Phillips and Shire Of Mundaring
[2009] WASAT 193
•5 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PHILLIPS and SHIRE OF MUNDARING [2009] WASAT 193
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 OCTOBER 2009
FILE NO/S: DR 39 of 2009
DR 40 of 2009
BETWEEN: RUTH ANN PHILLIPS
Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning Development application Wedding reception centre Maximum of 120 guests State Heritage Register listed property Rural Landscape Living zone Wedding receptions to be held principally on front lawn Previous development approval for wedding reception centre use for maximum of 40 guests to be held in ballroom of residence expired on change of ownership Use not listed Whether use is permitted Whether use is 'consistent with' the objectives of the zone Zone objectives include 'to protect the rural environment and landscape' and 'to minimise bushfire hazard' Noise Visual impact of vehicles Bushfire risk Whether it is appropriate to condition a development approval to make it personal to an applicant and preclude it from running with the land Local government direction Whether direction to cease use should be confirmed, varied or set aside Words and phrases: 'consistent with'
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Heritage of Western Australia Act 1990 (WA)
Planning and Development Act 2005 (WA), s 214, s 214(2), s 252(1), s 255(1)
Shire of Mundaring Town Planning Scheme No 3, cl 3.1(8), cl 3.2(4), cl 3.2.(4)(b)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
The proposed use is not consistent with the objectives of the Rural Landscape Living zone under the Shire of Mundaring Town Planning Scheme No 3 and is therefore not permitted
Development application refused
Direction confirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Buildex Construction Company and City of Melville [2008] WASAT 86
Gillespies v Warringah Council (2002) 124 LGERA 147
GMF Holding Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Stein and Shire of Chapman Valley [2006] WASAT 105
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A semirural property which is listed on the State Heritage Register was used as a wedding reception centre without planning approval. Following a complaint, the local government required the principal of the owner to lodge a development application to regularise the use. Because a wedding reception centre is a use that is not listed in the zoning table under the local planning scheme, the local government had to determine that the proposed use was consistent with the objectives of the applicable Rural Landscape Living zone in order to be able to approve the proposal.
The local government rejected the development application. The local government also gave the principal of the owner a direction to cease use of the property to conduct wedding functions. The principal of the owner sought review by the Tribunal of both of the local government's decisions.
The Tribunal determined that the proposed use is not consistent with three relevant objectives of the zone. In particular, it is not consistent with the objective 'to protect the rural environment', because of the noise that is likely to be generated by the conduct of large wedding receptions taking place on the front lawn and by guests driving in and out of the property, getting in and out of cars and walking to and from the car parking areas. Further, the proposed use is not consistent with the objectives 'to protect the rural … landscape', 'to ensure that land use and development do not adversely affect the landscape quality' and 'to limit the visual impact of development', because of the visual impact of up to 64 vehicles that the proposal is likely to generate.
The proposed use was, therefore, not permitted and the local government's decision was confirmed. The Tribunal also determined that the direction to cease use of the property to conduct wedding functions should be affirmed. The applications for review were dismissed.
Finally, the Tribunal made two observations in relation to the local government's development assessment and approval practices as revealed in the case. First, the Tribunal said that, generally, development approvals should not be made personal to an applicant, but rather should run with the land for the benefit of subsequent owners and occupiers. Second, for the avoidance of doubt, and in the interests of both the holder of the approval and the wider community, key elements of a proposed development or use, such as the maximum number of persons proposed to be accommodated and the location where the use is to take place, should be restated in the form of conditions of approval.
