PISANI and CITY OF KARRATHA - [2022] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   PISANI and CITY OF KARRATHA [2022] WASAT 24
MEMBER:   MS M CONNOR, MEMBER
HEARD:   30 NOVEMBER AND 1 DECEMBER 2021
DELIVERED          :   30 MARCH 2022
FILE NO/S:   DR 43 of 2021
BETWEEN:   WARREN PISANI
Applicant
AND
CITY OF KARRATHA
Respondent

Catchwords:

Town planning - Development application - Child care premises - Whether child care premises capable of approval - Whether sufficient car parking provided - Traffic safety - Noise emissions - Mitigation measures - Compatibility with its setting - Orderly and proper planning - Amenity impacts - Conditions

Legislation:

City of Karratha Local Planning Scheme No 8, cl 3.2, cl 3.2.2, cl 4.1, cl 4.8, cl 5.4.1, cl 5.4.2, cl 5.11, cl 5.11.1, cl 6.2.2, cl 6.2.3, Appendix 1, Appendix 2, Appendix 3, Appendix 5
Community Services (Child Care) Regulations 1988 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Local Government (Uniform Local Provisions) Regulations 1996 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 79, Sch 2, cl 1, cl 15, cl 27, cl 28(4), cl 64, cl 67, cl 67(b), cl 67(n), cl 76(2), cl 90(2), Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 257B, s 257B(3)
Planning Regulations Amendment Regulations 2020 (WA), Pt 2, reg 74(2)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31

Result:

Application for review allowed
Decision of respondent set aside and a decision substituted

Category: B

Representation:

Counsel:

Applicant	:	Mr J Algeri
Respondent	:	Mr J Hurley

Solicitors:

Applicant	:	Altus Planning
Respondent	:	City of Karratha

Case(s) referred to in decision(s):

Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 174
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Grace and City of Nedlands [2010] WASAT 53
Hanson Construction Materials Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 140
Ienco and City of Melville [2007] WASAT 56
Mackenzie and City of Stirling [2015] WASAT 144
Mann and City of Rockingham [2006] WASAT 115
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Randall and Town of Vincent [2005] WASAT 147
Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Warren Pisani (applicant) seeks review by the Tribunal under cl 76(2) of the Deemed Provisions for Local Planning Schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (deemed provisions) of the decision of the City of Karratha (City, Council or respondent) on 22 February 2021 to refuse to grant development approval for 'Change of Use – Single House to Child Care Premises' on No 3 (Lot 221) Walkington Circle, Millars Well (subject land or site).
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
The Tribunal heard expert evidence from Mr Tim Reynolds, who is a qualified engineer and Managing Director of Herring Storer Acoustics and Mr David Maiorana, a town planning consultant called on behalf of the applicant; and Mr Martti Warpenius, who is an acoustical engineer and Director of Reverberate Consulting Pty Ltd and Mr Stephen Allerding, a town planning consultant called on behalf of the respondent. Ms Lori Forwood, an owner of No 22 Walkington Circle, Millars Well, also gave evidence raising concerns about the overall suitability of the location of the child care premises, highlighting issues of road safety, increased traffic, inadequate parking and noise pollution.
Further, the Tribunal, together with representatives of the parties, had the benefit of a view of the subject land and surrounds.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to grant development approval for the proposed development under the City of Karratha Local Planning Scheme No 8 (LPS 8 or Scheme) subject to 11 conditions set out in Attachment A to these reasons.

Subject land

The subject land is more particularly described as Lot 221 on Deposited Plan 44811 being the whole of the land contained in Certificate of Title Volume 2595 Folio 446 and is 803m² in area. The Tribunal notes that the two restrictive covenants shown on the Certificate of Title ceased to have any effect on 1 July 2015.
The site is bordered by Walkington Circle to the south-west; a drainage reserve to the north-west; a 10.4 hectare lot zoned Parks, Recreation and Drainage under the Scheme to the north-east (Reserve 40041); and a residential dwelling to the south-east, namely No 5 Walkington Circle (No 5 or adjoining lot). The subject land is the first residential property as you enter Walkington Circle off Bathgate Road. There is currently an existing five bedroom, two bathroom (plus ensuite) single storey dwelling constructed on the site.
Walkington Circle is a loop road which intersects with Bathgate Road approximately 35 metres to the north-west of the subject land. The loop road arrangement forms an intersection directly opposite the site. There are a total of 29 single residential lots, ranging in size from 787m² to 1164m², that front Walkington Circle. All the lots, with the exception of one, are developed.

