Pearson and Anor and City of Fremantle
[2006] WASAT 257
•7 SEPTEMBER 2006
PEARSON & ANOR and CITY OF FREMANTLE [2006] WASAT 257
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 257 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:197/2006 | 17 AUGUST 2006 | |
| Coram: | MR J ADDERLEY (SESSIONAL MEMBER) | 7/09/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID PEARSON SUSAN DAWN PEARSON CITY OF FREMANTLE |
Catchwords: | Change of use Short term accommodation Deemed refusal Residential amenity Mixed use Disadvantage of location Management policy |
Legislation: | City of Fremantle Town Planning Scheme No 3, cl 16, cl 77 Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia 2002 |
Case References: | Nil Nil |
Orders | 1. The application for review of the City of Fremantle's decision to defer determination of the proposal for change of use of the premises at Unit 7, 15 Essex Street, Fremantle from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is dismissed.,2. The application for change of use of the premises at Unit 7, 15 Essex Street from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PEARSON & ANOR and CITY OF FREMANTLE [2006] WASAT 257 MEMBER : MR J ADDERLEY (SESSIONAL MEMBER) HEARD : 17 AUGUST 2006 DELIVERED : 7 SEPTEMBER 2006 FILE NO/S : DR 197 of 2006 BETWEEN : DAVID PEARSON
- SUSAN DAWN PEARSON
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Change of use Short term accommodation Deemed refusal Residential amenity Mixed use Disadvantage of location Management policy
Legislation:
City of Fremantle Town Planning Scheme No 3, cl 16, cl 77
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia 2002
(Page 2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr S Bain
Solicitors:
Applicants : Self-represented
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary
1 An application for a change of use of a residential apartment, in the Port Mill complex in Essex Street, Fremantle, in order to allow short term residential accommodation, was deferred by the respondent pending preparation of a town planning policy to regulate short term accommodation in the City.
2 In the absence of a decision by the respondent within 60 days, the applicants sought a review of a purported deemed refusal of the proposal.
3 The Tribunal heard evidence from the respondent as to the incompatibility of short term accommodation with the residential amenity of the Port Mill complex.
4 The Tribunal heard evidence from the applicants as to the relationship of the Port Mill complex, with surrounding commercial land uses, and the expectation from the original approval of the development that the premises would be subject to noise and patron behaviour not normally associated with a typical residential environment. The applicants advised of the substantial incidence of short stay accommodation in Fremantle. The applicants stated that the proposed use had operated at the premises for one year. One complaint had been lodged with the Strata Council of Management.
5 The Tribunal acknowledged the importance of protecting residential amenity in the Port Mill complex and took particular note of several objections to the proposal that recorded an incident of antisocial behaviour by guests staying at Unit 7 on a short term basis. The Tribunal was also mindful of the particular location of Unit 7 in relation to other units around the central courtyard and the prevailing access arrangements from Essex Street and was not satisfied that the position of the unit at the rear corner of the complex was conducive to the conduct of short stay tenancies without significant risk to the amenity of other residents in the complex. Further, the Tribunal was not satisfied as to arrangements by the applicants for responsible and effective management practices to govern the day to day conduct of short term accommodation at Unit 7.
6 The application for review of the respondent's decision was dismissed.
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Introduction
7 This is an application for review of the decision of the respondent not to grant planning consent for the use of Unit 7, 15 Essex Street, Fremantle for the purposes of short term residential accommodation.
8 Application for the proposal was lodged with the respondent on 15 March 2006.
9 The proposal was considered by the respondent on 3 May 2006, whereupon it was resolved that the application should be deferred pending preparation by the respondent of a report pertaining to the establishment and management of short term residential accommodation.
10 Following the elapse of 60 days from the date of the original application without further notification by the respondent as to determination of the matter, the applicants presumed a deemed refusal of the proposal by the respondent and lodged an application for review with the State Administrative Tribunal which was registered on 15 June 2006.
The proposal
11 The application to use Unit 7, 15 Essex Street for short term accommodation needs to be understood in physical and historical context.