Introduction
The property known as Faversham, which is located at No 2075 Jacoby Street, Mundaring (site), is listed as a permanent entry on the State Register of Heritage Places maintained by the Heritage Council of Western Australia under the Heritage of Western Australia Act 1990 (WA). Faversham comprises a single storey laterite and weatherboard house and three laterite cottages built in the Federation Queen Anne style shortly before the First World War, weatherboard and iron stables, an iron loft/garage, tankstand, and associated plantings. According to the Statement of Significance for permanent entry on the State Register of Heritage Places, Faversham House is 'an intact and excellent example of Federation Queen Anne style with the interior displaying particularly fine examples of lath and plaster ceilings, decorative leaded glass, joinery and intact door furniture'. The three laterite cottages are 'rare examples of domestic servants' accommodation'. The place also has cultural heritage significance because it illustrates 'the way of life of the wealthy and professional classes during the first quarter of the twentieth century' and is a representative example of 'the trend at the end of the first quarter of the 20th century to convert large private homes into private hospitals'. The place is associated with Ms Norma Monger who was responsible for forming the West Australian branch of the Australian Nursing Services and who was a notable person in the Mundaring district.
The site has an almost rectangular shape, a width of approximately 110 metres, a length of approximately 200 metres and an area of approximately 2.13 hectares. Faversham House and the associated cottages are located centrally within the site. From the area comprising these buildings, the site falls by approximately 3 metres to Jacoby Street to the south and by approximately 2 metres to the rear, or northern, boundary. There is remnant bush to the south and north of the house and along the eastern and western boundaries of the site. There are also introduced plantings, such as fruit trees to the northwest of the house. Although the site appears to be the largest allotment in the locality, the area is characterised by large, semirural lots, generally developed with a single house in a bush setting.
According to the evidence of Ms Ruth Phillips, the sole director of The Elms Corporation Pty Ltd, which is the current owner of the site, after the hospital use ceased, Faversham was used for various commercial purposes, including a bed and breakfast establishment, wedding venue, antique business and gallery. Most recently, on 4 February 2002, the previous owners of the site, Mr and Mrs Wiltshire, applied to the Shire of Mundaring (Shire or Council) for development approval under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or Scheme) 'to permit small scale wedding receptions for a maximum of 40 people to be held in the ballroom of the existing residence' (according to the Council minutes of 26 March 2002 quoted in a letter of complaint in relation to the current use of the site by a nearby resident).
At its meeting on 26 March 2002, the Council determined by absolute majority under cl 3.2(4)(b) of the Scheme that the proposed use was consistent with the objectives of the Rural Landscape Living zone, which applied and continues to apply to the site under TPS 3, and caused the development application to be exhibited for public comment. The determination of the consistency of the use with the zone objectives was necessary in order for the development application to be capable of approval under the Scheme, because a wedding reception centre is a use that is not listed in the Zoning Table of TPS 3.
On 5 July 2002, the Council granted development approval under TPS 3 for the proposed use of the site as a wedding reception centre subject to 10 conditions. The conditions did not expressly restrict the approved use to a maximum of 40 guests or to the location of the ballroom. However, it is arguable that, by approving the development application that included these restrictions, the restrictions were imported into the approval, not as conditions, but as elements of the approved development. Condition 10 stated that the approval 'is personal to the applicant[,] and neither runs with the land nor is transferable or assignable to any other person or property'.
On 25 May 2006, the current owner purchased the site. Although, in accordance with condition 10 of the development approval for the wedding reception centre use granted on 5 July 2002, that approval expired on the change of ownership, Ms Phillips continued to use the site as a wedding venue. In May 2008, the Council received a detailed letter of complaint from a nearby resident in relation to the use of the site as a wedding reception centre.
On 26 June 2008, Ms Phillips applied to the Shire for development approval under TPS 3 to use the site for the purpose of 'bed and breakfast cottages/wedding venue'. However, Ms Phillips has subsequently withdrawn the 'bed and breakfast cottages' component of the development application. The proposed wedding reception centre use is for a maximum of 120 guests and involves a maximum of eight staff. Ms Phillips explained that weddings are conducted from September to April with a policy of one wedding per weekend. Wedding ceremonies are held from midafternoon, often under a tree to the northwest of Faversham House, and receptions take place from about 6.30 pm to 11 pm on the front lawn of the residence, sometimes under a marquee and sometimes in the open. A dance floor is usually placed between the front lawn and the front verandah. Music is usually played on the front verandah between approximately 8.30 pm and 11 pm. The ballroom is usually used for the wedding cake and wedding gifts. Food is cooked elsewhere, brought refrigerated to the site and then heated. Wedding organisers are required to supply their own alcohol which is chilled and served by staff at the wedding.