The proposed development

In December 2020 the applicant lodged an application with the City seeking development approval for a change of use of the existing single house on the subject land to 'Child Care Premises' and associated alterations to the building to accommodate the proposed use (December 2020 application).
It was intended that the proposed child care premises would cater for three different age groups (babies, toddlers and pre kindy) with a maximum limit of 20 children at any one time and three full-time staff, operating on weekdays only between the hours of 7:30 am to 5:30 pm.
The alterations to the existing building involved relatively minor internal and external building modifications, which included the removal of the carport of the existing dwelling to allow sufficient car parking on site for five car parking bays (bays) in the front setback area and alterations to the front of the dwelling to provide for a new entrance as shown on plans dated 23 November 2020 (November 2020 plans).[1]
[1] Respondent's s 24 bundle of documents dated 3 September 2021 (Exhibit 4) pages 17-21.
The December 2020 application was advertised in accordance with cl 64 of the deemed provisions and 15 submissions were received objecting to the proposed development. In response to the concerns raised in relation to the adequacy of onsite car parking, the applicant submitted amended plans modifying the car parking arrangements to include four guest bays (guest or visitor bays), three staff bays in tandem and four bicycle bays. The plans also reduced the total area of the outdoor play areas from 303m² to 246m² (February 2021 plans).[2]
[2] Respondent's s 24 bundle of documents dated 3 September 2021 (Exhibit 4) pages 66-69.
The Council, at its meeting of 22 February 2021, resolved to refuse to grant development approval for a 'Change of Use - Single House to Child Care Premises' for the following reasons:
The proposed development would have unacceptable adverse impacts on surrounding properties and the amenity of the residential area due to the following reasons:
1.Traffic congestion - generation of a higher number of vehicles not typical for a residential street;
2.Unacceptable on-site parking - four visitor bays for a maximum number of 20 children at any one time will allow people to park in the street and on the verge of other residential properties for drop off/pickup;
3.Noise - excessive noise generated from traffic and children that is not typical for a residential street and therefore not compatible with the character of the area;
4.Inappropriate location - being a commercial use in a residential setting makes the proposed Child Care Centre not compatible within its setting; and
5.Building appearance not being compatible with the existing streetscape - the proposed external appearance of the dwelling will differ from the general character of dwellings in Walkington Circle, therefore giving it a commercial appearance which is not compatible within its residential setting.
On 9 March 2021, the applicant sought review by the Tribunal of the Council's decision to refuse to grant development approval. The applicant seeks an order that the respondent's decision be set aside and a decision substituted granting development approval, subject to appropriate conditions, to the proposed development.
As part of the proceedings in this matter the parties engaged in mediation resulting in additional supporting information being provided to the respondent, which included a transport impact statement and an operation noise management plan. The Tribunal, pursuant to s 31 of the SAT Act, invited the respondent to reconsider its decision.
The proposed development was recommended for approval subject to 12 conditions by the administration of the City and considered by the Council at its meeting of 22 July 2021, where the Council resolved in essence to affirm its previous decision.
The matter was programmed to final hearing (hearing) for adjudication by the Tribunal. Subsequent to the acoustic evidence, the applicant sought leave, and leave was granted, to amend its application to exclude children less than 24 months old (babies) attending the child care premises and modify the layout within the building to reflect this change; remove the outdoor play area located adjacent to the residential dwelling on No 5; and include an acoustically transparent barrier between the landscaped area and the carpark (November 2021 application).[3]
[3] Correspondence dated 22 November 2021 - Revised Plan - Pisani v City of Karratha, DR43/2021 (Exhibit 2).
The applicant reaffirmed the children and staff numbers as per the December 2020 application, being 20 children at any one time, and three full-time staff. The car parking arrangements for the proposed development were articulated by the applicant's representative as follows:
…vehicular access is from a sole or single six metre wide crossover, and four onsite car bays are proposed, including an accessible bay, and these are reserved for parents or carers during drop off and pick up, and in addition, we now have three tandem staff bays and four bicycle spaces are also proposed.[4]

Planning framework

[4] ts 27, 30 November 2021.

