the proposed vehicular crossover and on-site parking arrangement.
5)Whether the proposed child care premises use is appropriate having regard to the requirements of SPP 3.7, given that the proposal is for a vulnerable land use in an area of moderate bushfire risk.
6)Whether the proposed child care premises complies with the CCPLPP in relation to location, siting and an adverse impact on the amenity of the locality.
7)Whether the extent of the modifications proposed to the existing building mean that the altered building will not be able to be used as a single dwelling in the future.
Issue 1(b) and Issue 7 were identified by the Tribunal at the commencement of the final hearing. The parties agreed that submissions and evidence was able to be provided on these issues at the hearing.
I will address Issue 1(b) first and then address each of the remaining issues in turn.
The conduct of the hearing and expert evidence
The proceeding was heard on 11, 12 and 13 May 2021 with the parties' representatives and all expert witnesses attending the Tribunal in person. In this proceeding I heard oral evidence from six expert witnesses:
a)Mr Michael Scott (for the applicant) and Mr Daniel Panikar (for the respondent) on bushfire issues (bushfire witnesses);
b)Mr Sam Laybutt (for the applicant) and Mr Paul Nguyen (for the respondent) on traffic, parking and road safety (traffic witnesses); and
c)Mr David Maiorana (for the applicant) and Mr Jeremy Thompson (for the respondent) on the planning issues (planning witnesses).
Subject site view and locality
On 11 May 2021, prior to the commencement of the final hearing, together with the parties and their expert witnesses, I viewed the subject site and the relevant locality. We viewed the subject site from Mistral Meander, the adjoining pedestrian access way and from Currambine Boulevard. We entered Doncaster Park and viewed the location of the proposed bushfire refuge. We walked the immediate locality including along Currambine Boulevard, Paddington Avenue, viewing the Currambine train station and carpark, Citadel Way, Sunlander Drive and Mistral Meander, for its length. We viewed the differing built form in the locality including the single storey, single houses in the immediate area of the subject site and the three storey apartments located between Sunlander Drive and the Currambine train station. We also viewed the extent of the road pavement at the cul-de-sac head of Mistral Meander and the fenced vacant, but vegetated, land opposite the subject site to the north, Lot 1 Sunlander Drive, Currambine.
It was agreed by the parties the relevant 'locality' for the purposes of the question of amenity under cl 67(2) of the Deemed Provisions corresponds with the land observed during the view, and in particular the immediate locality surrounding the subject site in Currambine Boulevard and Mistral Meander.
Issue 1 - Whether the proposed child care premises use is appropriate by way of its compatibility with current and future residential uses in the Residential R80 zone having regard to:
b) consideration of the operation of the Amended Notice to the extent which the proposed development seeks to rely on the Amended Notice for the shortfall of on-site car parking
Contentions - Issue 1(b)
It is contended by the respondent that by virtue of explanatory condition 20 of the Amended Notice, cl 5.1 can only operate to exempt scheme requirements for changes of use sought if they are of a use and in a zone contained in cl 1.2 and cl 1.3. As this application is not for a change of use contained in cl 1.2 or cl 1.3, it is contended the Amended Notice cannot apply.[17] The respondent further contends that if the Tribunal finds the Amended Notice does apply, the period of an approval should be limited to the period of the operation of the Amended Notice.[18]
Consideration of Issue 1(b)
[17] Exhibit 1, para 74.
[18] ts 258, 13 May 2021.
Issue 1(b) deals with the Amended Notice to the extent to which the proposed development seeks to rely on this Amended Notice for the shortfall of on-site car parking bays. In this regard, the applicant seeks to rely on the Amended Notice, notwithstanding the period of the exemption provided by the Amended Notice bears no alignment with the temporary period of the approval being sought by the applicant. The argument simply put by the applicant's representative is the applicant is entitled to rely on the exemption from car parking requirements in Schedule 5 of the Amended Notice because it is currently there.[19]
[19] ts 365, 13 May 2021.
The Notice was first put in place on 8 April 2020, and subsequently amended on 30 April 2020, for the purpose of exempting certain planning requirements identified in the Notice and the attached schedules for 'the purpose of facilitating response to, or recovery from, the emergency occasioned by the COVID-19 pandemic'.[20]
[20] Exhibit 2, pages 412-425.
I am required to consider the operation of the Amended Notice to the extent which the proposed development seeks to rely on the provisions of the Amended Notice, in this case in respect to the shortfall of car parking bays arising from the requirements of the CCPLPP. The Amended Notice remains in place at the time of this decision.
Mr Thompson's evidence is that the Amended Notice cannot be used for the following reasons:[21]
1)Explanatory condition 20 of the Amended Notice identifies specific land uses that cl 5.1 applies to, being those within cl 1.2 and cl 1.3 of the Amended Notice. A Child Care Premises is not identified as one of the land uses.
2)Whilst agreeing that there may have been a clearer way to articulate the exemption, it does not negate or override the wording of explanatory condition 20.
[21] Exhibit 6, para 59.
Mr Thompson's further evidence is that should it be deemed the exemption under the Amended Notice is in place, other considerations such as the appropriateness of the land use are still required to be considered.[22]
[22] Exhibit 6, para 60.
Mr Maiorana's evidence relating to the Amended Notice is:[23]
That any calculated shortfall in parking provision is currently waived under the Notice of Exemption but this is only applicable to 30 July 2023 (noting an exemption under clause 5.1 will expire 90 days after the date upon which the State of Emergency Declaration ceases to have effect on 1 May 2023). Should the proposal be approved by the Tribunal, this potentially leaves a 'gap' of approximately one year before the expiry of the 3 year approval whereby the exemptions no longer apply. In a practical sense, there will be no increased burden or impact on the surrounding community after 30 July 2023, particularly when the approval would potentially be set to expire in a period of approximately 12 months after this time.
[23] Exhibit 14, para 142ii.
However, under crossexamination by the respondent's representative, Mr Maiorana conceded that while the Amended Notice expires on 1 May 2023, the exemption, upon which the applicant relies for the car parking shortfall, will expire 90 days after the date which the State of Emergency Declaration ceases to have effect or is revoked, not 90 days from the date of the expiration of the Amended Notice itself. Mr Maiorana agreed the current date (at the time of the hearing) upon which the State of Emergency Declaration ceases is 21 May 2021.[24]
[24] ts 247, 12 May 2021.
Mr Maiorana and Mr Thompson, under cross-examination by the Tribunal, confirmed that, while they both had experience dealing with the operation of other parts of the Amended Notice with other applications, neither had experience dealing with Schedule 5 and cl 5.1 of the Amended Notice other than in this matter.[25]
[25] ts 248-249, 12 May 2021.
Before I discuss the application of the Amended Notice, I make the following preliminary observations. The fact that the Amended Notice is designed to provide temporary relief from certain planning requirements during the COVID-19 pandemic and is not intended to be relied upon for ongoing relief of Scheme requirements has informed my approach to this aspect of the decision. The applicant's reliance on the Amended Notice is ultimately of little persuasive assistance in arriving at the correct and preferrable decision in this case. This is because I am required to consider whether the change of use sought, albeit itself for a temporary period, should be granted taking into account all the relevant planning factors set out in the operative planning framework. The relevant planning factors do not only relate to a shortfall in the provision of car parking bays and the period of operation of the Amended Notice does not align with the temporary period of development approval sought by the applicant.
Further, the applicant's reliance on the Amended Notice as an argument to support a car parking bay shortfall is potentially counterproductive. This is because the Amended Notice has the effect in this case, if the proposed development is approved, of exempting the approval from the requirement to provide car parking at all for the period the Amended Notice operates. I note however, this is not the applicant's intent or submission, but it is a concern Mr Thompson identifies.[26] I will return to this later at [60].
[26] Exhibit 6, para 60
The relevant provisions of the Amended Notice in this case are contained in Schedule 5, cl 5.1. This clause provides:
Schedule 5 – Exemptions from other requirements
Column 1
Requirements
Column 2
Schemes
Column 3 -
Direct Conditions
Column 4 –
Discretion To
5.1 Where premises are approved for use, or in relation to any application for development approval, proponents are exempted from a requirement to provide car parking facilities.
All local planning schemes.
1. Provided that this exemption only applies to:
a) non-residential development; and
b) where the proponent provides less than the number of parking bays required for the use in question, and the shortfall is 10 parking bays or less.
2. An exemption under this clause will expire 90 days after the date upon which the State of Emergency Declaration ceases to have effect or is revoked.