The development application was advertised and the Council received 10 letters of objection from residents in the locality.
At its meeting on 9 December 2008, the Council received a report from its assessing officers recommending that it should grant development approval for the proposed wedding reception centre use on the site. The stated reason for this recommendation was, in summary, because 'wedding functions will operate on fewer days and with a limitation on the number of guests, which varies from the approval granted to the previous owners in 2002'. The Council, however, resolved to refuse development approval for the proposed use on account of noise, traffic, bushfire risk and dust nuisance. At the same meeting, the Council resolved to give Ms Phillips a direction pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act) to cease use of the site as a wedding reception centre within 60 days of the date of the direction.
On or about 18 December 2008, the Shire gave Ms Phillips a direction pursuant to s 214(2) of the PD Act to 'stop and not recommence' the use of the site to conduct wedding functions within 60 days of the service of the direction.
On 19 January 2009, Ms Phillips sought review by the Tribunal of the Shire's decisions:
•to give the direction to cease use of the site to conduct wedding functions, pursuant to s 255(1) of the PD Act (DR 39 of 2009); and
•to refuse development approval for use of the site as a wedding reception centre, pursuant to s 252(1) of the PD Act (DR 40 of 2009).
With the agreement of the parties, these two applications for review were determined together entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) following a view of the site conducted by the Tribunal with Ms Phillips and the Shire's agent, Mr Joe Algeri, a consultant town planner, on 30 September 2009.
Threshold issue for determination in relation to proposed use
It is common ground that the proposed use of the site as a wedding reception centre is a use that is not listed in the Zoning Table under TPS 3 and that the proposal is, therefore, subject to a threshold assessment under cl 3.2(4) of the Scheme. Clause 3.2(4) of TPS 3 states as follows:
If a particular use or purpose is not mentioned in the list of use classes in the Zoning Table and is not included in the general terms of any use class in the Zoning Table, the Council in dealing with an application for planning approval involving that use may:
(a)determine that the use is not consistent with the objectives of the relevant zone and is therefore not permitted; or
(b)determine by absolute majority that the proposed use is consistent with the objectives of the relevant zone and thereafter cause the application to be exhibited for public comment in accordance with the procedure set out in clause 6.6.
The objectives of the Rural Landscape Living zone are set out in cl 3.1(8) of TPS 3 and relevantly include:
(a)to protect the rural environment and landscape;
(b)to ensure that land use and development do not adversely affect the landscape quality and scenic values;
(c)to limit the visual impact of development and conserve and enhance the existing landscape quality and scenic values;
…
(j)to minimise bushfire hazard.
The expression 'consistent with' in cl 3.2(4) of TPS 3 is not defined in the Scheme. The expression relevantly bears its ordinary and natural meaning: Gillespies v Warringah Council (2002) 124 LGERA 147 at [77] (Gillespies). According to The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005), the adjective 'consistent' has the following meanings:
1. agreeing or accordant; compatible; not self-opposed or selfcontradictory. 2. constantly adhering to the same principles, course, etc. (p 314)
The words 'agreeing', 'accordant' and 'compatible' have the following relevant meanings:
•agree 'to be of one mind; harmonise in opinion or feeling … to be consistent; harmonise' (p 27)
•accordant 'agreeing; conformable; (p 9)
•compatible 'capable of existing together in harmony' (p 301); see also Gillespies at [74] and Buildex Construction Company and City of Melville [2008] WASAT 86 at [53].