LPS 8 applies to the municipal district of the City. LPS 8 is comprised of the Scheme Text; Scheme Maps; the deemed provisions; and the supplemental provisions contained in Sch A of the Scheme. To the extent of any inconsistency between a deemed provision with another provision of LPS 8, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[5]
[5] Section 257B(3) of the Planning and Development Act 2005 (WA).
The subject land is zoned 'Urban Development' under LPS 8 and is located within Special Control Area - Development Area 1 - Millars Well Bathgate Road - Area E (DA 1), as shown on the Scheme Map and included in Appendix 5 of LPS 8.
The special conditions, as set out in Appendix 5, that apply to DA 1 are:
1.Structure Plan adopted to guide subdivision, land use and development.
2.To provide for residential development and recreation.
Clause 4.1 and cl 5.4.1 of the Scheme, read in conjunction with cl 15 of the deemed provisions, specifies that a structure plan may be prepared for land zoned Urban Development. The purpose of a structure plan area is:
a)To identify areas requiring comprehensive planning prior to subdivision and development.
b)To coordinated subdivision, land use and development in areas requiring comprehensive planning.[6]
[6] Clause 6.2.2 LPS 8.
'Development Plan - Area E' encompasses the land identified in DA 1 and designates the subject land as 'Residential: R12.5'.[7] The parties agree, and the Tribunal accepts, for the purposes of reg 79 of the LPS Regulations, Development Plan - Area E is taken to be a structure plan made under the Planning and Development Act 2005 (WA) before commencement day and as such, pursuant to cl 28(4) of the deemed provisions, the structure plans continues as the adopted structure plan until 19 October 2025.
[7] Respondent's s 24 bundle of documents dated 3 September 2021 (Exhibit 4) page 220.
Clause 6.2.3 of the Scheme states that '[w]here a structure plan exists, the … development of land is to be generally in accordance with the structure plan.' Further, cl 27 of the deemed provisions requires the decision-maker to have due regard, but is not bound by, the structure plan when deciding the application.
Clause 5.4.2 of the Scheme provides that:
The local government shall, when it considers subdivision and development in an area the subject of a structure plan has proceeded to the extent where detailed zones and reservations can be defined, amend the Scheme to indicate these zones and reservations.
The site is also located in the Karratha Precinct and the objectives for the Karratha Precinct are set out at cl 4.8 of the Scheme.[8] In addition, the subject land is contained within the Airport Obstacle Height Limitation Area Special Control Area (SCA). However, as the proposed development does not involve a change of height to the existing building, this SCA has no bearing on the matter.
[8] Appendix 2 of LPS 8.
There is no dispute that the land use being applied for is a 'childcare premises', which is defined in Appendix 1 - Dictionary of Defined Terms of the Scheme as follows:
has the same meaning as in the Community Services (Child Care) Regulations 1988 [CS Regs].
The CS Regs define 'child care premises' as 'premises specified in a licence or permit as premises in which a child care service may be provided'.
Clause 3.2 of the Scheme makes provisions for a Zoning Table, which pursuant to cl 3.2.2 indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones. In the Urban Development zone, the Zoning Table specifies, with the singular exception of 'Workforce Accommodation, that '[d]evelopment and use of land shall have due regard to an approved structure plan'. The subject land is denoted as Residential in Development Plan - Area E.
Child Care Premises is designated an 'A' use in the Residential zone in the Zoning Table of the Scheme. A class 'A' use as defined in the deemed provisions is a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with cl 64 of the deemed provisions.
Clause 5.11 of the Scheme sets out provisions relating to vehicle parking and access. Relevantly, cl 5.11.1 provides:
Unless otherwise provided by the Scheme, no development is permitted without providing concrete or bitumen sealed, kerbed, marked and drained onsite car parking in accordance with the requirements in Appendix 3 and the Australian standards AS2890.1, AS2890.2 and AS2890.6 relating to off-street parking.
Appendix 3 - Car Parking Requirements of the Scheme specifies the car parking requirement for a Child Care Premises as '[o]ne per every 10 children plus one per employee'.
Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application.[9] The pertinent matters relating to this application are as follows:
[9] The Tribunal notes that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the deemed provisions. However, cl 90(2) of the amended deemed provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former deemed provisions apply in this case.
•the aims and provisions of LPS 8 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any structure plan or local development plan that relates to the development (subclause (h)).
•the compatibility of the development with its setting (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•whether adequate provision has been made for the landscaping of the land to which the application relates (subclause (p));
•the adequacy of access to and egress from the site, and the arrangements for manoeuvring and parking of vehicles (subclause (s));
•the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety (subclause (t));
•the availability and adequacy of the development for access for pedestrians and cyclists (subclause (u));
•the potential loss of any community service or benefit resulting from the development (subclause (v));
•the impact of the development on the community as a whole notwithstanding the impact of the development in particular individuals (subclause (x));
•any submissions received on the application (subclause (y); and
•any other planning consideration the local government considers appropriate, being the City of Karratha Local Planning Strategy (2021) (LP Strategy) (subclause (zb)).