Proponents
On 30 April 2020 the Notice was amended and, relevant to this matter, explanatory condition 20 was added. This explanatory condition explains the operation of cl 5.1 as follows:
Clause 5.1, concerning exempting car parking requirements, overrides any specific requirements as set out in a scheme, policy or other source, as may be applicable for a proponent seeking a change of use of land pursuant to clauses 1.2 and 1.3 of this Notice. That is, clauses 1.2 and 1.3 permit car parking bays to be constructed, if either required or desirable, while cl 5.1 regulates where such construction is in fact required.
Clause 1.2 provides:
Column 1
Requirements
Column 2
Schemes
Column 3 -
Direct Conditions
Column 4 –
Discretion To
1.2 Proponents are exempted from the requirement to obtain development approval for the following uses and temporary works associated with these:
i. shop;
ii. restaurant/café;
iii. convenience store (excluding those selling petroleum products);
iv. consulting rooms;
v. office.
All local planning schemes.
1. Provided that:
a) the land to be used is located in a commercial, centre and/or mixed use zone[.]
Proponents
Clause 1.3 also provides:
Column 1
Requirements
Column 2
Schemes
Column 3 -
Direct Conditions
Column 4 –
Discretion To
1.2 Proponents are exempted from the requirement to obtain development approval for the following uses and works associated with these:
i. industry;
ii. industry-light;
iii. trade supplies;
iv. warehouse/storage;
v. transport depot.
All local planning schemes.
1. Provided that:
a) the land to be used is located in an industrial zone[.]
Proponents
Explanatory condition 1 of the Amended Notice states:
In this Notice a generous, broad interpretation is to be given to terms.
The Minister's declaration in the Amended Notice, at B, states:
DECLARE both the direct conditions and explanatory conditions form part of this Notice, except where there is an inconsistency, in which case the direct conditions prevail over the explanatory conditions.
The applicant's submission is that explanatory condition 20 does not operate to limit cl 5.1 and the explanatory condition 20 can only be considered advisory in nature.[27] The applicant's further submission is that notwithstanding the operation of the Amended Notice, an approval should not be time limited to the operation of Amended Notice and the car parking provision shortfall should be considered on its planning merits.[28]
[27] Exhibit 10, para 30.
[28] ts 364-365, 13 May 2021.
The correct operation of the Amended Notice, in this case, is that explanatory condition 20 does not operate to limit the scope of cl 5.1 to changes of use that are contained in cl 1.2 and cl 1.3. It is clear from the words used in explanatory condition 20, 'as may be applicable for a proponent seeking a change of use pursuant to clauses 1.2 and 1.3 of this Notice', does not limit cl 5.1 from applying to other types of change of use applications which are not specified in cl 1.2 or cl 1.3. It is necessary then to consider whether the proposed development falls within direct condition 1(a) and 1(b) of cl 5.1. In this case the change of use is for non-residential development under LPS 3, being a child care premises, satisfying direct condition 1(a). Direct condition 1(b) is also satisfied as the applicant proposes to provide less than the number of car parking bays required for the use in question, and the shortfall is 10 car parking bays or less, being three car parking bays as stated by the applicant or four compliant car parking bays as contended by the respondent.
The period beyond which the Amended Notice will be operative, at the time of this decision, is unknown. During the COVID-19 pandemic, extensions have been granted to the State of Emergency as has been necessary. However, the period for each extension is generally short, reflecting the close monitoring and management of the emergency. In this case, under cl 5.1, the Amended Notice will expire 90 days after the date which the State of Emergency Declaration ceases to have effect or is revoked. The applicant does not propose changes to the proposed development should the Amended Notice cease to have effect or is revoked.
I return now to the concern that if the proposed development is approved then the Amended Notice will exempt the applicant from having to provide any car parking bays for the period the Amended Notice is in operation. While this is the case, this is not the applicant's intent or submission. In considering this, the respondent did not advance this scenario as a contention and did not provide evidence on planning considerations that may arise. I am satisfied that, should the proposed development be approved, the applicant will provide the parking on-site as shown in the application and manage the car parking and access in line with the parking management plan. The applicant does not rely on the Amended Notice to the full extent of exempting the application from providing any car parking bays on the site.
Findings on Issue 1(b)
I find for the reasons outlined in the above consideration that the Amended Notice does apply in this case. However, the Amended Notice can only be relied upon for the temporary period it remains in place.
I accept the applicant's submission that where the Amended Notice can be used in a change of use, it is a matter of discretion for the applicant and does not rely on planning considerations. However, in this case I find there are planning considerations other than the shortfall of car parking, which must also be satisfied in the exercise of discretion to grant approval for the proposed development. I am not persuaded that the temporary availability of the Amended Notice itself gives weight to the exercise of discretion to approve the proposed development.
The three year period of approval being sought by the applicant does not align with the period of operation of the Amended Notice. I accept the applicant's strongly put closing submission that if her reliance on the Amended Notice gives rise to a time limited approval confined to the temporary period of the Amended Notice, this would be tantamount to a refusal of the proposed development.[29]
[29] ts 257, 13 May 2021.
In making this finding, I accept the applicant relies on the Amended Notice only for the extent of the car parking shortfall and intends to provide and manage the car parking provision as detailed in the parking management plan.
Therefore, the I find the correct approach must be to determine the car parking shortfall and the proposed development, which seeks approval for a three year period, on its planning merits.
Issue 1 - Whether the proposed child care premises use is appropriate by way of its compatibility with current and future residential uses in the Residential R80 zone having regard to:
a) the car parking demand that will be generated by the use and the number of car parking bays able to be provided on the subject site
Contentions - Issue 1(a)
The respondent contends that, as the CCPLPP requires seven on-site car parking bays to be provided for the proposed development and that only three car bays can be provided on site, a shortfall of four car parking bays arises.[30]
[30] Exhibit 1, para 77.
It is also contended that the parking management plan proposed to address the car parking shortfall is not practical, appropriate, implementable, or readily enforceable and that a failure of these measures will have an unacceptable impact on the amenity of the locality.[31]
77D of the Deemed Provisions
[31] Exhibit 1, para 78.
77D of the Deemed Provisions, operational from 1 July 2021, is a relevant consideration. As noted earlier, the parties are aware of the timing of the introduction of 77D and provided submissions and evidence as to its relevance.
I am required to give due regard to this provision in the exercise of discretion in respect to car parking provisions where the minimum onsite parking requirements is not met.
The provisions of cl 77D are:
(1)The local government may -
(a)vary a minimum on-site parking requirement that applies to development so that the minimum number of car parking spaces that must be provided as part of the development is a lower number; or
(b)waive a minimum on-site parking requirement that applies to development.
(2)The local government must not vary or waive a minimum onsite parking requirement under subclause (1) in relation to development unless the local government is satisfied –
(a)that reasonable efforts have been made to comply with the minimum on-site parking requirement without adversely affecting access arrangements, the safety of pedestrians or persons in vehicles, open space, street trees or service infrastructure; and
(b)that -
(i)in the case of a variation - the lower number of car parking spaces would be adequate for the demands of the development, having regard to the likely use of the car parking spaces, the availability of off-site parking facilities and the likely use of alternative means of transport[.]
Consideration of Issue 1(a)
Issue 1(a) requires consideration of parking proposed for customers and for staff. The applicant proposes that parking for customers and staff will be managed by a parking management plan, with parking for customers provided on-site and for staff addressed by various measures which I discuss later.
Customer car parking (on site)
Customer parking is proposed to be located on site in four car parking bays which are all accessible from a widened crossover directly to Mistral Meander.
The design of the proposed customer car parking bays with regard to safety and utility is addressed under Issue 3. The proposed development relies on a parking management plan which requires a turnover in use of the car parking bays aligned with user class 3 under AS/NZS 2890.1: 2004 Parking facilities Part 1: Off-street car parking (AS2890.1).[32] Relevant to this issue is the finding in Issue 3 that only three car parking bays (not four as proposed) can be accommodated on the subject site. This makes the total shortfall of on-site parking of four car parking bays (being a two car parking bay shortfall for customers and a two car parking bay shortfall for staff parking).
[32] Exhibit 19.
The design and streetscape outcomes which result from the carpark are addressed later under Issue 4. The impact of traffic associated with customers attending the subject site is addressed next in Issue 2.
The number of car parking bays required for the proposed development derives from the CCPLPP. The number of customer car parking bays required under the CCPLPP is five, however only three car parking bays can be provided on site.
Mr Nguyen's evidence is that the reduction in the number of customer car parking bays reduces the 'absorption capacity' on site in the event of all car parking bays being occupied.[33] Additionally, the respondent does not agree the parking management plan provides a solution that will eliminate the potential for a parking problem at dropoff and pickup times. The evidence of Mr Nguyen is that this aspect of the parking management plan relies on too many variables outside of the applicant's control, including time schedules of parents or guardians of the children attending the subject site and delays that may be experienced with daily traffic conditions.[34]
[33] ts 146, 12 May 2021 and Exhibit 17, page 7.
