PACHAMAMA PTY LTD and CITY OF KALAMUNDA
[2017] WASAT 158
•14 DECEMBER 2017
PACHAMAMA PTY LTD and CITY OF KALAMUNDA [2017] WASAT 158
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 158 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:196/2017 | 28, 29 & 30 AUGUST 2017 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 14/12/17 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Conditional planning approval granted | ||
| B | |||
| PDF Version |
| Parties: | PACHAMAMA PTY LTD CITY OF KALAMUNDA |
Catchwords: | Town planning Development application Change of use from single house to child care premises Refusal Operation Monday to Friday Long day care of eight babies up to 18 months old After school care of up to 30 primary school aged children 2,000m² lot Residential zoning Existing child care premises on adjoining lot Other abutting lots residential Impact on the residential amenity of the locality Noise impact Traffic impact Interrelationship with neighbouring and nearby child care uses Local Government Child Care Policy Deferred commencement condition |
Legislation: | City of Kalamunda Local Planning Scheme No 3, cl 4.2.1, Table 3, Sch 1 Community Services (Child Care) Regulations 1998 (WA) Education and Care Services National Law (WA) Act 2012 Education and Care Services National Regulations 2012 (WA), reg 25(1)(e) Environmental Protection (Noise) Regulations 1997 (WA) Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67 Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 27(1), s 9, s 9(2), s 29(3) |
Case References: | Coastal Midwest Transport and City of Canning [2012] WASAT 202 Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297 Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council (1984) 47 SC (HL) 58 Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 |
Orders | The Tribunal makes the following orders:,1. The application for review is upheld.,2. The refusal of the City of Kalamunda is set aside and planning approval is granted for the proposed change of use to child care premises at No 59 (Lot 54) and associated work on No 61 (Lot 55) Coolinga Road, Lesmurdie, as shown on the Allerding and Associates plan Job Code: MCP COO GE dated 30 August 2017, subject to the following conditions:,(a) This approval commences from the date of an approval granted for the applicant's application for retrospective planning approval for the amended child care centre use of No 61 Coolinga oad currently before the City of Kalamunda, if such an approval is granted;,(b) The use of the land the subject of this approval as a Child Care Premises is conditional upon the operation of No 59 and No 61 Coolinga Road, Lesmurdie as a single planning unit under a single Services Approval pursuant to the Education and Care Services National Law 2012 (WA); ,(c) If a planning approval for child care premises consistent with the current use of No 61 Coolinga Road has not been granted within two years of the date of this decision, then the planning approval for the change of use at No 59 Coolinga Road shall lapse;,(d) Implementation of all recommendations under cl 5.2 of the Acoustic Assessment 1704043 dated 18 August 2017, prepared by ND Engineering Consulting Chartered Engineers, except that in respect to cl 5.2a(1) the hours of operation of the child care premises is to be as per condition (i) below and where there is any conflict between Figure 5.1 and the approved plan dated 30 August 2017, the approved plan is to prevail, plus the following additional measure:,A letterbox drop to all residences within 100 metres of No 59 and No 61 Coolinga Road, containing a complaints telephone number to address any noise issues that may arise;,(e) Implementation of all recommendations contained in the Bushfire Management and Evacuation Plan prepared by Bushfire Safety Consulting dated 17 April 2017;,(f) Engineering drawings and specifications relating to vehicle and pedestrian ways, and parking areas, being submitted to and approved by the City of Kalamunda;,(g) Vehicle access ways being suitably constructed, sealed, line marked and drained, to the satisfaction of the City of Kalamunda;,(h) The child care premises on 59 Coolinga Road is permitted to accommodate at any one time a maximum of:,(i) Eight infants up to 18 months of age;,(ii) Thirty school aged children between the ages of 7 years and 12 years; and,(iii) Five staff members;,(i) The hours of operation for the child care premises at No 59 Coolinga Road are limited to Monday to Friday inclusive between:,(i) 6.30 am and 6.30 pm for eight infants all year; and,(ii) 3.00 pm and 6.30 pm for the 30 school aged children, during school terms only (approximately 40 weeks of the year);,(j) Stormwater being disposed of onsite to the specification and satisfaction of the City of Kalamunda;,(k) Any new signage shall not contain any flashing, moving or pulsing lighting;,(l) A lighting plan for all external and security lighting is to be prepared and implemented to the satisfaction of the City of Kalamunda,(m) Measures being taken prior to the commencement of development works to ensure the protection of any vegetation on the site:,(i) not identified within the development footprint of the crossover and parking lot as delineated on the approved plans, or,(ii) earmarked for removal by the approved Bushfire Management Plan:,(n) The redundant crossover to Coolinga Road being removed and a landscape plan for the verge adjacent to 59 Coolinga Road being prepared and implemented to the satisfaction of the City of Kalamunda; |
Summary | This matter was concerned with the change of use from residence to child care centre on a 2,000m² lot in Coolinga Road, Lesmurdie and the operation of that use in conjunction with facilities associated with a child care centre on adjacent No 61 Coolinga Road which was the subject of an application to the City of Kalamunda for retrospective planning approval. ,The Tribunal found from consideration of the expert evidence that the proposed use would have an acceptable impact on local traffic and that the impact of noise would be reasonable subject to implementation to conditions including a buffer, erection of some fences as noise barriers, restrictions on numbers playing outside and no school aged children being cared for prior to school and during weekends and vacations. ,The Tribunal further found that the proposal could satisfy most requirements of the City's child care policy and there was a basis for an exemption from the locational requirements because of how the use would operate. The Tribunal was concerned that if an approval was not granted for the proposed child care use on No 61 then the proposed use of No 59 Coolinga Road not proceed. ,The Tribunal upheld the application and granted conditional approval. The conditions included a deferred commencement condition that stipulated that the proposed child care use of No 59 Coolinga Road were to commence only when and if the proposed application for use of No 61 was granted. If that approval was not granted within two years then the approval for No 59 Coolinga Road would lapse. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PACHAMAMA PTY LTD and CITY OF KALAMUNDA [2017] WASAT 158 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 28, 29 & 30 AUGUST 2017 DELIVERED : 14 DECEMBER 2017 FILE NO/S : DR 196 of 2017 BETWEEN : PACHAMAMA PTY LTD