For reasons which follow, the Tribunal has determined that the proposed use is not consistent with objectives (a), (b) and (c) of the zone objectives. The proposed use is, therefore, not permitted and the Shire's decision to refuse development approval should be affirmed.
Is the proposed use consistent with the objectives of the zone?
Ms Phillips relied on the Council's determination on 26 March 2002 that the use of the site as a wedding reception centre is consistent with the objectives of the zone. In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71, the Tribunal said, at [54], that:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
Although the planning framework applying to the site appears to be the same today as it was on 26 March 2002, the circumstances have changed in a substantial way. As noted earlier, the development application that was made by the previous owners of the site was to permit 'small scale wedding receptions for a maximum of 40 people to be held in the ballroom of the existing residence'. In significant contrast, the proposed wedding reception centre would involve three times the maximum number of guests as were proposed in 2002 and receptions being held primarily outside, rather than inside, Faversham House. Furthermore, cl 3.2(4) of TPS 3 makes it clear that the determination as to whether a proposed use is or is not consistent with the objectives of the relevant zone is to be made 'in dealing with an application for Planning Approval involving that use'. The application for development approval involving the wedding reception centre use that is presently before the Tribunal is significantly different to the development application involving the wedding reception centre use that was before the Council on 26 March 2002. Consequently, the Council's determination on 26 March 2002 does not assist Ms Phillips in this case.
As the Shire contended, the proposed use is not consistent with objective (a) of the Rural Landscape Living zone 'to protect the rural environment and landscape'. In particular, the proposal is not consistent with the objective to protect the rural environment, because of the noise that is likely to be generated by the conduct of large wedding receptions taking place on the front lawn of Faversham House and by guests driving in and out of the property, getting in and out of cars and walking to and from the car parking areas.
The Shire has proposed, on a without prejudice basis, and Ms Phillips has accepted, a draft condition of development approval that 'no amplified music or public address systems are permitted outdoors, including the verandahs of Faversham homestead'. However, the nature of the proposed use and the physical characteristics of the part of the site on which it is to be carried out appear to make compliance with this condition impracticable. In particular, given that weddings usually involve a dance floor between the front lawn and the verandah, it is extremely unlikely that bands playing amplified music will not perform at weddings if requested by the wedding organiser. Furthermore, given the size of the front lawn, it is extremely unlikely that a microphone would not be used for wedding speeches. Mr Adrian Dyson, an environmental health scientist and the Shire's Manager of Health and Community Safety Services, gave evidence that he has measured the noise levels from a function held outdoors on the site when the property was under previous ownership and found that the noise levels emitted exceeded the assigned levels when received at the nearest noise-sensitive premises under the Environmental Protection (Noise) Regulations 1997 (WA).
However, even if the proposed condition precluding amplified music and public address systems from operating outside Faversham House were complied with, amplified music could be played in the ballroom which has a door and windows opening to the front verandah. In their report to the Council in relation to the proposed use, the Shire's officers noted that 'the assigned [noise] levels could also be exceeded when amplified music is played inside the main building'.
Furthermore, irrespective of whether amplified music or public address systems would be used outside Faversham House, the use of the front verandah and front lawn for playing music, dancing and celebrating weddings by up to 120 guests is likely to result in adverse noise impacts on adjoining and adjacent residences. Five residential properties adjoin the site. In particular, dwellings are located close to the eastern and western boundaries of the site. The front lawn of Faversham House is in a relatively elevated position, with the site falling both to the north and south. There are no effective noise mitigation barriers between the front lawn and affected residences. The locality is generally devoid of commercial uses, particularly in the evening and at night.