Issues

The parties agreed that the following are the principal issues for determination in this review:
1)Should the proposed development be approved having regard to the planning framework and specifically:
a)whether the proposed development is a land use capable of approval?
b)whether the proposed development provides sufficient car parking?
c)whether the proposed development generates unacceptable noise? and
d)whether the proposed development is compatible with the surrounding residential setting?
2)Would approval of the proposed development be consistent with orderly and proper planning and the preservation of the amenity of the locality?
The Tribunal will address each of these issues in turn.

Should the proposed development be approved having regard to the planning framework and specifically:

1a) Whether the proposed development is a land use capable of approval?

The parties agreed that Development Plan E, although not considered to resemble a contemporary structure plan,[10] is for the purposes of reg 79 of the LPS Regulations taken to be a structure plan for DA 1. No evidence was adduced, or any submissions made asserting that the applicable statutory planning framework prohibited the permissibility of 'Child Care Premises' in DA 1. Contrary, both planning experts and the respondent agreed that a Child Care Premises was capable of approval in the exercise of planning discretion under LPS 8. The respondent, in essence, reframed the issue to be whether the available discretion should be exercised taking into consideration the cumulatively impacts of the proposed development relating to traffic, onsite car parking, noise, the appropriateness of the location, and the compatibility of the proposal with its setting. These impacts are addressed in the following issues.

1b) Whether the proposed development provides sufficient car parking?

[10] ts 173, 1 December 2021.

Mr Hurley, the respondent's representative, in his opening submissions described the car parking arrangements as follows:
[The amended site] plan shows four parking bays out the front, two visitor bays on the northwest boundary and two visitor bays along the southeast boundary, one being a people with disabilities (PWD) bay and shared area. Behind the people with disabilities shared area, three tandem parking bays for staff are proposed along the southeast boundary of the property.[11]
[11] ts 13, 30 November 2021.
The respondent does not dispute that the number of car parking bays provided on site satisfies the requirement of LPS 8 with a surplus of two bays but says that due to the configuration of the car parking there are operational limitation on the functionality of the parking arrangements, which may give rise to visitors parking on the verge or the road creating a traffic safety concern at the T-intersection on Walkington Circle.
The applicant relies on the Transport Impact Statement (TIS) prepared by Cardno which focused on the traffic access, circulation and safety of the proposed development.[12] The author of the TIS was not called by the applicant to give evidence at the final hearing and the respondent did not adduce any evidence from an equivalent expert to challenge the analysis and conclusions made in the TIS. The parties relied on their planning experts to proffer their views on the issue.
[12] Respondent's s 24 bundle of documents dated 3 September 2021 (Exhibit 4) pages 113-140.
The TIS assessed the swept paths for B99 design vehicle for the proposed parking bays and concluded the following:
Staff parking bays may be accessed by a B99 design vehicle via forward in and exit in reverse. The swept paths show that visitor parking bays 3 and 4 are anticipated to be encroached by the staff swept paths. However, it should be noted that staff are anticipated to arrive before opening and leave after closing of the proposed child care centre. In addition, signage may be installed within the car park to instruct visitors to use guest parking bays 1 and 2 if they are available to allow entry/exit of staff vehicles during operation hours.
The analysis also shows that a B99 design vehicle would be able to enter the visitor bays in either forward-in or reverse-in manoeuvres without any encroachment to adjacent bays or kerbs. It should be noted that reverse-in parking can be executed in fewer turns than forward-in parking.
Based on the swept path analysis, the proposed car park is anticipated to safely cater to the parking manoeuvres to be executed by both visitors and staff. The smaller B85 design vehicle is also anticipated to execute the same parking maneouvres (sic). To maximize parking turnover, designation of the non-ACROD visitor parking bays as reverse-in only may be considered to lessen the number of turns needed to enter the bays.
The 'Summary' of the TIS states that '[t]he proposed carpark is expected to safely accommodate ingress and egress manoeuvres for a B99 design vehicle'.
Both planning experts agree that the tandem bay arrangement for staff parking is somewhat unconventional, although something that is reasonably commonplace in other similar childcare proposals that they have dealt with.
Mr Allerding accepts that the TIS affirms that the site, based on the proposed number of staff and children, is suitable and that 'having a surplus of two car parking bays would be an advantage for the proposal to mitigate a likelihood of people parking on the street'.[13] Notwithstanding, he has some reservations about the constraints with manoeuvrability associated with the configuration of the car parking, the propensity for people to want to park on the street and the location of the site adjacent to the T-intersection of Walkington Circle, which in his opinion, could result in traffic safety issues. He did accept that the City could impose parking restrictions on Walkington Circle to resolve the issue of visitors parking on the road, if needed.
[13] ts 146, 1 December 2021.
Mr Maiorana accepts there may be instances where a staff member may need to arrive or leave at a time when visitor bay 3 and/or 4 are not available but he considers such circumstances to be an exception and can be appropriately managed by operational arrangements. Mr Maiorana considers that the car parking demand that will be generated by the use and the number and configuration of car parking spaces to be appropriate and acceptable given the scale, layout and location of the proposed development.
The Tribunal does not consider the car parking arrangements to be optimal but accepts the conclusions made in the TIS that the proposed carpark is expected to safely accommodate ingress and egress movements. Further, the fact that there is a surplus of two bays gives some comfort that the demand likely to be generated by the proposed development will be sufficient to satisfy the parking demand generated by the land use and the likelihood of overflow car parking onto Walkington Circle minimised. The Tribunal is not overly concerned about parent/carers attempting to park on the verge or road as there are means available to the local government to prevent vehicles parking on the verge or road pavement.