12 Unit 7, 15 Essex Street is a residential apartment within a two and three storey complex of strata titled residential and commercial tenancies situated in the central business area of Fremantle. The complex is also known as the Port Mill in recognition of its previous function as a flour mill. There are 15 units in the complex ranged around a gated courtyard accessed from Essex Street. Several of the units located towards the Essex Street frontage are commercial tenancies. Unit 7 is located at the rear corner of the property. The Port Mill "bed and breakfast" business operates from Unit 13 (also described as Unit 3, 17 Essex Street) which is situated towards the front of the property. The Tribunal is also informed, having regard to the documentation before it on this matter, of an application for similar approval for an on going short term residential accommodation use of Unit 3, 15 Essex Street which is situated across the courtyard from the Port Mill Bed and Breakfast at the front of the complex. An undercroft car park is accessed via a ramp from Essex Street with provision for one car parking bay for each tenancy.
13 The character of the complex is partly derived from its location in the busy commercial and entertainment district of central Fremantle. The buildings also derive much of their character and architectural heritage
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- qualities from the original 150 year old limestone flour mill structure which was converted to the present day residential and commercial use of the complex in 1993.
14 The location of Unit 7, 15 Essex Street is zoned Central Business under the City of Fremantle Town Planning Scheme No 3 (TPS 3).
15 The expression "short term (or short stay) accommodation" refers to the letting of premises to tenants for short periods of temporary residence.
16 The applicants have apparently rented Unit 7 to other parties for short term accommodation for a period of about one year.
17 The respondent wrote to the applicants on 6 February 2006 advising that planning approval is required for "short term accommodation" under TPS 3. The respondent reiterated this advice to the applicants on 15 March 2006.
18 Under TPS 3, the respondent contends that "short term accommodation" falls within the scheme definition of the use class "Residential Other" which is a use class that is not permitted in the Central Business zone unless consent is granted by the Council.
19 The application to allow short term accommodation at Unit 7 is therefore a change of use from "Residential" to "Residential Other" as required by TPS 3.
Town Planning Scheme and policy provisions
20 As described above, the respondent's TPS 3 pertains to the premises in question.
21 Again, as described above, "short term accommodation" falls within the use class "Residential Other" under TPS 3, which is defined as:
"The occupancy of a residential building or of a welfare hostel or home excluding a Residence - Private."
22 The term "residential building" needs to be clarified in relation to this definition. It is further relevantly defined under the Residential Design Codes of Western Australia 2002 to mean:
"A building or portion of a building ... used for the purpose of human habitation ... temporarily by two or more persons ..."
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23 "Residential Other" is a use class not permitted in the Central Business zone unless consent is granted by the Council.
24 The respondent has advised that cl 16 of TPS 3 requires that the responsible authority for determination of planning applications shall have regard to the orderly and proper planning of the locality, the preservation of amenities of the locality and to matters listed under cl 77 of the Scheme.
25 Clause 77 of TPS 3 lists a range of matters which should be taken into account by the responsible authority in determining planning applications. The following matters are most pertinent to this particular application for a change of use from Residential to Residential Other in order to allow short term accommodation:
"(a) the intensity and nature of the proposed use, including its environmental impact by way of emissions, illuminations and hours of operation;
…
(f) the plot ratio, site coverage, setbacks, height, landscaped area and parking accommodation;
…
(q) the position of signs;
…
(t) any other matters."
26 The respondent has adopted a policy titled the "Fremantle West End Conservation Area Policy" which provides at s 4.2.2(b) that:
"The Council will encourage the development of the West End Conservation Area as an area of mixed uses (people uses generally) where office, service uses, residential and retailing activities are integrated with entertainment and tourist accommodation facilities."
The decision of the respondent
27 Following receipt of the application for the change of use of Unit 7, 15 Essex Street from "Residential" to "Residential Other", the respondent solicited public comment resulting in six submissions from proprietors of other units within the Port Mill complex.
(Page 7)
28 The submissions, as summarised in a report to the respondent's planning committee, amounted to "significant objection to the application" citing concerns as to "security, noise and the behaviour of short term tenants".
29 Following consideration of the planning committee report, the respondent, on 3 May 2006, resolved to defer the application for a period of three months pending the preparation of a report pertaining to the establishment and management of short term accommodation in Fremantle.