While Ms Phillips said that 'the guests are mindful of the ambience of the homestead and the occasions are dignified and formal' and that 'the weddings are professionally supervised, the guests traditionally a combination of families with ages ranging from children to elderly', the combination of evening weddings, an elevated, outdoor location, alcohol, a dance floor, music and up to 120 guests, makes adverse noise impacts on adjoining and adjacent residences inevitable. Consequently, the use of the front verandah and front lawn for wedding receptions as proposed is not consistent with the objective to protect the rural environment. Indeed, the proposal is likely to have a significant adverse impact on the rural acoustic environment.
Furthermore, all vehicles entering and exiting the site would do so adjacent to the common boundary with the property to the west. The proposed car parking areas are located adjacent to the front boundary and the western boundary of the site. The Shire's officers estimated that the proposal would generate a maximum of approximately 128 vehicle movements per wedding. This large number of vehicle movements and noises associated with vehicles parking and leaving, guests exiting and accessing their vehicles, and guests walking to and from the parking areas, are likely to give rise to adverse noise impacts, particularly for the property to the west of the site. While a proposed and agreed draft condition of approval would require 'a landscaping buffer for noise or [sic] parking areas … to be provided in accordance with [TPS 3] and relevant planning and vegetation policy', given the proximity of the driveway and parking areas to the western boundary of the site in particular, it is unlikely that trees would provide an adequate acoustic buffer. For this reason also, the proposed use is not consistent with the objective to protect the rural environment.
Further, the proposed use is not consistent with the objectives 'to protect the rural … landscape' (objective (a)), 'to ensure that land use and development do not adversely affect the landscape quality' (objective (b)) and 'to limit the visual impact of development' (objective (c)), because of the visual impact of up to 64 vehicles that the proposal is likely to generate. The Shire's officers considered that:
The provision of approximately 1,766.4 square metres of car parking areas on a lot with an area of 21,376 square metres would adversely affect the landscape quality and scenic values of the site but could be offset with the lodgement of landscaping and parking plans approved by the Shire of Mundaring's Environmental and Infrastructure Services and the colocation of parking bay manoeuvring areas, dealt with as a Parking Area (IP use) in accordance with the Scheme.
While the Tribunal agrees with the officers' observation that the significant extent of car parking area and, moreover, the view of up to 64 vehicles on a semirural property, would adversely affect the landscape quality of the site, it cannot readily understand the officers' view that landscaping and parking plans could offset these impacts. While there is some remnant bushland vegetation at the Jacoby Street frontage and along the western site boundary, the car parking areas could still be seen from both the street and the adjoining property to the west. In order to accommodate the large number of vehicles that would be generated by the proposal, the capacity to plant any additional trees is limited.
Finally, although the Shire argued that the proposed use is not consistent with objective (j) of the zone 'to minimise bushfire hazard', the Tribunal considers that the proposal would be consistent with this objective if conditioned, as proposed by the Shire and agreed by Ms Phillips, to be subject to a fire management plan dealing with, among other things, the disposal of cigarettes.
It follows that the use proposed in the development application is not consistent with three relevant objectives of the Rural Landscape Living zone and is therefore not permitted under the Scheme. As the proposed use is not permitted, the development application must be refused.
Should the direction be confirmed, varied or set aside?
Having regard to the matters for consideration in the exercise of discretion under s 214 of the PD Act identified in Morea Architects and Town of Vincent [2006] WASAT 263;(2006) 44 SR (WA) 301 at [63], it is appropriate to confirm the direction requiring Ms Phillips to cease use of the site to conduct wedding functions. In particular:
•It is in the public interest of orderly and proper development that planning laws should be complied with.
•The complaints and objections made in relation to the proposed development, together with the analysis earlier in these reasons, shows that the impact of the contravention of the Scheme on the affected locality and environment is significant.
•The factual circumstances in which the contravention of the Scheme has taken place do not relevantly justify the revoking or variation of the direction. While condition 10 of the development approval granted on 5 July 2002, restricting that approval to the then owners of the site, is unusual in planning decisionmaking, Ms Phillips indicated in the application to the Tribunal in DR 40 of 2009 that, on the sale of the property, she had lengthy discussions with the Shire's planning officers in relation to the development and subdivision potential of the site.