1c) Whether the proposed development generates unacceptable noise?

Mr Reynolds was engaged by the applicant to undertake an acoustic assessment of noise emissions associated with the proposed development on the neighbouring residential premises at No 5 and No 38 Walkington Circle (No 38). This acoustic assessment was based on the detailed layout as shown on November 2020 plans.[14] Mr Reynolds prepared a witness statement referencing the findings and conclusions of the acoustic assessment, and in his opinion, the proposed child care premises would comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regs) and the noise associated from vehicles arriving and leaving the child care premises would be acceptable.
[14] Proposed Child Care Centre 3 Walkington Circle Millars Well Environmental Acoustic Assessment (November 2020) – Annexure 2 to Witness Statement of Tim Reynolds dated 12 November 2021 (Exhibit 12).
Mr Warpenius, who was engaged by the respondent, also prepared an environmental noise impact report, which considered child noise, airconditioning noise and carpark activity noises (vehicle door closing) received at the nearest residences at No 5 and No 38.[15] This acoustic assessment was based on the detailed layout as shown on the February 2021 plans and considered several outdoor play area scenarios. Mr Warpenius prepared a witness statement relying on the findings in his acoustic assessment, which found that the child care premises is expected to emit child noise, air-conditioning noise and carpark noise which exceed the assigned levels derived from the Noise Regs, and due to the forecasted exceedances held the opinion the proposed child care premises should not be approved. Mr Warpenius considered the source of main concern was the noise generated by children in the outdoor play areas on the noise sensitive premises at No 5.
[15] Childcare Centre 3 Walkington Circle Millars Well Environmental Noise Impact (November 2021) -Annexure B to Witness Statement of Martti Warpenius dated 12 November 2021 (Exhibit 7).
As a response to the concerns raised by Mr Warpenius, the applicant modified the proposed development (November 2021 application), which formed part of the material considered by the acoustic experts in their conferral. The acoustic experts in their conferral addressed six issues within their expertise relating to the November 2021 application and oral evidence was given at the hearing in respect to each of these issues.
The first issue raised related to the determination of influencing factor and assigned noise levels. The acoustic experts agree that the influencing factor at the surrounding residences (No 5 and No 38) would be 0dB and as such, the day period assigned noise levels would be as set out in Table 1 of their joint statement and reproduced below:
TABLE 1 - ASSIGNED DAY PERIOD OUTDOOR NOISE LEVEL