[34] Exhibit 17, page 7.
Mr Nguyen's evidence cites the New South Wales Roads and Maritime Services (RMS) Guide to Traffic Generating Developments (2002) which advises, among other things, the average length of a car parking stay is 6.8 minutes.[35]
[35] Exhibit 7, para 41.
In his oral evidence, Mr Laybutt accepts Mr Nguyen's estimation of the average length of stay for customer car parking bays as 6.8 minutes. Given this, Mr Laybutt's evidence (which is based on there being four car parking bays on site) is:[36]
There's a high probability that at any given point there's at least one bay available. I think it's pretty clear, using the data provided in Mr Nguyen's statement, that each bay on average would be empty for 23 minutes of the 30 minute window[.]
[36] ts 164, 12 May 2021.
Mr Laybutt asserts the allocation of parking times can be readily controlled by the applicant through the enrolment process.[37] Mr Laybutt's evidence is that customer car parking bays will always be available because of the active management of these car parking bays.[38]
[37] Exhibit 13, para 30e and ts 175, 12 May 2021.
[38] Exhibit 17, page 7.
Mr Nguyen, when crossexamined by the applicant's representative about the probability of four proposed on-site car parking bays being available during drop-off and pick-up under the arrangement proposed by the parking management plan, resulted in the following exchange:[39]
Mr Algeri: [applicant's representative]
Do you accept that at any given time that there is a high probability that at least one bay will be empty?
Mr Nguyen:
I wouldn't say high probability. It's, I would say, maybe a moderate[.]
Mr Algeri:
Moderate - because if you said it was a high probability it means that not only are parents all coming at exactly the same time or close to it, but they're also staying a hell of a lot longer than 6.8 minutes.
Mr Nguyen:
[I] think you're looking at, sort of, like, a snapshot of one day. What's the probability on that one day that there is a vacant bay at any one time? Where this will operate, I think, it's 50 weeks of the year. So the amount of days - the probability that the amount of days where there might be someone waiting and those four bays are occupied I would consider to be moderate.
[39] ts 163-164, 12 May 2021.
When cross-examined about the level of risk if only three car parking bays are provided on site, Mr Nguyen's evidence was that this would be worse because there is less likelihood a car parking bay will be available and the likelihood that the verge will be used to drop off or park and wait increases.[40] Mr Laybutt, when cross-examined, agrees the result will be worse because there are less car parking bays available and an increased turnover of car parking bays is required, but disagrees the four narrower car parking bays proposed are unsafe.[41]
[40] ts 210, 12 May 2021.
[41] ts 210, 12 May 2021.
When the proposed development was advertised concerns were raised in the submissions received relating to the parking of vehicles in Mistral Meanders and illegal parking blocking driveways.[42] These submissions were based on an initial proposal which showed three car parking bays on site (not four car parking bays as in the proposed development) and did not provide for active management of the car parking bays, now detailed in the parking management plan.
[42] Exhibit 2, page 88.
If four (dimensionally compliant) car parking bays could be provided on site I would be satisfied that the concerns raised in the submission about on-site car parking will not occur with the active management of these car parking bays as proposed in the parking management plan. However, the dimensional constraints and size of the subject site do not make the provision of four car parking bays on site possible.
Staff car parking (off site)
The proposed development has no on-site car parking for the two full time staff. One part time staff member, working 12 noon to 2 pm, will park at the subject site and the parties agree on-site car parking is appropriate for this purpose. In respect to the two full time staff, the proposed development will control parking and transport arrangements through the parking management plan. This plan proposes one full time staff member, the applicant in this case, will commit to using public transport and the other full time staff member will use available on-street public parking in the immediate locality.
Mr Nguyen's evidence is that he considers the proposal for one full time staff member to commit to using public transport to be a reasonable measure as the subject site is within reasonable walking distance of Currambine train station.[43] However, Mr Nguyen holds concerns about ongoing compliance with the commitment. Mr Nguyen's evidence is that such a commitment would be difficult to achieve given public transport outages, weather conditions, the need to transport items to and from the proposed development and relief staff would also be required to adhere to the commitment.[44]
[43] Exhibit 7, para 47.
[44] Exhibit 17, page 8.
Mr Laybutt's evidence is that a parking management plan can specify that staff will be required to travel to the subject site via public transport or other non-car mode, through the explicit non-provision of on-site car parking. Mr Laybutt's evidence is that this is a standard approach taken for most non-residential developments across the Perth metropolitan area.[45]
[45] Exhibit 13, para 30d.
In respect to the other full time staff member required to park in public on-street parking, the respondent submits that the purpose of the nearby on-street parking is for use by residents and their visitors and is not intended for staff parking associated with commercial uses.
The evidence of the traffic experts, Mr Nguyen and Mr Laybutt, is that on-street car parking bays are available in the immediate locality.
Mr Laybutt provides evidence based on his review of Nearmap aerial imagery for a period of two years. Mr Laybutt's evidence is always that at least six car parking bays were available for use on Currambine Boulevard alone, which he says is more than sufficient for the use by one staff member.[46]
[46] Exhibit 13, para 28.
Mr Nguyen's evidence about on-street car parking availability is based on inspections of the subject site in March 2021. Mr Nguyen's evidence is that the only unrestricted public parking in the vicinity of the subject site is provided by on-street parallel car parking bays along Currambine Boulevard. During his inspections he also observes there were vacant car parking bays available.[47]
[47] Exhibit 7, para 48.
In his oral evidence Mr Nguyen expressed,
[I] accept that Nearmaps can give you the general availability of parking for a few snapshots in time, but this particular application is trying to justify reducing one onsite bay that's required. So there's probably more of an indication, or more - there needs to be more weight behind that justification. [48]
…
[T]he point … is that that full time employee does require parking all day for … 50 weeks of the year. So there is probably even more of a need to, I guess, have a level of comfortability that that parking is available on a more frequent basis than a few snapshots.[49]
[48] ts 191, 12 May 2021.
[49] ts 192, 12 May 2021.
Under cross-examination, Mr Nguyen agreed with the proposition that on-street car parking it is more likely to be used by residents after work as opposed to during the day.[50]
[50] ts 194, 12 May 2021.
Mr Nguyen, also surmises that the current level of parking availability may be related to the downturn in use of these car parking bays by public transport users due to the COVID-19 pandemic.[51]
[51] Exhibit 7, para 49.
When considering the amenity impact on the locality of the use of one on-street car parking bay by the full time staff member, the planning experts Mr Maiorana and Mr Thompson vary only marginally in their opinions. Mr Maiorana considered the use of on-street public parking would have no impact at all on amenity.[52] Mr Thompson concluded that the use of one on-street public car parking bay would have a 'low potential impact' on amenity.[53]
[52] ts 228, 12 May 2021.
[53] ts 230, 12 May 2021.
It is a generally accepted planning principle that any parking demand generated by a development should be provided on site, although the Tribunal has previously found that consideration of limited use of public car parking in the exercise of planning discretion is acceptable (see Randall and Town of Vincent [2005] WASAT 129 and Hunter & Anor and City of Rockingham [2008] WASAT 28).
The CCPLPP is a relevant planning policy to which I am required to give due regard under cl 67(2)(g) of the Deemed Provisions. In considering the exercise of discretion in respect to car parking provisions the objective of the policy at bullet point 2 is relevant:
To ensure that child care centres do not have an adverse impact on the surrounding areas, particularly residential areas.
Clause 67(2)(m), (n), (r), (s), (u), (x) and (y) of the Deemed Provisions are also relevant considerations in the exercise of discretion in respect to car parking for the proposed development. I am required to give these matters due regard.
Consideration of 77D
In applying 77D a local government must not waive a minimum on-site requirement under subclause (1) unless reasonable efforts have been made to comply with the minimum on-site parking requirement without adversely affecting access arrangements, safety of pedestrians or persons in vehicles, open space, street trees or service infrastructure.
Further, under 77D(b)(i) I also need to consider whether the lower number of car parking bays would be adequate for the demands of the proposed development, having regard to the likely use of the car parking bays, the availability of off-site parking facilities and the likely use of alternative means of transport.
Mr Thompson's evidence is that 77D requires reasonable efforts to be made by the applicant to comply with on-site parking requirements. Mr Thompson's evidence is that all options have looked to utilise the public realm to cater for the proposed development rather than incorporating them on the subject site. Mr Thompson opines:
Further modification to the built form may have been undertaken to provide for additional parking, alternatively reducing the scale of the development. [54]
With regards to 77D (2)(b)(i) the lower numbers of car parking are not considered adequate for the demands of the development noting the settings of the surrounding development.[55]
[54] Exhibit 6, para 62.
[55] Exhibit 6, para 63.