- Applicant
AND
CITY OF KALAMUNDA
Respondent
Catchwords:
Town planning - Development application - Change of use from single house to child care premises - Refusal - Operation Monday to Friday - Long day care of eight babies up to 18 months old - After school care of up to 30 primary school aged children - 2,000m² lot - Residential zoning - Existing child care premises on adjoining lot - Other abutting lots residential - Impact on the residential amenity of the locality - Noise impact - Traffic impact - Interrelationship with neighbouring and nearby child care uses - Local Government Child Care Policy - Deferred commencement condition
Legislation:
City of Kalamunda Local Planning Scheme No 3, cl 4.2.1, Table 3, Sch 1
Community Services (Child Care) Regulations 1998 (WA)
Education and Care Services National Law (WA) Act 2012
Education and Care Services National Regulations 2012 (WA), reg 25(1)(e)
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 9, s 9(2), s 29(3)
Result:
Application for review allowed
Conditional planning approval granted
Summary of Tribunal's decision:
This matter was concerned with the change of use from residence to child care centre on a 2,000m² lot in Coolinga Road, Lesmurdie and the operation of that use in conjunction with facilities associated with a child care centre on adjacent No 61 Coolinga Road which was the subject of an application to the City of Kalamunda for retrospective planning approval.
The Tribunal found from consideration of the expert evidence that the proposed use would have an acceptable impact on local traffic and that the impact of noise would be reasonable subject to implementation to conditions including a buffer, erection of some fences as noise barriers, restrictions on numbers playing outside and no school aged children being cared for prior to school and during weekends and vacations.
The Tribunal further found that the proposal could satisfy most requirements of the City's child care policy and there was a basis for an exemption from the locational requirements because of how the use would operate. The Tribunal was concerned that if an approval was not granted for the proposed child care use on No 61 then the proposed use of No 59 Coolinga Road not proceed.
The Tribunal upheld the application and granted conditional approval. The conditions included a deferred commencement condition that stipulated that the proposed child care use of No 59 Coolinga Road were to commence only when and if the proposed application for use of No 61 was granted. If that approval was not granted within two years then the approval for No 59 Coolinga Road would lapse.
Category: B
Representation:
Counsel:
Applicant : Ms B Moharich
Respondent : Mr M Phillips
Solicitors:
Applicant : Moharich and More
Respondent : LSV Borrello Lawyers
Case(s) referred to in decision(s):
Coastal Midwest Transport and City of Canning [2012] WASAT 202
Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297
Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council (1984) 47 SC (HL) 58
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Introduction
1 These proceedings involved an application brought by Pachamama Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (the PD Act) for review of the decision of the City of Kalamunda (City or respondent) to refuse an application for change of use from single house to child care premises at No 59 Coolinga Road, Lesmurdie (No 59 or site).
2 After lunch on the first day, the Tribunal visited the site, the neighbouring child care premises and the surrounding streets. The Tribunal was accompanied by the parties' representatives and witnesses Ms Kristen McPhail, principal and sole director of the applicant, Mr Donald Veal, traffic expert, Mr Nicolo Della Gatta, noise expert and Mr Stephen Allerding, planning expert, called by the applicant and Ms Michelle Rogers, noise expert and Mr Andrew FowlerTutt, planning expert, called by the respondent.
Site and locality
3 The parties agreed on a description of the site and locality. In summary, it can be said that the site has an area of 2,021m², with regular boundaries. Frontage is 53 metres to Coolinga Road at the northern boundary tapering slightly over a depth of 40 metres to a rear width of about 46 metres. The existing house is located some 17 metres from the eastern boundary and 16 metres from the southern boundary. A shed and carport structure sit adjacent to the front boundary. The site includes some mature vegetation and has an ornamental pond fed by a natural spring in the south-west corner.
4 The site is situated on the low side of Coolinga Road falling to the south and west from a level of 179.02 Australian Height Datum (AHD) in the northeast corner to 171.64 AHD in the south-west corner. The Coolinga Road carriageway is about between 1 metre above the front boundary at the eastern end and about 4 metres higher at the western end.
5 The site has an existing house on its southern boundary and a house separated from its eastern boundary by a 3 metre wide public access way containing drainage infrastructure. Across the road to the north above Coolinga Road are more houses.
6 The lot abutting to the west, No 61 Coolinga Road, on the corner of Coolinga Road and Gladys Road (No 61), contains an existing childcare centre used for preschool and after school care, operated by the applicant.
7 To the west, No 36 Marri Crescent on the corner of Gladys Road (No 36) is a further childcare centre operated by the applicant for long day care of babies and preschool children. The lot abutting to the south of No 36 is a building used by a dentist on the ground floor with a residential apartment above.
8 Gladys Road is a local distributor road that runs generally north/south through Lesmurdie to Welshpool Road East to the south, an east-west regional road.
Child care activity on No 36 and No 61
9 The Tribunal considers it appropriate to set out at this point the difference between the planning approvals granted for No 36 and No 61 and the actual use made of those two lots by the applicant.
10 No 36 has planning approval granted in 2003 for child care premises for a maximum of 47 children from 7 am to 6 pm Monday to Friday only and for a total of 13 car spaces.