Premises Receiving Noise	Time of Day	Assigned Level (dB)
		L_A10	_LA1	L_Amax
Noise sensitive premises: Highly sensitive areas	0700-1900 hours Monday to Saturday (Day)	45	55	65
Note: L_A10 is the noise level exceeded for 10% of the time L_A1 is the noise level exceeded for 1% of the time L_Amax is the maximum noise level

The acoustic experts agree that noise received at No 38 would be compliant and the only noise sensitive premises of concern is No 5.
The second issue of whether the noise emissions from the proposed outdoor play areas comply with the requirements of the Noise Regs, the acoustic experts agree that noise from the outdoor play area as shown in the November 2021 application would comply with the assigned noise levels and would be acceptable with the inclusion of a 1.8 metre high acoustically treated fence installed between outdoor area 3 (green space) and outdoor area 2. In addition, it was recommended by the acoustic experts that any raised play equipment be located towards the north-west half of outdoor play area 2 and/or located within outdoor play area 1.
The third issue considered whether the noise emissions from any proposed air-conditioning complied with the assigned noise levels. Mr Warpenius was concerned that no details had been made available by the applicant for the proposed design of the air-conditioning system and an assessment of the combined emissions. During conferral, Mr Reynolds stated that the existing air-conditioning units were remaining on the south-eastern façade and that the new units would be located at the western corner of the site. He also indicated that the applicant would have no objection to relocating some or all of the existing airconditioning to the western corner of the site.
The acoustic experts agree that noise emission from any proposed airconditioning can comply with the assigned noise levels by either:
•locating the condensing units in the western corner of the child care premises, near the property boundary; or
•providing sufficient shielding to the car parking area (discussed below).
Mr Warpenius in oral evidence accepted that there were technical solutions available to ameliorate noise emissions from the airconditioning units on No 5.[16]
[16] ts 53, 30 November 2021.
Under issue 4 the acoustic experts noted the following changes to the proposed development and additional measures that could be incorporated to resolve the noise issue:

Changes

•the reallocation of outdoor play areas;
•the deletion of outdoor area 3 resulting in the introduction of a green space (63.37m²) between outdoor area 2 and No 5;
•the removal of babies from the child care premises; and
•the increase in numbers of older children;

Additional measures

•introducing an acoustically transparent barrier between the green space and the staff car parking area;
•removal of the sliding door to Toddler Room 1;
•closing of the Kindy room and Toddler room windows;
•undertaking to locate air-conditioning units on the western corner of the site, where required; and
•undertaking to construct a noise barrier in the staff carpark, if required.