•The Shire acted relatively promptly, following the complaint in May 2008, to require Ms Phillips to lodge a development application to regularise the unlawful use of the site.
•While the direction would be to the financial detriment of Ms Phillips, in that it would preclude her from obtaining income from weddings, that detriment does not warrant the direction being set aside or varied, having regard to the other considerations.
It follows that the direction should be confirmed in the exercise of discretion.
Conclusion
The Tribunal has determined that the proposed use of the site as a wedding reception centre is not consistent with three relevant objectives of the Rural Landscape Living zone and is, therefore, not permitted on the site. In consequence, the development application must be refused. The Tribunal has also determined that the direction requiring Ms Phillips to cease use of the site to conduct wedding functions should be confirmed.
Two observations in relation to the Shire's development assessment and approval practices
Finally, it is appropriate for the Tribunal to make two observations in relation to the Shire's development assessment and approval practices as revealed in this case.
First, as noted earlier, condition 10 of the development approval granted on 5 July 2002 stated that the consent was 'personal to the applicant and neither runs with the land nor is transferable or assignable to any other person or property'. Similarly, in this case, the Shire contended that, if the proposed use were permitted and warranted conditional approval, then the consent should be made personal to Ms Phillips.
As the Tribunal said in GMF Holding Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 at [67]:
Planning law 'is concerned with the use of land not with the identity of the user': per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. …
Therefore, generally, development approvals should not be made personal to an applicant, but rather should run with the land for the benefit of subsequent owners and occupiers. Certainly, in special circumstances, such as:
… [w]here the management expertise and experience of the applicant are likely to be significant in reducing the amenity impacts of proposed uses such as billiard parlours, amusement parlours, dog kennels, broiler chicken sheds etc, the tribunal may impose a condition which makes the permit 'personal' to the applicant. (Stein and Shire of Chapman Valley [2006] WASAT 105 at [87])
However, even in such cases, a preferable alternative may be to impose a timelimited approval to be able to review how a development operates in practice, rather than to make the approval personal to the applicant.
It appears that neither Mr and Mrs Wiltshire nor Ms Phillips have management expertise or experience in conducting wedding receptions that is likely to be significant in reducing amenity impacts. Both landowners left the management of weddings to another person. A condition making an approval personal was and is therefore inappropriate.
Second, as also noted earlier, the Council did not impose a condition on the development approval granted on 5 July 2002 expressly restricting the approved use to a maximum of 40 guests or to the location of the ballroom. While it is arguable that, by approving the development application that included these restrictions as elements, the restrictions were imported into the approval, for the avoidance of doubt and in the interests of both the holder of the approval and the wider community, the approval should have been conditioned to expressly restate these restrictions. It is noted that the 'without prejudice' conditions proposed by the Shire in this case contained such a condition.
Orders
The Tribunal makes the following orders:
DR 39 of 2009
1.The application for review is dismissed.
2.The direction given by the respondent to the applicant on or about 18 December 2008 requiring the applicant to stop and not recommence the use of Lot 16 on Diagram 59049 being the whole of the land in Certificate of Title Volume 1595 Folio 787 to conduct wedding functions is confirmed but varied to require the use to cease within 60 days of the date of this order.
DR 40 of 2009
1.The application for review is dismissed.
2.The use of No 2075 (Lot 16) Jacoby Street, Mundaring as a wedding reception centre proposed in the development application made by the applicant to the respondent on 26 June 2008 is not consistent with the objectives of the Rural Landscape Living zone under the Shire of Mundaring Town Planning Scheme No 3 and is therefore not permitted.
3.The decision of the respondent made on 9 December 2008 to refuse development approval for the use of No 2075 (Lot 16) Jacoby Street, Mundaring as a wedding reception centre is affirmed.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
5
6
5