11 Notwithstanding the conditions of the planning approval, the applicant, which acquired the site in 2012, applied for and was granted by the Education and Care Regulatory Unit of the now Department of Local Government, Sport and Cultural Industries a licence for and has been operating on No 36 child care premises for up to 69 preschool children of between six weeks and four years, between 6:30 am and 6:30 pm, 52 weeks a year.
12 At No 61, acquired by the applicant in 2013, planning approval was granted for after school care for 10 children, between 3.30 pm and 6 pm, Monday to Friday and three car parking spaces.
13 Again, notwithstanding the terms of the planning approval, the applicant obtained a licence for and operates No 61 as an out of school care centre for 43 children who are said to be cared for between 6.30 am and 8 am and 3 pm and 6.30 pm during the school year. The children cared for before school are bused to their schools using the applicant's fleet of four Toyota Commuter Minivans and one Toyota Coaster minibus. They are collected by the buses for after school care and are then picked up by their parents or carers. These children are offered vacation care. At No 61 there is parking for the staff, parents collecting children and the fleet of buses.
14 The applicant's explanation was that it believed that the planning approval conditions were replaced by the licence provisions. Ms McPhail for the applicant, said that now that she has been properly advised, she is seeking to obtain retrospective planning approval for the actual use made of No 36 and No 61. To date, the Tribunal is not aware of any planning decisions having been made by the respondent.
Planning framework
15 The site is zoned 'Urban' under the Metropolitan Region Scheme and is zoned Residential with a density coding of R5 under City of Kalamunda Local Planning Scheme No 3 (LPS 3).
16 Under LPS 3 the objectives of the Residential zone are set out in cl 4.2.1 as follows:
• To provide primarily for single residential development whilst allowing for a range for a residential densities in order to encourage a wide range of housing types within the [City].
• To give consideration to group dwelling developments if the site is near amenities and can be integrated in the single residential environment.
• To facilitate a range of accommodation styles and densities to catering for all community groups inclusive of the elderly, young people in transition and the handicap. Such accommodation is supported where it is appropriately situated in proximity to other services and facilities.
• To encourage the retention of remanent vegetation.
17 In the Zoning Table of LPS 3 'Child Care Premises' has the designation 'A' which:
[m]eans that the use is not permitted unless the Council has granted planning approval after giving notice in accordance with Clause 9.4 (Advertise).
18 'Child care premises' is defined in Sch 1 of the LPS 3 as having:
... the same meaning given to the term in the Community Services (Child care) Regulations 1988.
19 Under the Community Services (Child Care) Regulations 1998 (WA) (which have now been repealed):
'child care premises' means premises specified in a licence or permit as premises in which a child care service may be provided[.]
20 As stated above, the licence is obtained from the Education and Care Regulatory Unit of the now Department of Local Government, Sport and Cultural Industries. The standards and requirements for child care premises and what is required in an application for a service approval are found in the Education and Care Services National Regulations 2012(WA) (ECSN Regulations).
21 Regulation 25 of the ECSN Regulations lists information required to be provided with an application for service approval and this includes:
(e) a copy of the planning permit for the proposed education and care service premises if a planning permit is required under the planning and development law of the participating jurisdiction.
22 Table 3 Parking Requirements of LPS 3 requires that for a Child Care Centre/Day Care there be:
1 bay per staff member, plus 1 bay for every 10 children allowed under the approval.
23 The Western Australian Planning Commission has published 'Planning Bulletin 72/2009 Child Care Centres', August 2009 (Child Care Planning Bulletin). However, the City has now adopted Local Planning Policy DEV56 - Family Day Care and Child Care Premises (LPP 56). LPP 56 addresses the items set out in the Child Care Planning Bulletin adapted for the City's district. LPP 56 includes the following:
1. Location Criteria
The following criteria will be assessed in relation to the appropriate locations for family day care centres and child care centres:
• Accessibility to Public Transport
• Avoidance of location on Arterial Roads and suitability from a traffic engineering point of view
• Avoidance of clustering with other non-residential land uses, unless abutting a commercial zone.
• Distribution between existing centres
• Walking distance to appropriate commercial, recreation or community nodes and education facilities
• Sufficient size and dimension to accommodate the development without affecting the amenity of the area
...
b) Child Care Premises
i. Centres are encouraged to locate near commercial, community, educational establishments, district centre, and public recreational areas, nearby to roads that have the demonstrated capacity to accommodate any potential additional traffic generated by the centre, or within walking distance to public transport routes.
2. Siting Criteria
The site area of the subject lot needs to be adequate for the provision of onsite car parking, pedestrian access, setbacks, play areas, and landscaping.
a) Inappropriate Sites
Although the land use may be permitted under the provisions of the Local Planning Scheme, Child Care Premises will generally not be supported in the following locations due to potential conflicts with residential amenity, traffic, safety, and parking access:
Child Care Premises
...
ii. In Residential zoned land, within 300m of another Child Care Premises;
...
10. Matters to be Considered
The following matters will be given consideration in the assessment of applications for child care premises and family day care development:
...
b) The impact of the proposed development on the amenity and character of residential or nonresidential areas, as viewed from a street, public space, or neighbouring property;
...
g) Whether support for the development application will set an undesirable precedent for similar sized surrounding lots; and
h) Comments received from affected adjacent property owners/occupiers.
...
12. Variations to the Policy
Any variation to development requirements will require the applicant to provide additional justification demonstrating how the proposal will not adversely affect adjoining property owners, the streetscape or the amenity of the locality, with particular reference to Clause 10 'Matters to be Considered' of this policy. The [City] may undertake consultation with adjoining affected property owners/occupiers during assessment.