Issue 5 focused on the noise breakout from internal activities and the appropriate measure to ameliorate noise emissions. The acoustic experts agree that noise emanating from within Toddler Room 2 would be compliant with all doors and windows open or closed, and that noise emanating from within the Kindy Room would be compliant with doors and windows open or closed, provided the windows on the south-eastern façade were closed. The acoustic experts disagree on whether the closing of the windows on the south-eastern façade during noisy activities could be controlled by way of an operational noise management plan or needed to be permanently fixed in a closed position.
In relation to Toddler Room 1 both acoustic experts held concerns about noise emissions from activities that involved music and/or singing. Mr Warpenius was concerned about children crying. Mr Reynolds' solution involved the closing of the windows when there was a noisy activity. Mr Warpenius agreed that this solution would ameliorate the noise emissions but was concerned that there may be a ventilation issue as these windows are the only windows to Toddler Room 1.
However, both acoustic experts agree that an alternative treatment involving the installation of a noise barrier of sufficient height along the common boundary of No 5 would ensure compliance with the Noise Regs even with the windows open on the south-eastern elevation. Mr Warpenius is of the view that the height of the noise barrier would need to be 2.5 metres, while Mr Reynolds considers that a baffle with the max height of 2.2 metres comprising a vertical section to 2 metres and an angled section to around 2.2 metres would be sufficient. In oral evidence the acoustic experts agreed that the effectiveness of the two barriers would be much the same.
Issue 6 concentrated on the staff and visitor car parking areas. Mr Warpenius says that his modelling of the staff car parking area demonstrates that noise from car doors closing would exceed the assigned levels by up to 2dB(A) at the noise sensitive premise at No 5. Mr Reynolds' modelling did not indicate any exceedances as his modelling was based on a previous design layout that did not include the three staff car parking bays. However, Mr Warpenius surmises that using Mr Reynolds noise data relating to car doors closing the exceedance could increase to 5 dB(A). Mr Reynolds did not dispute this assertion.
Mr Reynolds considers that the noise from car doors closing in the staff car parking area could be managed to maintain compliance, whereas as Mr Warpenius did not view this as an effective approach because of the difficulties confirming and enforcing compliance with such a strategy.
Further, although Mr Warpenius' modelling did not indicate any exceedance in the assigned levels for guest bays 1 to 4, which are in the front setback area, he is concerned about the cumulative noise impact on the amenity of No 5 from increased car movements[17] and other carpark activities, including engine starts, reversing beepers, car doors closing and people talking.
[17] Based on the TIS Mr Warpenius estimates the increase in traffic movements to be almost a 10-fold increase in carpark activity.
It is Mr Warpenius' view that 'strong "engineering" noise controls are needed to begin to address the issue of high noise, high activity and loss of amenity for all carpark activity'.[18] The treatment proffered is a noise barrier to shield carpark activity emanating from the staff car parking bays and guest bays 3 and 4. The noise barrier would commence at the boundary with Walkington Circle and extend along the common boundary with No 5, excluding the portion of the boundary wall to the garage on No 5, to approximately 5 metres beyond the staff car parking bays to align with the north-eastern wall of the Kindy Room. Mr Warpenius in the joint witness statement recommended that the height of the noise barrier be 2.5 metre for its total length but during crossexamination stated that he would be comfortable with the portion of the noise barrier extending from the boundary with Walkington Circle to the boundary wall of the garage on No 5 being reduced to 1.8 metres in height.[19]
[18] Joint Statement of Expert Witness (Mr M Warpenius and Mr T C Reynolds) dated 26 November 2021 (Exhibit 8) page 10.
[19] ts 97, 30 November 2021.
Mr Reynolds does not consider that the noise barrier is required as he maintains that the closing of the car doors in the staff car parking area can be managed and the noise emanating from the visitor car parking area (guest bays 1 to 4) is compliant with the assigned levels. However, he contends that if one is to be is to be installed it should take the form of a baffle with the maximum height of 2.2 metres comprising a vertical section to 2 metres and an angled section to around 2.2 metres extending along the common boundary with No 5 from the rear of the garage on No 5 to the acoustically transparent barrier between the outdoor area 3 (green space) and the staff car parking area.
During concurrent evidence the acoustic experts were questioned about whether the noise barrier should extend to the rear boundary of the subject land. Both experts agreed that if the noise barrier continues to the rear boundary then the need for an acoustic barrier between outdoor area 3 (green space) and outdoor area 2 is lessened and were comfortable with the suggestion of a 1.8 metre high Colorbond fence being installed between the two outdoor areas.[20]
[20] ts 84, 30 November 2021.
Mr Warpenius at the conclusion of oral evidence confirmed that 'there are enough differences [in the project] … that I'm very comfortable … with the treatments put forward in the joint statement as being adequately suitable to address the acoustic and the amenity issue of this project'.[21]
[21] ts 96, 30 November 2021.
On the issue of the location of the noise barrier(s) on the site in terms of reducing the visual impact on No 5 and the streetscape, Mr Allerding made the following observations:
•the noise barrier for the play area should be located in its closest position to the play space as opposed to on the boundary as this location would provide a better interface with No 5;[22]
•the noise barrier for the staff car parking bays would be preferable off the boundary as shown in Mr Reynolds option, if the performance were equivalent to the alternate proposed by Mr Warpenius;[23] and
•there are competing interests relating to noise and visual amenity in relation to the height of the noise barrier adjacent to guest bays 3 and 4. The imposition of a barrier in the front setback would not be desirable from a visual amenity perspective because of its interface with the street and the introduction of a fence at 1.8 metre height would be a foreign element in that particular street, but may be necessary in order to protect the amenity interests of the property owner of the adjoining property.[24]
[22] ts 123 and 125, 1 December 2021.
[23] ts 125, 1 December 2021.
[24] ts 125 and 128, 1 December 2021.
Mr Maiorana was satisfied that the agreed solutions put forward by the acoustic experts to resolve the noise impacts were acceptable from a visual amenity impact on No 5. Regarding the treatment of the car parking area within the front setback area, Mr Maiorana agreed that there were competing impacts around amenity. However, he was not overly concerned about the amenity impact on No 5 due to the limited period guest bays 3 and 4 would be used because of the nature of the use and he did not consider the extension of a 1.8 metre fence in the front setback area to be desirable. However, if the fence was to be extended, he suggested that the visual impact of the fence could be reduced to some extent by landscaping.
On the evidence, the Tribunal is satisfied that there are solutions available that will resolve the noise issues from the different noise sources identified by the acoustic experts and that these measures are capable of being imposed as conditions, if the Tribunal determines that approval of the proposed development is warranted.
The Tribunal is not convinced that imposing restrictions on the operational management of the child care premises requiring the closing of windows on the south-eastern elevation during certain activities and the closing of car doors in the staff car parking area, as advocated by Mr Reynolds, is a satisfactory solution as it would be difficult to manage and enforce.