Mr Maiorana's evidence is that the applicant has gone to some length to consider the demand according to the scale of the proposed development, with a maximum of 20 children proposed. He opines:[56]
So those elements, I think, under the clause have all been considered, assessed, put forward in the form of a parking management plan, which I would consider to collectively comprise a reasonable effort to deal with that parking matter and address the requirements of that clause.
[56] ts 282, 13 May 2021.
Finally, in considering the proposed development, car parking demand and management of the proposed child care use and ultimately whether the proposed child care premises use is appropriate in respect to car parking provision, the locality of the subject site must be considered. In this regard, the proximity of Currambine train station to the subject site and the immediate proximity of on-street public car parking on Currambine Boulevard, which is not time limited are relevant. These are relied upon by the applicant in the parking management plan.
Findings on Issue 1(a)
In respect to Issue 1(a), I find in the circumstances of this case, the parking management plan will address the shortfall of car parking for full time staff given the proximity of the Currambine train station and the agreed low potential amenity impact of one staff member using one on street public parking bay, as both are in close proximity to the subject site.
However, I find the proposed child care premises use is not appropriate having regard to the car parking demand that will be generated by the use and the number of car parking bays able to be provided on the subject site for two reasons.
First, the provision of car parking on site has not been satisfactorily addressed. Only three customer car parking bays can be accommodated on site, resulting in a short-fall of two customer car parking bays. I am not satisfied that three car parking bays is sufficient to meet the car parking demand of the proposed development without causing a parking problem in this residential locality.
Second, considering the car parking shortfall under 77D, I am not satisfied the on-site car parking as proposed (which shows four car bays) is designed and configured in a manner that will not have an adverse effect on access arrangements and the safety of persons in vehicles, in this case the customers of the proposed development, which include young children. This is further discussed in Issue 3.
Issue 2 - Whether the proposed child care premises use is appropriate in terms of its compatibility with current and future residential uses in the Residential R80 zone having regard to the traffic generated by the proposal
Contentions
It is contended by the respondent that vehicles entering and exiting (via a reversing manoeuvre) the on-site car parking bays during peak dropoff and pick-up times may cause congestion and safety issues in Mistral Meander. Further, it is contended traffic concerns will be exacerbated by the car parking shortfall, which may require customers to park off the subject site in Mistral Meander, giving rise to an unsafe traffic situation.
Consideration of Issue 2
There is agreement by the traffic experts on this issue, that the proposed development because of its small size, is compatible from a traffic perspective.[57]
[57] Exhibit 17, page 9
The context of the subject site is an important consideration and I note Mr Thompson's evidence regarding the fact that customers to the proposed development accessing the subject site along Mistral Meander will need to pass multiple residential properties along this street.[58]
[58] Exhibit 6, para 68
At this present time there is no approved development for the vacant lot, Lot 1 Sunlander Drive, located to the north of the subject site. The traffic experts agree that the cumulative impact of the proposed development and any neighbouring developments that may occur within the proposed three year time period of operation is unlikely to be substantial.[59]
[59] Exhibit 17, page 5.
There is agreement by the planning experts on the negligible impact the proposed development will have on Currambine Boulevard. The planning experts agree the character of Mistral Meander, which is an access road, and has the character of a lane. Mistral Meander does not have houses oriented to it and has 1.8 metre high fences and garage doors.[60]
[60] ts 293-294, 13 May 2021.
Consideration of the car parking shortfall and the design and of the onsite car parking of the proposed development is addressed in Issue 1 and Issue 3.
Findings on Issue 2
I find, that in respect to traffic generation, the proposed development is appropriate for four reasons.
First, the scale of the proposed development is small and the expert traffic witnesses agree the existing local road network can accommodate the proposed development.
Second, the planning experts agree that the traffic generated by the proposed development on Currambine Boulevard will have a negligible impact on amenity. The single houses in the immediate locality have frontage to this street.
Third, the planning experts agree that the character of Mistral Meander, which is an access road, is like a lane and the houses do not front this street. As a result, the increase in traffic from the proposed development, which remains within the design requirements for this local access road, will have a negligible adverse amenity impact on adjoining houses.
Fourth, the traffic experts agree that while an increase in traffic in Mistral Meander may occur if and when the site at Lot 1 Sunlander Drive is developed, this is not likely to exceed the capacity of Mistral Meander.
Issue 3 - Whether the proposed child care premises use is appropriate for the subject site having regard to the design of the car parking bays provided and their safety and utility
Contentions
The respondent contends in relation to carpark design that vehicles are required to enter and exit the site in a forward gear and that the car parking bay design should meet the relevant requirements of AS2890.1 and AS.NZS 2890.6: 2009 Parking facilities Part 6: Off-street parking for people with disabilities (AS2890.6)[61].
Consideration of Issue 3
[61] Exhibit 20.
Issue 3 requires consideration of the design of the car parking bays and specifically their safety and utility. Clause 67(2)(s) of the Deemed Provisions requires I give due regard the adequacy of the means of access and egress from the subject site and the arrangements for the loading and unloading, manoeuvring and parking of vehicles.
In this respect, I am guided by two relevant Australian Standards, AS2890.1 and AS2890.6. I also give due regard to the CCPLPP and its provisions relating to car parking, which relevantly references AS2890.1, and the CCPLPP provisions for access and egress to be in a forward gear.
In coming to a finding I also consider the context of the subject site, the proposed development and the parking management plan, the submissions and the evidence from the traffic and the planning experts.
It is uncontroversial between the expert traffic witnesses that the user class for a child care premises under AS2890.1 is user class 3.[62] It also agreed by the traffic experts that the width of each of the four customer car parking bays does not meet the width requirements, each being 200 millimetres less than required. The proposed car parking bay widths align with user class 1 of AS2890.1, as the car parking bays do allow for single manoeuvre entry and exit.[63]
[62] Exhibit 17, page 5.
[63] Exhibit 17, page 5.
Table 1.1 of AS2890.1 details that user class 1 aligns with all day car parking for employees and commuters and allows for front door opening. User class 3 allows for full opening of all doors, single manoeuvre entry and exit and is suitable for short-term car parking as in the proposed development and required by the parking management plan. I also refer to the note 1 of Table 1.1 which states in part:
Except for the requirements specified in Clause 1.4 relating to User Classes 1A and 4, the examples of uses are intended to be flexible and allow for progressive improvement both in the ease of manoeuvring into and out of parking spaces, and in leaving and re-entering the vehicle as one progresses up the user class scale from 1 to 3A[.]
Mr Nguyen's evidence is that the relevant considerations when allocating a user class to the car parking bay dimension is detailed in Table 1.1 of AS2890.1.[64] Mr Nguyen identifies this relates to both the type of the use and the anticipated time period which the car parking bay is to be occupied. I note that Mr Laybutt does not disagree that the customer car parking in this case will be for short term use.[65]
[64] Exhibit 17, page 10.
[65] ts 169, 12 May 2021.
The reduced car parking bay width for each of the car parking bays is a direct result of the dimensional constraints of the subject site, rather than an application of the appropriate user class requirements in AS2890.1.
Note 1 of Table 1.1 indicates that the 'examples of uses are intended to be flexible'.[66] In considering if a user class 1 car parking bay width is appropriate in this case, the car parking is not for employee and commuter parking or all day parking. The intended users of the car parking bays will be parents or guardians and small children who require a reasonable car parking bay width to readily and safely access rear doors for short-term drop-off and pick-up.
[66] Exhibit 19, page 9.
The applicant identified MacKenzie and City of Stirling, [2015] WASAT 144 (MacKenzie), as relevant to car parking bay width. In MacKenzie the child care centre proposed car parking bays at 2.5 metres wide, not 2.4 metres as in this case. The Tribunal found that 2.5 metre wide car parking bays were acceptable after assessing the evidence of the traffic experts and the facts of that case. The Tribunal however was not required to consider the appropriateness of a further reduction to 2.4 metre wide car parking bays for short-term use by child care centre customers as proposed here. A child care centre proposal at Lot 212 Gungurru Avenue, Hocking, was also referred to at the final hearing.[67] The carpark at Gungurru Avenue included customer car parking bays at 2.5 metres wide. AS2890.1 assigns a 2.5 metre wide car parking bay width to user class 2, which is generally associated with medium term parking, and allows full opening of all doors.
[67] Exhibit 22.
In this carpark vehicles cannot exit the carpark in a forward gear as required by the CCPLPP. In this respect, there is contrasting evidence from Mr Laybutt and Mr Nguyen as to the safety of the carpark. Mr Nguyen's evidence is that car parking bay widths will have an impact on safety for users.[68] Mr Nguyen's oral evidence is:[69]
[T]he point about manoeuvring in and out of the bays, I guess, there's a safety aspect to that as well. So if there's someone getting their child in and out of the bay, that extra 200 mil is, I think, quite important for allowing that car leaving the bay to have more room to avoid any potential conflicts with someone getting in and out of their vehicle. I disagree that the manoeuvrability in and out of the bays purely based on the aisle width. The bay width, obviously, if you've got 2.6 you can get out of that a lot – manoeuvrability is easier.