24 LPP 56 also includes sections referring to lot size and site coverage, built form and streetscape, parking and traffic assessment, landscaping, signage, hours of operation, number of children, noise management and bushfire management. For most of these items there is no dispute between the parties but where there is a difference, these are addressed below.
25 The Planning and Development (Local Planning Schemes)Regulations 2015 (WA) (Planning Regulations 2015), under Sch 2, cl 67, list matters to be considered when determining a development application.
26 Clause 67(a) requires consideration of the aims and provisions of, in this matter, LPS 3 and cl 67(g) requires consideration of any local planning policy, the relevant policy being LPP 56, which is discussed below. Clause 67(b) requires consideration of orderly and proper planning and this also is discussed below.
27 Clause 67(m) refers to the compatibility of the use with its setting, including development on neighbouring lots and cl 67(n) refers to impact on local amenity. The impacts of the use are interrelated to the discussion below on LPP 56 and noise, which is relevant to cl 67(d) and traffic, referred to in cl 67(t). Clause 67(y) of the Planning Regulations 2015 refers to submissions received on the application. The statements from neighbours before the Tribunal are referred to below.
The proposal
28 The proposed child care centre at No 59, as described by Ms McPhail, would care for up to eight babies up to 18 months old from 6.30 am and 6.30 pm 52 weeks a year and for up to 30 children between seven and 12 years of age offering after school care between 3.30 pm and 6.30 pm Monday to Friday inclusive, during the school year. Under examination, Ms McPhail said there would not be vacation care for primary aged children at No 59 because 'babies need quiet'.
29 The child care centre would have a maximum of five staff members at any one time when operating at full capacity. Thirteen parking bays would be located at the front of the subject site adjacent to the existing shed with entry off Coolinga Road.
30 The existing dwelling would be renovated to create the nursery for the eight babies, separate internal recreation areas for the children as appropriate and facilities for them to be fed. The majority of existing vegetation on the site would be retained with some 770m² of outdoor play area set aside and the pond in the south-west corner developed and fenced for controlled recreation use. It is proposed that there be a gate between the pond area and No 61 and a gate in the boundary fence with No 61 for use by staff, children arriving for after school care and for parents collecting children via the parking area at No 61.
31 The staff room, internal storage and parking for buses would be at No 61. Administration for the centre and the kitchen for the preparation of food would be at No 36.
32 It is proposed that the babies would be delivered to and collected from the child care centre by parents. The children enrolled for after school care would be collected by the applicant's fleet of buses and dropped off at No 61 to then pass through the fence to No 59.
33 The applicant said No 36 and No 61 were required to have separate service approvals from the Education and Care Regulatory Unit because they were separated by Gladys Road. Ms McPhail said that, as No 59 and No 61 were adjoined and one was an extension of the other it was proposed they operate under the same service approval. The Tribunal would comment that the application for the service approval would, it is assumed, include any planning approval issued as required by reg 25(e) of the ECSN Regulations.
34 In respect to the proposal, the respondent made a submission that the proposal should be considered as a standalone development with access to Coolinga Road. Mr FowlerTutt said the application for approval was accepted as being for a selfcontained child care centre on No 59 because of the description on the form and the accompanying sketch showing only an annotated site plan for No 59. He said that was the basis for the report to the ordinary council meeting of 22 May 2017, but with the added note that the applicant operated existing child care premises at No 61 and No 36. The respondent also cited the references only to the change of use proposed for No 59 in the application for review and the agreed list of issues.
35 The applicant argued that the application must be considered as an addition to the existing child care centre at No 61. Reference was made to the text accompanying the application for planning approval which referred in the heading to '... augmenting capacity of existing Pachamama Activity Centre at 61 Coolinga Road to include 59 Coolinga Road'. That accompanying document stated that a reason for the application was that there was a waiting list for current places at No 61 and one solution was to 'expand the activity centre at 61 Coolinga Road, Lesmurdie into the adjoining property at 59 Coolinga Road'.
36 The Tribunal noted and the respondent acknowledged that the witness statements of Mr Veal, the traffic expert and Mr Della Gatta, the noise expert, included the use of No 61 in the analysis of the impact of the proposed use. Mr Allerding made reference to the interrelated use of No 61, as did Ms McPhail. The respondent acknowledged that its expert witnesses were aware of the applicant's view of the proposal.
37 The respondent when asked if it required more time to examine witnesses differently said it did not require the additional time. The Tribunal refers to s 27(1) of the SAT Act where it states:
Nature of review proceedings
The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
38 The Tribunal has noted the content of the documents supporting the application for development approval, the content of the witness statements of the experts called by the applicant, how the witnesses were examined and the opportunity the parties have had the to address the proposal set out above. The Tribunal considers the parties have been afforded procedural fairness. The Tribunal considers it has had before it the change of use proposed for No 59 supported by the use of necessary facilities that the applicant says can be provided on No 61, and it must be said that No 36, as set out above.
39 The applicant filed with the Tribunal a plan dated 30 August 2017 headed 'Site Plan Proposed Child Care Centre Extension Lots 54 and 55 (No 59 and 61) Coolinga Road, Lesmurdie' (Exhibit 27) which is annotated with the proposed changes to the crossover from Coolinga Road to the site and the changes in fencing, buffer areas, play areas and the improvements proposed for No 59 and No 61 as part of this application.
The refusal
40 The respondent refused the application for the following reasons:
1) The scale of the proposed childcare premises, in addition to the existing childcare facilities at Lot 19 (36) Marri Crescent and Lot 55 (61) Coolinga Road, Lesmurdie, exceeds what would reasonably be expected within the established residential area.
2) The location of the proposed childcare premises is not considered to meet all of the objectives recommended under Western Australian Planning Commission's Planning Bulletin 72/2009 – Child Care Centres.