The respondent's argument
30 The respondent's argument was presented in the text of the witness statement of Mr S Bain, a qualified and experienced town planner.
31 Mr Bain argued that the applicants had not addressed relevant matters that should be taken into consideration in determining the proposal as identified at cl 77 of TPS 3.
32 Specifically, Mr Bain argued that the proposed use manifests a different nature to a residence in that the occupants are short term and most likely on holidays. This circumstance would tend to a likelihood of occupants arriving and leaving at different times, having parties or visitors and generally giving less consideration to the needs of residents in other units. The impacts of noise, anti-social behaviour and security breaches will be unable to be controlled in a timely and effective manner.
33 Mr Bain advised that only one car parking bay was provided to service the needs of the unit and that consequently a deficiency may occur in the event of visitors attending the premises, although Mr Bain subsequently accepted that street parking was available to service visitor parking needs and that as often as not short term tenants may not rely on car access at all.
34 The proposed use is likely to require signage. Mr Bain contended that signage will impact on the pleasant entry to the complex.
35 Mr Bain noted that the submissions objecting to the application identified concerns with security, noise, inappropriate behaviour and car parking.
36 Mr Bain concluded that the proposed use would adversely affect the expected amenity of the complex which is otherwise configured to reflect
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- commercial activities oriented to Essex Street whilst residential use and quieter amenity expectations are located behind and within the complex.
37 Mr Bain observed that land use conflicts associated with short stay accommodation are normally dealt with by the physical separation of land uses or such uses being housed within purpose built facilities.
The applicants' argument
38 Mr D Pearson, representing the applicants, tendered his witness statement arguing in support of the proposal.
39 Mr Pearson referred to the respondent's documentation noting that the officer's report to the planning committee had supported the application as all regulatory requirements had been met. Mr Pearson concurred with the report, noting and agreeing with the opinion of the author, that the Strata Council of Management was the appropriate body to deal with amenity complaints.
40 In response to the respondent's argument that the behaviour of short term tenants may cause a loss of residential amenity, Mr Pearson advised the Tribunal that only one complaint about the conduct of tenants at Unit 7 had been made to the Strata Council of Management during the year in which the unit has been rented for short term accommodation. Mr Pearson compared short term rental circumstance whereby the majority of guests would be married couples with or without children, with the circumstance where any owner can let their apartment to five backpackers on a six month lease without the need for planning permission.
41 Mr Pearson argued that issues as to car parking and signage are spurious. No additional signage is needed or required. One car parking bay is more than adequate, observing that holiday makers would be highly unlikely to use more than one car.
42 On the question of potential noise and inappropriate behaviour, Mr Pearson cited the original approval of the complex which warns purchasers of residential units that the property is in close proximity to established commercial and entertainment premises and is therefore subject to noise and patron behaviour not associated with a typical residential environment. In this regard purchasers must recognise the noise, traffic and other factors which constitute normal city centre activity.
(Page 9)
43 Mr Pearson stated that to his knowledge there are 400 short term residential accommodation units, including ones on the respondent's website, that do not have planning permission.
Analysis
44 The respondent's argument is centred on the proposition that the change of use from "Residential" to "Residential Other" in order to allow short term accommodation tenancies at Unit 7 will lead to a deterioration of residential amenity in the Port Mill complex.
45 Reasons offered by the respondent leading to a conclusion of reduced amenity, include argument that the behaviour of short term tenants is not compatible with the interests of permanent residential tenants occupying the remainder of the Port Mill complex. Objections to the application signify a level of concern by other residents of the complex as to potential noise nuisance and the possible compromise of security.
46 The applicants countered with argument to the effect that there should be a reasonable expectation by residents of a degree of noise and lively behaviour associated with the location of the Port Mill complex in the heart of the commercial and entertainment area of the Fremantle CBD.
47 The applicants further stated that in the year of operation of short term tenancies at Unit 7, only one complaint had been registered with the Strata Council of Management. The applicants argued that the strata body was the appropriate vehicle to regulate residential amenity issues.