And I guess the second point about the ease of getting in and out of the vehicle and getting children out of there, while I accept that, yes, it would take longer and the implication of that may not be significant, but then I guess there's a safety aspect to that as well. The extra room especially with vehicles moving in and out in the vicinity, I believe it's essential on a safety basis as well.
[68] ts 179, 12 May 2021.
[69] ts 170-171, 12 May 2021.
Mr Nguyen also is of the opinion that reversing on to Mistral Meander to exit the carpark presents a higher risk, when considering the development traffic, than leaving the subject site in a forward gear.[70] Mr Nguyen's oral evidence is:[71]
I wouldn't agree that it's safer because there's factors in the current application that presents perhaps more risky behaviour in that if the on site, four on site bays are occupied it's likely that parents may seek to drop off or pick up their child on the street and then you've got a mix of pedestrians and cars on the street.
[70] ts 173, 12 May 2021.
[71] ts 147, 12 May 2021.
Mr Laybutt's evidence, accepts that a reduced car parking bay width will be less convenient for users but maintains the carpark of the proposed development is functional and safe by virtue of the low traffic volume and low speed environment of Mistral Meander[72]. Mr Laybutt also says that the effective aisle width to manoeuvre into the car parking bays, which includes the crossover and the Mistral Meander road pavement, significantly exceeds the requirements of AS2890.1.[73]
[72] ts 172, 12 May 2021.
[73] Exhibit 17, page 10.
Mr Laybutt in his oral evidence states:
So realistically the probability that vehicles are rushing to manoeuvre in and out of bays at the same time as parents are unloading their children because it's move, move, move, there's no spare capacity, I don't think that's a reasonable premise. So I do believe in the context of this very, very small premises with a very actively managed parking arrangement, and importantly, the extra aisle width, I disagree with the premise that it could be unsafe and I absolutely am of the view it is safe and functional.[74]
…
So where you've got bays that are 10 centimetres or 20 centimetres below the required standard, it is reasonable to mitigate the manoeuvrability impacts by providing a larger aisle width. In some cases that extra aisle width may only need to be 200 mils. In this case, the additional aisle width is 4.2 metres, I believe. So what applies in the subject site is that the very large aisle width more than effectively compensates for the slightly narrower bays in terms of manoeuvring in and out of those bays. It's also important to recognize that approximately five metres of the aisle width is actually on the verge/within the property and the roadways located in the five metre to 10 metre distance. So there is actually a substantial distance for drivers to straighten up or be ready to turn as they reverse before they actually enter the roadway.
Notwithstanding the extremely low level of speed and traffic that is on that roadway. The second element of narrower bays is that with a reduced clearance there may be slightly more difficulty in, for example, taking a child out of a booster seat from the rear passenger sides. In practical terms, it's still possible to do that. The application doesn't propose bay widths which are completely substandard. They are adequate for if this - if the subject individual was parking at home, they would be using the same bay. So it's clearly possible to load and unload a child or otherwise. What may happen is that it takes slightly longer to do so.[75]
[74] ts 172, 12 May 2021.
[75] ts 169-170, 12 May 2021.
Turning to parking for people with disabilities, which is to be designed in accordance with the design standards set out in AS2890.6, the traffic experts agree a separate dedicated car parking space is not required.[76] However, the traffic experts disagree on the need for a dedicated shared space. The evidence of Mr Laybutt is that modifications could be made to the pavement for the shared space to extend it a further 660 millimetres to the west to be compliant, at the same time noting this would extend part of the paved area outside of the subject site.[77] Mr Laybutt also considers the shared space could be accommodated using any one of the adjoining car parking bays.[78] Mr Nguyen's evidence is that this proposal would give rise to safety concerns as the person using this shared space would have no protection from a vehicle entering this space.[79]
[76] Exhibit 17, page 4.
[77] Exhibit 17, page 11.
[78] Exhibit 17, page 11.
[79] Exhibit 17, page 11.
In coming to a finding on this issue, an important consideration is the justification for a reduced car parking bay width, the relevant Australian Standards (AS2890.1 and AS2890.6) and the expert evidence on the safety of the carpark in the context of local traffic conditions and the proposed users. The considerations which determine whether the carpark design is suitable in the context of the proposed development and the subject site are the reduced car parking bay width, the need to reverse into Mistral Meander to exit the carpark and the lack of an appropriate dedicated shared space for use by disabled persons.
Findings on Issue 3
In respect to Issue 3, whether the proposed development is appropriate having regard to the design of the car parking spaces provided on site and their safety and utility, I find the carpark of the proposed development not appropriate for three reasons.
First, there is insufficient justification to reduce the car parking bay width for the four car parking bays proposed, noting the car parking bays are for short-term use by customers with young children, not all day, employee or commuter parking. I prefer the evidence of Mr Nguyen over Mr Laybutt, noting Mr Nguyen's position that the justification for a departure from AS2890.1 should relate to the examples of uses detailed in Table 1.1. in this regard. This is a factor which makes the design of the proposed car parking bays, in respect to car parking bay width, unsuitable for the proposed land use.
Second, vehicles cannot exit the carpark in a forward gear, contrary to the requirements of the CCPLPP, which in the context of the proposed use involving young children and direct access to Mistral Meander, and notwithstanding the proposed parking management plan, is likely to give rise to safety issues associated with customers reversing, and vehicles arriving during peak pick-up and drop-off times. I prefer the reasoned evidence of Mr Nguyen which considers the extended length of the reversing movement required to exit the car parking bays, the reduced car parking bay width, the movement of customer traffic in Mistral Meander and the potential hazard of customers with children crossing Mistral Meander if there are no car parking bays available on the subject site. Even considering the small scale of the proposed development, these remain factors which make the proposed access and egress arrangements with Mistral Meander, unsuitable for the proposed development.
Third, the shared space of the proposed development, associated with the temporary disabled car parking bay, is not compliant with AS2890.6. A widened compliant shared space cannot be accommodated on the subject site without a reduction in the play space and an encroachment of paving onto public land. The alternative proposal for the use of an adjoining car parking bay as a temporary, but unprotected, shared space presents a safety risk for the user. The lack of a suitable shared space for use by a disabled person is a factor which makes the proposed carpark design unsuitable for the proposed development.
Issue 4 - Whether the proposed child care premises use is appropriate in the Residential R80 zone having regard to the proposed design and streetscape outcomes associated with the proposed vehicular crossover and on-site car parking arrangement
Contentions
It is contended by the respondent that the proposed 9.7 metre wide crossover is inconsistent with the character of surrounding residential properties (and the locality generally) and the widened crossover limits the ability to provide landscaping in accordance with relevant provisions of the CCPLPP.
Consideration of Issue 4
The proposed vehicle crossover and car parking arrangements for the proposed development will present a 9.7 metre wide crossover to Mistral Meander. The view from Mistral Meander to the subject site will also include four car parking bays. The northern elevation of the proposed development includes two windows from the proposed play space which will view across the carpark and crossover to Mistral Meander. No landscaping is shown on the subject site to soften the extent of the 9.7 metre wide crossover. The landscaping proposed adjacent to the subject site, shown on the site plan[80] conflicts with the proposed turning area required for use by fire appliances in the event of a bushfire.
[80] Exhibit 2, page 342.
It is not controversial between the parties that Mistral Meander currently has the character of a lane, with 1.8 metre high fences and access to garages, with crossovers ranging in width from 3 to 6 metres. Two lots in Mistral Meander have paved verge areas which Mr Thompson says are unauthorised.[81]
[81] Exhibit 6, para 79.
In considering the proposed 9.7 metre wide crossover, Mr Maiorana's evidence is that it does not meet the deemed-to-comply requirements of the C5.2 of cl 5.3.5 of the Codes.[82] Mr Thompson's evidence provides an assessment against the relevant design principles of the Codes at cl 5.3.5, P5.1.[83] Mr Thompson's evidence indicates that a crossover of nearly 10 metres wide would generally have a detrimental impact on the amenity of the residential area and would not likely meet the design principle of the Codes under cl 5.3.5 given the impact on the streetscape.[84]
[82] Exhibit 14, paras 151-152.
[83] Exhibit 6 paras 76-78.
[84] Exhibit 6, para 78.