3) The proposal is considered to have an undue impact on the amenity of the area due to increases in noise and traffic.
4) The add-hoc nature in which childcare facilities are proposed in the vicinity of the subject site is considered to be inconsistent with the principles of orderly and proper planning.
5) Having due regard to the nature of submissions received.
Issues
41 The applicant and respondent agreed on the issues to be considered and the Tribunal would summarise them as follows:
1) Whether the proposed change of use is acceptable given the applicant's existing child care centre adjacent at No 61and early education child care centre at No 36.
2) Whether the location of the proposed child care premises is acceptable having regard to:
a) LPS 3;
b) Planning Regulations 2015; and
c) LPP 56.
3) Whether the proposed child care premises will result in an undue and adverse impact on the amenity of the surrounding residential area due to:
a) noise; and
b) traffic.
4) Whether an approval of the proposed child care premises would be consistent with the principles of orderly and proper planning having regard to the location in a residential area and the existing child care premises.
5) Whether the proposed child care premises would be acceptable having due regard to the community's submissions received by the respondent.
Discussion
42 The Tribunal would add that in the considering the proposal, it has kept in mind the planning approvals currently in place for No 61 and No 36 and the actual use made of those two sites that the applicant says is now the basis of applications for retrospective planning approval lodged with the City.
The neighbours
43 The Tribunal heard first from the parties on the submissions filed by neighbours. The applicant filed five witness statements with two from the couple who sold No 59 to the applicant and now live elsewhere. One was from the longterm resident who lived above the dental surgery abutting to the south of No 36. He said that there had been no negative impact on him from the operation of No 36 and No 61.
44 Mr Robert Caliva, who lives on the lot to the south abutting No 59, expressed no objection to the proposal on the basis of how No 61 is operated and because of the landscaping proposed for No 59, including the relocation and reshaping of the pond adjacent to the common boundary so that it would not have as direct an impact on his property. He said he had no concern about current noise levels.
45 A further statement was from Ms Karen Zuks of 4 Gladys Road, abutting to the south of No 61. Her driveway adjoins the driveway with No 61. She said she had no negative impact from noise, traffic or parking associated with No 61. Ms Zuks appreciated the quiet from the centre not operating after hours.
46 These five witnesses were not called as the respondent indicated it did not wish to examine them.
47 The respondent filed four witness statements from neighbours who objected to the proposal. Two of these, Mr and Mrs Imrie of No 52 Coolinga Road, live opposite the site. Their reasons for objecting were similar to those of Ms Suzanne McLean and Mr Ian Beard of No 58 Coolinga Road, also opposite the site.
48 Ms McLean and Mr Beard each filed a statement and appeared before the Tribunal. They each raised concerns relating to traffic movement, and parking on Coolinga Road and the verges of Gladys Road which sometimes included the buses. This, they said, had an impact on Mr Beard's ability to negotiate his wheelchair along Gladys Road to the bus stop and premises in Welshpool Road.
49 Of particular concern was noise and all night lighting and extending the child care use to No 59 would exacerbate the impact on their amenity. Each also expressed concern about the operator ignoring the planning approvals and enrolling significantly greater numbers including for preschool care and vacation care.
50 The Tribunal noted that Mr Veal had observed cars parking on the verge, when space was available for parking on site at No 61. The Tribunal noted the objectors' concern that the annoying aspects of the operation of the existing child care centres would be exacerbated by the proposal. The comments of the neighbours have been weighed against the qualitative evidence of the experts discussed below.
Submission from the applicant
51 The applicant called Ms McPhail. She explained her philosophy of nature based child care and how she implemented it in the programs at No 36 and No 61. Ms McPhail explained how the proposal for No 59 would operate, as set out under the discussion of the proposal above. Ms McPhail also explained how she would deal with any concerns should the neighbours raise them with her or her staff.
52 The Tribunal has noted the applicant's commitment to the implementation of a nature based child care program. The Tribunal would comment, however, that planning approvals run with the land. At some future date, the applicant will no longer be operating the use at No 36 and No 61, and, if approved, No 59. If the child care activity were to continue beyond that date, how the child care centres are operated within the planning approvals and licences would be up to any new operator. The Tribunal considers that the currently implemented nature based child care, while it has received commendation from a number of sources, is not of itself a basis for the granting of any planning approval.
Noise
53 Mr Della Gatta initially prepared for the applicant an acoustic assessment of the proposed child care centre at No 59. A revised acoustic assessment was then prepared which had included noise generated by the existing two child care centres at No 61 and No 36 together with the modelled noise for the proposed child care centre at No 59. The assessment noted in particular the level of noise from Welshpool Road and at certain times of the day from Gladys Road.
54 It was agreed between Mr Della Gatta and Ms Rogers that noise from the proposed use would comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Environmental Noise Regulations) during the daytime periods 6.30 am to 6.30 pm Monday to Friday, subject to the implementation of particular recommendations. The recommendations included a 2,100 millimetre high Colorbond fence along the western boundary of No 59 for some two thirds of its length, a 2,100 millimetre high Colorbond fence along the eastern and southern boundaries of No 59 and a barrier 2,100 millimetres high measured from the downslope side along the southern boundary of the carpark adjacent to the play area comprising the retaining wall with a Colorbond or timberlap fence on top. Also recommended was a setback of not less than 6 metres from the southern boundary to any active play area within No 59 with the buffer area to comprise only landscaping and other features such as vegetable gardens, a limit on the number of children in the outside play area at any one time and no music played outdoors.