48 The Tribunal took note of the amenity arguments and accepted that they are central to the consideration of this application for change of use. In this regard, the Tribunal accepts the argument of the respondent that there may be circumstances that arise where short term residents behave in a manner inconsistent with the interests of permanent residents. However, the Tribunal also acknowledges that a practical and effective management arrangement can overcome or at least minimise the incidence of possible anti-social behaviour associated with short stay residents. In this regard, for example, the operation of the bed and breakfast business at Unit 13 appears to signify a tolerable form of short stay residential in the complex. Additionally, the apparent tolerance over several years of short stay accommodation at Unit 3 without cause for complaint also seems to indicate that effective management arrangements are important.
49 It is important though to recognise that there is another factor of relevance in these examples, and that is location. Both the bed and
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- breakfast business at Unit 13 and the occurrence of short stay accommodation at Unit 3 are advantaged over Unit 7 by their positions near the Essex Street frontage of the complex which is already characterised by commercial activities. Most importantly, this orientation towards the front of the complex allows access and egress without guests passing other residential apartments in the courtyard. By comparison, it could be considered that the inherently quieter residential environs of Unit 7 at the rear of the complex will be more sensitive to heightened noise nuisance and more difficult to access unobtrusively if guests are traversing the full length of the courtyard to gain access, particularly at night.
50 The Tribunal was made aware of the substantial incidence of short term residential accommodation advertised in the City of Fremantle, some of which allegedly operate without planning consent. Further, it was evidenced that the respondent's current policy for the West End of Fremantle encourages mixed uses including residential, entertainment and tourist accommodation. It is also evident that the respondent seeks to more comprehensively administer the conduct of short term residential accommodation by the introduction of appropriate policy measures.
51 The Tribunal deduces from these circumstances that there is a reasonably held presumption that short term residential accommodation continues to be anticipated and encouraged in the locality. The use, however, is not automatically permitted under the Town Planning Scheme and it follows that careful evaluation of proposals must be undertaken by the responsible authority prior to determination.
52 The respondent has not, however, set in place a policy to administer its discretion to approve or refuse the operation of short term residential accommodation, notwithstanding the presence and continued operation of such facilities in the City. In the absence of such a policy against which to measure the determination of applications for change of use, it appears to the Tribunal that if an application is required by the respondent to be considered then it ought, as a matter of fairness, be determined on its merits without delay notwithstanding the absence of a policy.
53 The Tribunal acknowledges the desirability of a policy based approach and encourages the respondent to prepare an appropriate instrument as soon as practicable.
54 The Tribunal reiterates its acknowledgement that any change of use to allow short term accommodation at Unit 7 must have regard to
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- minimising any impact on the reasonable amenity expectations of residents of the Port Mill complex. In this regard, the Tribunal noted that the application was deficient in terms of operating under an effective tenancy management policy desirably involving "on site" supervision which might assist in the regulation of guest behaviour in order to avoid nuisance and complaint. The Tribunal was mindful of the content of objections received by the respondent in response to the application and noted that particular problems in relation to the behaviour of short term residents at Unit 7 were recorded by a number of the objectors.
55 On balance, the Tribunal is not satisfied that Unit 7 is appropriately located within the Port Mill complex in order to allow the conduct of short term residential tenancies without unreasonable nuisance to other residents of the complex. Additionally, the Tribunal is not satisfied that the applicants have an effective management policy or practice in place in order to minimise the risk of anti-social behaviour of short term residents.
Conclusion
56 For the reasons described in the preceding sections of this report, the Tribunal concludes that the application for review of the respondent's decision to defer determination of the proposal for a change of use of premises at Unit 7, 15 Essex Street Fremantle from "Residential" to "Residential Other", which subsequently constitutes a "deemed refusal" under the Act, is dismissed.
Orders
57 The application for review of the City of Fremantle's decision to defer determination of the proposal for change of use of the premises at Unit 7, 15 Essex Street, Fremantle from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is dismissed.
58 The application for change of use of the premises at Unit 7, 15 Essex Street from "Residential" to "Residential Other" in order to allow the premises to be used for short term residential accommodation is refused.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SESSIONAL MEMBER
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