In considering the amenity impact of the proposed 9.7 metre wide crossover and car parking arrangement observed from the view, and as agreed by the planning experts, its impact is limited to visual amenity.[85] In this respect, the crossover and car parking arrangement will not be directly visible from neighbouring residential properties. Both the crossover and carpark will however be visible from Mistral Meander. Mistral Meander currently lacks passive surveillance and landscaping.
[85] ts 296, 13 May 2021.
The proposed development indicates landscaping is to be provided in the verge to the west of the widened crossover. In the respondent's submissions, the conflict between the proposed location of the landscaping and the need for this area to be used for a turnaround for fire appliances is identified.[86] It is apparent that it is not possible to provide any landscaping, even off the subject site as shown on the site plan[87], to mitigate the visual impact of the proposed 9.7 metre wide crossover.
[86] ts 354, 13 May 2021.
[87] Exhibit 2, page 342.
The 9.7 metre wide crossover arrangement will appear out of character with the context of the Mistral Meander streetscape, which is generally characterised by crossovers of between 3 and 6 metres in width. The car parking arrangement, with four car parking bays directly fronting the street is also not consistent in character with the residential streetscape of Mistral Meander. No landscaping can be provided to ameliorate the negative amenity impacts of the 9.7 wide crossover and the on-site car parking arrangement. In this respect landscaping is a relevant matter in cl 5.5 of the CCPLPP and also a matter which I am required to give due regard under cl 67(2)(p) of the Deemed Provisions.
Findings on Issue 4
In respect to Issue 4, whether the proposed development is appropriate having regard to the design and streetscape outcomes of the vehicular crossover and on-site car parking arrangement, I find it is not appropriate for three reasons.
First, the proposed 9.7 metre wide crossover is not consistent with the residential amenity of Mistral Meander or the character of the Residential R80 zone and the proposed crossover does not meet the requirements of P5.1 of the Codes, and which is a relevant consideration in achieving the objective in bullet point two of the CCPLPP.
Second, the proposed 9.7 metre wide crossover will be detrimental to the amenity of the Mistral Meander due to the extent of paving and the lack of landscaping at the boundary which is a consideration under cl 5.5(a) of the CCPLPP and cl 67(2)(p) of the Deemed Provisions.
Third, the resulting configuration of the four car parking bays fronting directly to Mistral Meander is not consistent with current streetscape outcomes for Mistral Meander or the Residential R80 zone.
Issue 5 - Whether the proposed child care premises use is appropriate having regard to the requirements of SPP 3.7, given that the proposal is for a vulnerable land use in an area of moderate bushfire risk
Contentions
It is contended by the respondent that the Mistral Meander carriageway does not provide the minimum turning area of 17.5 metres to allow emergency vehicles to manoeuvre. The respondent also contends that the evacuation time in the BEP is insufficient to allow for evacuation of the premises in the event of a bushfire emergency.
The applicant no longer relies upon use of the pedestrian accessway (PAW) as an alternative form of vehicular access in the event of a bushfire emergency, so this aspect is no longer a contention.
The respondent also made submissions about the fact that no upgrades to the building is proposed to improve bushfire protection in line with the determined BAL. It is however agreed by the expert bushfire witnesses that SPP 3.7 or the Guidelines for Planning in Bushfire Prone Areas (Guidelines) do not require planning applications in bushfire prone areas for dwellings to be retrofitted to comply with AS3959.2018 - Construction of buildings in bushfire prone areas (AS3959)[88]. As a result, this aspect is considered in the context of cl 2.5 of the Guidelines, which relates to discretionary decisionmaking under SPP 3.7 and outlined later at [1662] and [190].
Consideration of Issue 5
[88] Exhibit 18.
Issue 5 relates to SPP 3.7 and whether the proposed development is appropriate having regard to its requirements, given the proposed development is for a vulnerable land use in an area of moderate bushfire risk. In addition, cl 67(2)(q), (r) and (za) of the Deemed Provisions are relevant to this issue and I am required to give them due regard. Additionally, s 241(1)(a) of the PD Act, requires I give due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application, and in this case SPP 3.7 is relevant.
In considering this issue, the provisions of SPP 3.7, the Guidelines, the Guidelines (Appendices) and the expert evidence of the bushfire consultants are most relevant.
The provisions of SPP 3.7 and the Guidelines relevant to this matter are set out below.
Clause 2 sets out the policy intent of SPP 3.7 in the following terms:
The intent of this policy is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure.
Clause 4 requires that SPP 3.7 is to be read in conjunction with:
•the Deemed Provisions contained in the Planning and Development (Local Planning Schemes) Amendment Regulations 2015, which form part of every local planning scheme;
•where relevant, any supplementary provisions of a scheme;
•the supporting Guidelines; and
•Australian Standard 3959: Construction of buildings in bushfire-prone areas.
Clause 5 sets out the objectives of SPP 3.7 as follows:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
Relevant to the proposed development, cl 6.6.1 of SPP 3.7 states:
[That] development applications for vulnerable or high-risk uses in areas between BAL-12.5 to BAL-29 will not be supported unless they are accompanied by a Bushfire Management Plan jointly endorsed by the relevant local government and the State authority for emergency services. Development applications should include an emergency plan for proposed occupants and/or a risk management plan for any flammable on-site hazards.
In respect to road hierarchy, I note the cl 5.1.2 of the CPPLPP advises child care premises can be reasonably high traffic generators and they should be located on local distributor roads. The proposed development relies on an access road, Mistral Meander, to access customer car parking bays and the car parking for a part time staff member. Notwithstanding this, traffic impact is found to be acceptable and this is addressed in Issue 2.
Clause 5.2.1 relates to the car parking standard, which requires seven car parking bays to be provided on-site for the proposed development. The car parking bay shortfall is found to be four car parking bays and the parking management plan, is addressed in Issue 1(a).
Car parking location and design (cl 5.2.2) has been addressed in Issue 3. I note the evidence of Mr Thompson in respect to cl 5.2.2(d) that pedestrian access can potentially be addressed by a condition of approval.[114] In oral evidence, both planning experts agree bicycle parking (cl 5.2.3) can be addressed by a condition of approval.[115]
[114] ts 238, 12 May 2021.
[115] ts 230-231, 12 May 2021.
Mr Thompson's evidence is the proposed development does not comply with landscaping as detailed in cl 5.5.[116] Non-compliance with this provision is a result of the 9.7 metre wide crossover which prevents a landscape buffer and does not provide space for the planting of a shade tree in the carpark.
[116] Exhibit 6, para 86.
It is not contentious between the parties that the CCPLPP is a relevant local planning policy that due regard is to be given under cl 67(2)(g) of the Deemed Provisions. It is also agreed that the CCPLPP, being a policy, should not be inflexibly applied. Policies are expected to guide decisionmaking and will generally be applied, but consideration must be given to whether there is a cogent reason why a policy should not be applied in a particular case: Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24].
It is the applicant's submission that there is a reasonable basis to depart from CCPLPP due to the unique small scale of the proposed development, the temporary approval period sought and the circumstances of the subject site. The applicant says all these factors means the objective of the CCPLPP, to ensure the child care premises do not have an adverse impact on the amenity of surrounding areas, particularly residential areas, will be met.
The respondent accepts the proposal is small in scale. However, the respondent says there is no cogent reasons to vary the policy provisions in respect to the carpark design, which the CCPLPP requires it meet AS2890.1. The respondent also says there is not a cogent reason in the circumstances to justify varying the provisions of the CCPLPP in respect to landscaping and that the proposed development, with its widened crossover and lack of landscaping to Mistral Meander is not consistent with the residential area and will have an adverse effect on the amenity of the locality.
Findings on the carpark design and streetscape impacts associated with the widened crossover and the impacts on safety and amenity are addressed in the earlier issues.
Findings on Issue 6
In respect to whether the proposed development complies with the CCPLPP in relation to location, siting and adverse impact on the amenity of the locality, I find that proposed development does not satisfy the provisions of the CCPLPP for four reasons.
First, the amenity impacts resulting from the configuration of the car parking design and access arrangement to Mistral Meander are not consistent with the residential amenity of the street and the locality. This is addressed in Issue 4. In this case, while acknowledging the smaller scale of the proposed development, it does not meet the CCPLPP objective which is to ensure that child care premises do not have an adverse impact on the amenity of the surrounding areas, particularly residential areas.
Second, the smaller scale of the proposed development of itself is not a cogent reason to depart from certain requirements of the CCPLPP. The planning principles in the CCPLPP relating to car parking, access and egress and landscaping remain relevant in this case and these requirements are not able to be met due to the size constraints of the subject site.
Third, the proposed development does not meet the car parking location and design requirements set out in cl 5.2.2, specifically the width of the four car parking bays do not accord with AS2890.1 for user class 3 and vehicles cannot exit the subject site in forward gear. This is addressed in Issue 3. There is not a cogent reason to depart from the CCPLPP provisions in respect to the AS2890.1 associated with the carpark design.