55 The Tribunal has noted that the proposed use would comply with the Environmental Noise Regulations. However, Ms Rogers commented that some would find annoying the pitch of children actively playing outside with some yelling and screaming. Ms Rogers also pointed out that there would be annoyance created by the impulsive noise of parents' vehicles opening and closing doors from 6.30 am and referred to Land Alliance Pty Ltd and City of Belmont[2005]WASAT100 at[39] which found that annoyance from such activity can have an impact on amenity in a planning sense, even when a use would comply with the Environmental Noise Regulations.
56 The applicant identified that there may be only two or three vehicles arriving between 6.30 am and 7 am. The experts considered that the applicant implementing management measures may assist in addressing these concerns but it would be difficult to determine what would remain annoying to particular individuals.
57 There was also discussion of the applicant being open to approaches if neighbours had concerns about the manner in which children were playing and where they were playing on No 59, so that these could be mediated, in which the City would assist. It was the respondent's submission that, other than the applicant behaving responsibility in this regard, if the development complied with the Environmental Noise Regulations there were no other formal steps that the City could take.
58 The Tribunal has formed the view that noise can be reasonably managed subject to implementation of the list of recommendations at cl 5.2 of ND Engineering's Acoustic Assessment 1704043 dated 18 August 2017, for the proposed extension to child care use at No 59 and No 61.
Traffic
59 One expert in traffic, Mr Donald Veal, appeared before the Tribunal, called by the applicant. Mr Veal prepared a Traffic Impact Assessment2016 to accompany the application for development approval that modelled potential traffic impact of the use. Mr Veal refined his report in June 2017 incorporating information obtained in March 2017 from observations of traffic and parking at No 36 and No 61 and the local roads. To note was that Mr Veal's report was made having regard to the actual use made of No 36 and No 61 and not the numbers of children and operating hours for which the applicant has planning approvals. Mr Veal's survey found that some parents were parking on verges near the two operating centres when spaces were available on the site.
60 The report referred to the AM peak during which there was a queue of traffic in Gladys Road waiting to enter Welshpool Road. Gladys Road has about 4,189 vehicles per day and about 400 in the morning peak. Mr Veal's concluded that the potential traffic of about 100 vehicles per day generated by the proposed use on No 59 would have no discernible impact on traffic flow in both Coolinga Road and Gladys Road. The Tribunal noted that there was no evidence put forward to dispute this conclusion. The Tribunal did note that the operation of the proposed use would rely on the after school care children arriving by bus at No 61 and walking through the gate in the fence to No 59. Some children would be collected from No 59 by parents parking at No 61. This had the effect of reducing the use of Coolinga Road for these purposes.
61 A further aspect of traffic movement discussed by the parties was the potential impact of vehicles delivering babies to No 59 from the proposed 6.30 am opening time. Mr Veal said his research using the standard Road Traffic Authority New South Wales statistics and examination of the drop off records for the 12 babies of No 36, revealed that babies arrive over an extended period with three to four car movements per hour for 12 babies. The modelling suggested that up to two car movements delivering children to No 59 plus arrival of any staff parking on the site would occur prior to 7 am.
62 On balance, the Tribunal concluded that the arrival of this small number of vehicles at that time of the morning would not of itself be a sufficient basis to refuse the application.
63 The Tribunal is concerned however, that if No 59 and No 61 were to be disposed or to operate separately, then No 59 would have to replicate the parking and bus movement arrangements that it is proposed now be shared with No 61. This it is considered might well change how traffic movement and vehicle noise have an impact on amenity on this part of Coolinga Road.
LPS 3 and LPP 56
64 As stated above, the respondent has now adopted LPP 56. The planning witnesses addressed the draft of LPP 56 available at the time of the hearing. The Tribunal is of the view that the draft and adopted versions of LPP 56 are essentially the same in respect of this proposal.
65 There was no dispute that, as required to be considered under LPP 56, the building proposed to be converted to the child care use would retain its residential scale and character, that sufficient parking was provided and No 59 satisfied lot size and site coverage requirements so that the outdoor play area would be sufficient to satisfy the ECSN regulations.
66 As required, a bushfire management plan was prepared. Further, the noise and traffic requirements of LPP 56 have been addressed as set out above. The Tribunal would add that the noise management plan and traffic impact assessments study provided by the applicant required fencing and bus student set down and parking to be provided on No 61. Items such as signage and landscaping, particularly of verges could be the subject of conditions if an approval were granted.
67 One item about which there was disagreement was the requirement at LPP 56, cl 1(b)(i), in which child care centres are 'encouraged' to locate near commercial, community, educational establishments, district centre, and public recreational areas.
68 A second area of disagreement between the parties was LPP 56, cl 2(a)(ii), which lists as inappropriate, the siting of a proposed child care centre within 300 metres of an existing child care premises in Residential zoned areas.
69 Mr TuttFowler said that use of No 59 as a child care centre failed both of these locational requirements and the application should be refused. In his opinion, users of a child care centre should be able to benefit from the proximity to the other uses listed in the locational requirements. In addition, requiring that a new child care centre be at least 300 metres distance from an existing centre, will result in the local community being better served than if all child care centres adjoined each other. It was his view that locating yet another child care centre in this locality would result in cumulative impact that would have an adverse impact on local residents.
70 The proposed use is not near any of these land uses. The Tribunal does not agree with the applicant that the presence of the dental surgery, while a commercial use, does not create a commercial area. The Tribunal has formed the view, however, that this proposal can be considered as a variation to LPP 56 as provided for in cl 12.
71 As stated above, the Tribunal has accepted that the proposal before it is in effect an extension of the child care centre at No 61, and at No 36. The use would rely upon and make use of infrastructure and facilities at No 61. If the proposed use were to be a discrete standalone child care centre, the Tribunal would have afforded the siting and locational criteria of LPP 56 considerable weight. That would be because of the duplication of the neighbouring support facilities and the likely different pattern of vehicle and people movement would potentially have a different impact on the residential neighbours.
72 In respect to the proposed use of No 59, the design and operational considerations, particularly in respect to noise and traffic, are considered to outweigh the siting criteria because of the proposed interrelationship with No 61. The provisions of LPP 56, including those relating to the impact on the amenity of neighbours, noise and traffic, as they affect the proposed development have been considered in this light.
73 Mr Fowler-Tutt explained how he considered the cumulative impact of adding the use of No 59 to existing child care centre would be in conflict with the amenity considerations under the Planning Regulations and LPS 3. Mr Allerding concentrated on the benefit to local parents of having the range of child care needs available at one location.
74 The Tribunal noted that the proposed use would satisfy some of the local demand for child care places, but would treat with caution the solution of buying yet another residential lot in the locality to provide additional child care places. In this matter, because of the interrelationship of No 59 and No 61, the limited hours of care of primary aged children and the fact that the development only proposes internal renovation of the existing building with no additional structures, there is a case for supporting the expansion of activities proposed.
Orderly and proper planning
75 From S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017]WASC191 at[137] the Tribunal, with respect, would summarise that orderly and proper planning is concerned with the exercise of discretion, not just with having regard to the relevant statutory requirements, policies and guidelines, but also to relevant facts and circumstances. What constitutes orderly planning is an objective exercise of judgment about what is suitable and appropriate in each case.
76 As pointed out by Mr Fowler-Tutt, an 'A' designation in the zoning table of LPS 3 means any Residential zoned lot can theoretically be considered as a site for a child care centre. He considered that because of conflict with the location requirements of LPP 56, the development was ad hoc and not consistent with orderly and proper planning.
77 In this matter, as set out above, the proposed use has been examined against the standards and requirements of LPS 3, LPP 56 and the matters required to be considered under cl 67 of the Planning Regulations. The Tribunal has adjudged that the proposal could be a suitable use for the locality because, in this instance, the location adjacent to the facilities of No 61, topography and the operation of the use. The use is not considered to be ad hoc. The Tribunal has concluded that the proposal is consistent with the requirements of orderly and proper planning.
Conclusion
78 The Tribunal noted that the applicant said it had made separate applications for retrospective planning approval for changes to the hours of operation, the type of child care offered and parking arrangements for both No 61 and No 36. Mr FowlerTutt said he was aware the applications had been received and were being processed. The Tribunal has no reason to believe other than the applications will be determined in due course by the respondent fulfilling its statutory obligations under LPS 3.
79 The Tribunal has no opinion on whether the applications for No 61 and No 36 have any planning merit. Any comment in this finding on No 59 should not be construed as either supporting or opposing those applications. If the application for No 61 is refused then the proposed development for No 59 should not proceed. This is because the proposed use of No 59 was premised on having available facilities and infrastructure on No 61. The facilities proposed to be used on No 36 might be able to be replicated should the need arise. Ms McPhail also said that if the required support facilities available at No 61 were to be provided at No 59 the site could only accommodate approximately 20 children and that would not be financially viable.
80 The Tribunal has formed the view that the proposed use of No 59 would only be acceptable if those other facilities were available and that cannot be known until a decision is made on the applications for No 61 and No 36.
81 The Tribunal would repeat the comments it made above. If a discrete child care centre were proposed on No 59 for the number and age of children proposed and necessarily including the bus drop off and parking, sound proofing, service vehicle deliveries, internal storage space and staff facilities that are otherwise being provided on neighbouring lots, then the Tribunal is of the view that the consideration of the merit of such a proposal would be quite different. The Tribunal would suggest that there might be a different impact on neighbouring houses in Coolinga Road from a discrete application that includes these additional features. This would require a fresh analysis of the impact of such a development, including against the requirements of LPP 56.
82 The Tribunal has had before it, however, an application for child care use on No 59 in conjunction with the use of facilities and some additions to infrastructure on No 61. The Tribunal is concerned, however, that the proposed use seeks to make use of the current use made of No 61, not the particular use that has been granted planning approval on No 61. The Tribunal is concerned that it is being asked to consider, for example, the addition of parking bays to No 61, the parking of buses at No 61 and the use of No 61 as a pick up and drop off point for children, when it has not been determined whether the use of No 61 is appropriate for those activities. The Tribunal is concerned not to be making a decision that might be interpreted as an endorsement of the use of No 61 that is more properly the subject of the separate application before the City. The proposed use of No 59 can only properly be considered as an 'augmentation' of the use of No 61, if it first determined that the proposed use of No 61 has planning merit and can be endorsed, and this is yet to occur.
83 The Tribunal is conscious of the objectives of the Tribunal set out at s 9 of the SAT Act. These include:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
…
84 The Tribunal has found merit in the proposed use at No 59, but only if No 61 is approved. The Tribunal might dismiss the application so that in the future a fresh application for planning approval for the proposed use of No 59 can be made if, and when, the use of No 61, and No 36, is approved. This would require cost to both the applicant and the respondent when repeating the process.
85 This leads to consideration of how any approval of the proposed use of No 59 might be allowed. At present, whether the use at No 59 proceeds is dependent upon some future event that is now out of the applicant's hands.