Fourth, the proposed development does not meet the landscaping requirements of cl 5.5(a). There is not a cogent reason to depart from the CCPLPP in respect to the landscape requirements, particularly in relation to the proposed interface of the development with Mistral Meander.
In considering the objective of the CCPLPP which is to ensure child care premises do not have an adverse impact on the amenity of surrounding areas, particularly residential areas, the proposed development does not meet this policy objective and therefore should be refused.
Issue 7 - Whether the extent of the modifications proposed to the existing building mean that the altered building will not be able to be used as a single dwelling in the future.
Issue 7 was identified by the Tribunal at the commencement of the final hearing and agreed by the parties. The parties considered they were capable of addressing this issue at the final hearing.
Contentions
It is contended that, as a temporary approval of the proposed development is sought, it is necessary to address the future use of the building for residential purposes after the temporary approval period expires.
Submissions
The applicant's submission is that the modifications to the child care premises can be reversed, in the same way that those modifications have been made for its conversion.
The applicant submits this can be addressed by a condition of approval to make sure that its functionality as a single dwelling post the approval period is also retained.[117]
[117] ts 3, 11 May 2021.
The applicant proposes the following condition to address this issue:[118]
Unless any subsequent approvals are granted by the City, within 30 days of [the expiry of] this approval, any application required for the building to be reinstated to comply with single dwelling requirements of the Residential Design Codes must be made. Within 90 days of any such approval (or written notice that no approvals are required), all reinstatement works for a single dwelling must be completed.
[118] Exhibit 24.
The applicant submits that a caveat is not required to be placed on the title of the subject site as a planning condition is sufficient for compliance to be achieved under the PD Act.[119]
[119] ts 375-376, 13 May 2021.
The respondent agrees this issue can be addressed by a planning condition, but supported by a caveat on the title of the subject site.[120] The respondent further submits the conversion of the building back to a single dwelling would give rise to the construction requirements for buildings in bushfire prone areas of AS3959 needing to be met for the reinstatement works.[121]
[120] ts 374-376, 13 May 2021.
[121] ts 7, 11 May 2021.
Other than an appropriate planning condition to be supported by a caveat on title to ensure enforceability, the respondent makes no submission on the wording of the draft condition proposed by the applicant.[122]
Discussion on Issue 7
[122] Exhibit 24 and ts 276, 13 May 2021.
In respect to whether the extent of the modifications proposed to the existing building mean that the building will not be able to be used as a single dwelling in the future, the issue was broadly agreed in the submissions from the parties and the evidence of the expert planning[123] and bushfire experts.
[123] ts 273-274, 13 May 2021.
Mr Scott and Mr Panikar agree that any external works required to convert the building back to a single dwelling will need to comply with AS3959. The bushfire experts also agree the other requirement would be that the change of use back to residential will require a BAL assessment and a certificate to be issued.[124]
[124] ts 119-120, 11 May 2021.
The one area of disagreement is whether the draft planning condition proposed by the applicant should be supported by a notification placed on the title of the subject site, through an instrument such as a caveat.
Mr Maiorana's evidence regarding the need for a caveat is that this would be onerous and excessive.[125] Mr Maiorana acknowledges that a caveat would improve the ability to enforce a planning condition, but believes a planning condition to be the best mechanism.[126] Mr Thompson's evidence is that some form of bond may be appropriate in addition to the planning condition, but he acknowledges that he has not come across this circumstance in his previous experience.[127]
[125] ts 277, 13 May 2021.
[126] ts 278, 13 May 2021.
[127] ts 277, 13 May 2021.
Given my findings on the other preceding issues and considering the lack of evidence as to whether a notification on title is reasonable in the circumstances of this case, I do not need to make a finding on this aspect of Issue 7.
Findings on Issue 7
I find that the existing building can be modified and returned to be used as a single dwelling for two reasons.
First, the evidence from the bushfire experts is that AS3959 applies to new external works that may be required for the conversion of the building back to a single residence. As the external works to enable the building to be used as a single residence in future are not significant, the requirements of AS3959 will not be an impediment to the conversion of the use.
Second, the parties agree that internal building modifications can occur at the conclusion of a temporary approval period to convert the building back to be used as a single dwelling.
Conclusion
The proposed development is for a change of use from a single house to a 'child care premises', including building modifications and signage. The proposed change of use is to a discretionary land use under LPS 3, and therefore capable of approval.
However, considering the proposed development alongside the planning framework and the issues identified for determination, I consider this weighs against approving the application under s 29(3) of the SAT Act.
As noted earlier, I find the proposed development acceptable in respect to the traffic generated by the proposal. I also note findings on Issue 7, in which the building could be converted back for use as a single house at the conclusion of a temporary approval period.
However, when considering the findings on the provision and design of the on-site car parking, the streetscape impact of the associated 9.7 metre wide crossover, the resulting lack of landscaping and the lack of a suitable turnaround area in Mistral Meander for emergency vehicles in the event of a bushfire, I find that the proposed development will be detrimental to the amenity of this residential locality and give rise to safety issues. These factors weigh heavily against approval of the proposed development, even for the temporary three year period sought.
Notwithstanding the findings on the various matters that require consideration under the Deemed Provisions, which includes the CCPLPP, I acknowledge I retain a discretion to approve the proposed development. The central plank to the applicant's argument is that departure from the relevant planning framework, where required, is justified primarily by the small scale of the proposed development and the temporary period of the approval sought. For the reasons I have explained these factors do not constitute a cogent basis to depart from the planning framework to support the proposed development.
Accordingly, I conclude that having due regard to the relevant matters in cl 67(2) and cl 77D of the Deemed Provisions, and s 241(1)(a) of the PD Act, and weighing up my findings on the issues before me, the correct and preferable decision, for the reasons I have outlined, is to dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
Orders
For these 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 the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
11 AUGUST 2021
ANNEXURE A
State Planning Framework
Planning and Development Act 2005 (PD Act)
Section 241 requires the SAT to have regard to certain matters, as follows:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including
(a)any State planning policy which may affect the subject matter of the application[.]
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Clause 67 in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), sets out the matters to which due regard must be had in considering a development application (to the extent the matter is relevant).
(Note: In this case, the correct version of cl 67(2) is the one in operation prior to amendment on 15 February 2021. This is by virtue of the transitional provisions of the Planning Regulations Amendment Regulations 2020 (WA).)
In respect to the proposed development, cl 67 requires I have due regard to the following matters:
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including –
…
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following:
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii)social impacts of the development.
…
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
(s)the adequacy of –
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)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 on traffic flow and safety;
(u)the availability and adequacy for the development of the following –
(i)public transport services;
(ii)public utility services;
(iii)storage, management and collection of waste;
(iv)access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
(v)access by older people and people with disability;
…
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application.
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Clause 77D of the Deemed Provisions commenced on 1 July 2021. The provisions of cl 77D are:
(1)The local government may –
(a)vary a minimum on-site parking requirement that applies to development so that the minimum number of car parking spaces that must be provided as part of the development is a lower number; or
(b)waive a minimum on-site parking requirement that applies to development.
(2)The local government must not vary or waive a minimum on-site parking requirement under subclause (1) in relation to development unless the local government is satisfied –
(a)that reasonable efforts have been made to comply with the minimum on-site parking requirement without adversely affecting access arrangements, the safety of pedestrians or persons in vehicles, open space, street trees or service infrastructure; and
(b)that -
(i)in the case of a variation - the lower number of car parking spaces would be adequate for the demands of the development, having regard to the likely use of the car parking spaces, the availability of off-site parking facilities and the likely use of alternative means of transport[.]
(Note: Clause 77D was not in effect when this matter was heard by the Tribunal, however the parties are aware of the timing of its introduction on 1 July 2021 and provided submissions and evidence on its relevance. Clause 77D is operative at the time of this decision.)
Metropolitan Region Scheme (MRS)
The subject site is zoned 'Urban' under the MRS.
State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7)
Clause 2 sets out the policy intent of SPP 3.7:
The intent of this policy is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure.
Clause 4 requires that SPP 3.7 is to be read in conjunction with:
•the Deemed Provisions contained in the Planning and Development (Local Planning Schemes) Amendment Regulations 2015, which form part of every local planning scheme;
•where relevant, any supplementary provisions of a scheme;
•the supporting Guidelines; and
•Australian Standard 3959: Construction of buildings in bushfire-prone areas.
Clause 5 sets out the objectives of SPP 3.7 as follows:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
Clause 6.6 of SPP 3.7 deals with vulnerable or high-risk land uses and cl 6.6.1 states:
Subdivision and development applications for vulnerable or high-risk uses in areas between BAL-12.5 to BAL-29 will not be supported unless they are accompanied by a Bushfire Management Plan jointly endorsed by the relevant local government and the State authority for emergency services. Development applications should include an emergency plan for proposed occupants and/or a risk management plan for any flammable on-site hazards.