86 In considering this the Tribunal brought to mind a circumstance similar to what is known in other jurisdictions as a Grampian condition, from the decision approved by the House of Lords in Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council (1984) 47 SC (HL) 58. It is not unusual that a planning approval be conditional upon an action by a third party if it is clear that the third party is most likely to be taking that action in the immediate future. Simple examples might be a sewer extension soon to be completed, traffic lights installed, median strip extended. The evidence of Ms McPhail and Mr FowlerTutt is that the City has received formal applications for retrospective planning approval for No 61 and No 36, and, depending upon being satisfied it has sufficient information and the length of any advertising, the City has the statutory obligation under LPS 3 to determine the applications within 60 days, or they are deemed refused. It follows of course, that there is a right to have any decision of the respondent reviewed by the Tribunal, and it would not be until that process is exhausted, if it is pursued, before it can be known if an approval has been granted. This is all to occur within what can be described as the near future, and certainly well within the two year period within which a planning approval remains valid.
87 The Tribunal has concluded that, in the circumstances of this matter, there may be imposed what can be termed, a deferred commencement condition; that is, a decision must first be made on the application for use of No 61, and if it is granted an approval, then the approval for the proposed child care centre use of No 59 is enlivened. A similar type of condition has been used elsewhere, although elsewhere the decision necessary was to be made by a third party, while in this matter, the decision on the other applications is to be made by the respondent fulfilling its statutory obligations under LPS 3. Examples of a deferred commencement condition can be found in Coastal Midwest Transport and City of Canning [2012] WASAT 202 at [78] [80], Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001]NSWLEC297, at[12].
88 The Tribunal considers such a condition consistent with the objectives at s 9(2) of the SAT Act and within the ambit of s 29(3), of the SAT Act.
89 In these circumstances, the Tribunal has decided to allow the application and grant conditional approval for the proposed child care use, but effective only when, and if, the retrospective application for child care use of No 61 becomes effective. An approval could be conditioned accordingly.
Conditions
90 The applicant filed a response to the respondent's schedule of conditions that might be imposed. Most of these were not controversial. As mentioned above, the applicant did provide a revised plan that it would want to be approved, and recommended a condition that the use of No 59 and No 61 operate as a single unit under a single services approval issued by the Education and Care Regulatory Unit, as a response to concern that the two lots might be disposed of separately.
91 The noise assessment recommended a list of conditions and these essentially were agreed and the Tribunal considered them appropriate to the child care centre operating as proposed. The parties left the matter of landscaping to the Tribunal and it is considered a verge landscaping condition is required because of the removal of the redundant crossover, and while the topography assists, to break up further the glimpses of the fences to be erected. The neighbours raised concern about security lighting and the Tribunal considers this should be managed.
92 Significantly, the Tribunal considered necessary a deferred commencement condition, as discussed under the conclusion above.
Orders
The Tribunal makes the following orders:
1. The application for review is upheld.
2. The refusal of the City of Kalamunda is set aside and planning approval is granted for the proposed change of use to child care premises at No 59 (Lot 54) and associated work on No 61 (Lot 55) Coolinga Road, Lesmurdie, as shown on the Allerding and Associates plan Job Code: MCP COO GE dated 30 August 2017, subject to the following conditions:
(a) This approval commences from the date of an approval granted for the applicant's application for retrospective planning approval for the amended child care centre use of No 61 Coolinga Road currently before the City of Kalamunda, if such an approval is granted;
(b) The use of the land the subject of this approval as a Child Care Premises is conditional upon the operation of No 59 and No 61 Coolinga Road, Lesmurdie as a single planning unit under a single Services Approval pursuant to the Education and Care Services National Law 2012 (WA);
(c) If a planning approval for child care premises consistent with the current use of No 61 Coolinga Road has not been granted within two years of the date of this decision, then the planning approval for the change of use at No 59 Coolinga Road shall lapse;
(d) Implementation of all recommendations under cl 5.2 of the Acoustic Assessment 1704043 dated 18 August 2017, prepared by ND Engineering Consulting Chartered Engineers, except that in respect to cl 5.2a(1) the hours of operation of the child care premises is to be as per condition (i) below and where there is any conflict between Figure 5.1 and the approved plan dated 30 August 2017, the approved plan is to prevail, plus the following additional measure:
A letterbox drop to all residences within 100 metres of No 59 and No 61 Coolinga Road, containing a complaints telephone number to address any noise issues that may arise;
(e) Implementation of all recommendations contained in the Bushfire Management and Evacuation Plan prepared by Bushfire Safety Consulting dated 17 April 2017;
(f) Engineering drawings and specifications relating to vehicle and pedestrian ways, and parking areas, being submitted to and approved by the City of Kalamunda;
(g) Vehicle access ways being suitably constructed, sealed, line marked and drained, to the satisfaction of the City of Kalamunda;
(h) The child care premises on 59 Coolinga Road is permitted to accommodate at any one time a maximum of:
(i) Eight infants up to 18 months of age;
(ii) Thirty school aged children between the ages of 7 years and 12 years; and
(iii) Five staff members;
(i) The hours of operation for the child care premises at No 59 Coolinga Road are limited to Monday to Friday inclusive between:
(i) 6.30 am and 6.30 pm for eight infants all year; and
(ii) 3.00 pm and 6.30 pm for the 30 school aged children, during school terms only (approximately 40 weeks of the year);
(j) Stormwater being disposed of onsite to the specification and satisfaction of the City of Kalamunda;
(k) Any new signage shall not contain any flashing, moving or pulsing lighting;
(l) A lighting plan for all external and security lighting is to be prepared and implemented to the satisfaction of the City of Kalamunda
(m) Measures being taken prior to the commencement of development works to ensure the protection of any vegetation on the site:
(i) not identified within the development footprint of the crossover and parking lot as delineated on the approved plans, or
(ii) earmarked for removal by the approved Bushfire Management Plan:
(n) The redundant crossover to Coolinga Road being removed and a landscape plan for the verge adjacent to 59 Coolinga Road being prepared and implemented to the satisfaction of the City of Kalamunda;
I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, SENIOR SESSIONAL MEMBER
0
4
9