Clause 6.11 of SPP 3.7 sets out the precautionary principle:
Where a landowner/proponent has not satisfactorily demonstrated that the relevant policy measures have been addressed, responsible decisionmakers should1 apply the precautionary principle to all strategic planning proposals, subdivision and development applications in designated bushfire prone areas. For example, if a landowner/proponent cannot satisfy the performance principles of the relevant policy measures through either the application of the acceptable solutions outlined in the Guidelines, or through the alternative solutions endorsed by the WAPC and State authority/relevant authority responsible for emergency services, the application may not be approved.
Footnote one to cl 6.11 states:
In this context, 'should' is to be read as a strong recommendation. In relation to strategic planning proposals, subdivisions and development applications, this policy also recognises that each site is to be assessed on merit and that the determination of an application may involve the use of discretion in planning decision-making to support innovative bushfire risk management solutions.
Clause 7 of SPP 3.7 contains the definition of ‘precautionary principle’:
The presumption against approving further strategic planning proposals, subdivision and development applications or intensification of land uses, where there is a lack of certainty that the potential for significant adverse impacts can be adequately reduced or managed in the opinion of the decision-maker.
Planning Bulletin 72/2009 Child Care Centres (Planning Bulletin 72/2009)
Planning Bulletin 72/2009 outlines revised child care centre guidelines published by the Western Australian Planning Commission (WAPC) in 2009.
Section 3 Policy guidance outlines Planning Bulletin 72/2009 provides policy provisions to guide local governments in the preparation of scheme provisions and local policies on child care centres.
Section 3.2 of Planning Bulletin 72/2009 sets out the objectives:
a)locate child care centres appropriately in relation to their surrounding service area;
b)minimise the impact a child care centre has on its surrounds, in particular on the amenity of existing residential areas;
c) minimise the impact the surrounds may have on a child care centre; and
d)consider the health and safety of children attending the child care centre within the confines of the planning system.
Section 3.3 of Planning Bulletin 72/2009 addresses the location of childcare centres and sets out the following factors of an appropriate location:
a)distributed strategically to provide the maximum benefit to the community it serves;
b)within easy walking distance or part of appropriate commercial, recreation or community nodes and education facilities;
c)located in areas where adjoining uses are compatible with a child care centre (includes considering all permissible uses under the zoning of adjoining properties);
d)serviced by public transport (where available);
e)considered suitable from a traffic engineering/safety point of view; and
f)of sufficient size and dimension to accommodate the development without affecting the amenity of the area.
Section 3.3 of Planning Bulletin 72/2009 also outlines the location of child care centres are generally not suitable where:
…
k)access is from a local access street which may impact on the amenity of the area due to traffic and parking[.]
Section 3.4 of Planning Bulletin 72/2009 outlines the site characteristics of child care centres are to:
… be of sufficient size and suitable shape to accommodate the development, including all buildings and structures, parking for staff and parents, outdoor play areas and landscaping, as determined by the relevant local planning scheme or local policy and applicable regulations. As a general rule sites in a residential area should be of regular shape and greater than 1000 sqm[.]
Section 3.5 of Planning Bulletin 72/2009 outlines the design and visual appearance of child care centres are to:
… be in accordance with the local government local planning scheme or relevant local policy and applicable regulations. In the absence of any specific provisions, the visual appearance of the development should reflect the character of the area, enhance its amenity and be considered appropriate for regular use by children.
Parking areas should be located in front of the building. If this is not possible they should be clearly visible and easily accessible from the entry to the site. As a general rule, the minimum parking requirement for a child care centre, including staff parking, will be one space per five children. The number of parking bays may be varied by the local government given the specific provisions of the local planning scheme or relevant local policy and any unique circumstances relating to the proposed development, such as reciprocal parking arrangements, available public transport and street parking. Vehicles will be required to enter and exit the site in a forward gear, and there may be additional requirements resulting from a traffic impact assessment.
…
Landscaping should be provided in accordance with the relevant local planning scheme or relevant local policy or applicable regulations. In the absence of any such provisions, landscaping will be required along the street frontage of the development to a standard equal to that required or provided for on adjacent properties[.]
In relation to traffic impacts section 3.6 of Planning Bulletin 72/2009 provides that:
…
A child care centre should be approved only if it can be demonstrated that it will have a minimal impact on the functionality and amenity of an area and will not create or exacerbate any unsafe conditions for children and families using the centre, or for pedestrians or road users.
Local Planning Framework
City of Joondalup Local Planning Scheme No 3 (LPS 3)
The subject site is zoned 'Residential' with a coding of R80 under LPS 3.
Clause 9 of LPS 3 sets out the aims of the Scheme. The following aims are relevant:
(a)To cater for the diverse needs of the community by encouraging the provision of a range of housing, employment, business, recreation, transport and education opportunities;
…
(c)To protect amenity by ensuring that the use and development of land does not result in significant adverse impacts on the physical and social environment or the health and welfare of residents;
…
(f)To ensure that land uses are appropriately integrated with existing transport routes within the City; [and]
(g)To facilitate an effective and accessible transport network that caters for a range of alternatives, including public transport, cycling and walking[.]
The relevant objectives of the Residential Zone in cl 16(2) of LPS 3 are:
…
·To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
·To provide for a range of non-residential uses, which are compatible with and complementary to residential development.
'Child Care Premises' is a discretionary (D) use under LPS 3 in the Residential Zone. Pursuant to cl 18(2) of LPS 3 this means 'Child Care Premises' is not a permitted use unless the local government has exercised its discretion to grant development approval.
Child Care Premises Local Planning Policy (CCPLPP)
The relevant objectives of the CCPLPP are:
·To provide development standards for the location, siting and design of child care premises.
·To ensure that child care premises do not have an adverse impact on the amenity of surrounding areas, particularly residential areas.
The CCPLPP contains specific criteria and requirements in relation to the development of child care premises. These relevantly include:
5.1.1. Neighbouring Uses:
a.To minimise potential adverse impacts such premises may have on the amenity of residential properties, particularly as a result of noise and/or increased traffic, it is preferable to locate child care premises adjacent to non-residential uses such as shopping centres, medical centres or consulting rooms, schools, parks and community purpose buildings.
b.Where a child care premises is proposed to be located next to a residential property, the applicant must demonstrate that the proposal will not have an undue impact on residential amenity.
5.1.2 Road Hierarchy:
a.As child care premises can be reasonably high traffic-generators, they should be located on Local Distributor Roads in such a manner that they would not conflict with traffic control devices and would not encourage the use of nearby Access Roads for turning movements.
5.2. Parking and Access:
5.2.1. Car Parking Standard
a.Car parking is to be provided at a rate of one (1) space per employee plus five (5) spaces for 25 children or less.
5.2.2. Car Park Location and Design
a.Car park access and design is to be in accordance with the following requirements:
Design Element Development Requirement (a) Car park location (i) All car parking is to be provided on-site; verge parking is not permitted.
(ii) Car parks must be clearly visible from the street to encourage parking on-site instead of on the road verge.
(b) Car park design (i) Car parks shall be designed in accordance with Australian Standards AS 2890.1 and/or AS 2890.2 as amended from time to time. (c) Vehicle Access (i) Vehicle access should not be taken from District Distributor A Roads. Only under exceptional circumstances may vehicle access be considered from a District Distributor B or Access Road.
(ii) Vehicle access with separate entry and exit points is preferred (Type 1 on Figure 1). Alternatively, 'two-way' vehicle access (Type 2 on Figure 1) is required.
(iii) Where practicable, existing vehicle access points should be utilised instead of proposing new access points.
(iv) Vehicles are required to enter and exit the site in forward
gear.
… … 5.2.3. Bicycle Parking Standards
Use Class Employee/Visitor Bicycle Parking Child Care Premises 1 per 8 employees …
5.5 Landscaping:a.Landscaping is to be in accordance with the following requirements:
Design Element Development Requirement … …
(c) Shade trees (i) Shade trees shall be provided and maintained in uncovered car parks at the rate of one tree for every four car parking bays. (d) Verge area (i) The verge areas of all child care premises are required to be suitably landscaped, reticulated and maintained to discourage patrons from parking on the verge. The verge is not permitted to be paved or sealed as this would encourage its use for parking.
Signs Local Planning Policy (Signs LPP)
The Signs LPP provides guidance on the extent and location of signage to protect streetscapes, limit visual impacts and encourage well-designed and wellpositioned signs.
The Signs LPP provides that a wall sign in the Residential zone should be limited to 1.2m2 in area when associated with a non-residential building.
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