The Tribunal considers the most appropriate measure to be the installation of a noise barrier of sufficient height adjacent to the staff bays extending past the car bays to shield the windows on the south-eastern elevation of the Kindy room. Further, given that the effectiveness of the two alternates as put forward by the acoustic experts are equivalent, the Tribunal is of the view that a noise barrier of the height dimensions advocated by Mr Reynolds and setback from the common boundary with No 5 is a better solution as the visual impact of the noise barrier on the residents of No 5 will be lessened.
In addition, the Tribunal agrees with Mr Allerding that from a visual amenity perspective from No 5 the retention of the 1.8 metre high acoustically treated fence between the outdoor area 3 (green space) and outdoor area 2 is a better solution than extending the noise barrier to the rear boundary of the site.
In regard to the noise emissions from the visitor car parking area, in particular guest bays 3 and 4, the evidence of the acoustic experts is that the visitor car parking area is compliant with the assigned levels. Notwithstanding, Mr Warpenius is of the view that a 1.8 metre high noise barrier should be installed adjacent to guest bays 3 and 4 to control the accumulation of noise coming from carpark entering the residence at No 5 through an open front door. Mr Reynolds does not consider it necessary to replace the existing fencing with a 1.8 metre high noise barrier adjacent to guest bays 3 and 4 because his assessment concludes that noise from the visitor carpark associated with people talking, car movements and car doors closing would comply with the regulatory requirements. As the planning experts pointed out, the installation of a 1.8 metre high noise barrier adjacent to guest bays 3 and 4 in order to reduce the noise emissions from the car parking area will introduce a built form element in the front setback area that will have visual amenity impact on the streetscape. On balance, in weighing the amenity considerations the Tribunal considers the degree of impact on No 5 is likely to be minimal as the exposure is limited due to the nature of the land use, the point of exposure being confined (open front door), and the noise emissions are compliant with the assigned levels, and as such, does not warrant the introduction of an element that will adversely affect the visual amenity of the streetscape of the locality.
The Tribunal finds that noise emissions from the proposed development can be adequately resolved by the following additional measures being incorporated into the proposed development:
•introducing an acoustically transparent barrier between the outdoor area 3 (green space) and the staff car parking area;
•removal of the sliding door to Toddler Room 1;
•any raised play equipment being located towards the north-west half of the outdoor area 2 and/or located within outdoor play area 1;
•locating new air-conditioning units on the western corner of the site;
•the installation of an acoustically treated fence at a height of at least 1.8 metres between outdoor area 3 (green space) and outdoor area 2; and
•the installation of a noise barrier/baffle to mitigate the noise emissions from the staff car parking bays and the opening of windows on the south-eastern elevation of the building. The noise barrier/baffle is to be a maximum height of 2.2 metres comprising a vertical section to 2 metres and an angled section to a height of 2.2 metres, setback approximately 1 metre from the common boundary with No 5 extending approximately 19.5 metres from the rear wall of the double garage on No 5 to align with the northern eastern wall of the Kindy Room.

1d) Whether the proposed development is compatible with the surrounding residential setting?

The respondent contends that the proposed conversion of the single residential dwelling to child care premises is inappropriately located for its intended purpose. The respondent submits that the proposed development introduces a non-residential 'Community' use of a scale and form that is incompatible with the exclusively low density single residential area.
Mr Allerding accepts that the introduction of a non-residential Community use into a residential area itself is not objectionable and considers the November 2021 application to be a better planning outcome than the December 2020 application. Nevertheless, he maintains that in the context of an exclusively low density single residential environment, the proposed development positioned on a closed loop access road adjacent to a T-intersection, together with the constraints associated with retaining the existing building resulting in an unusual car parking configuration which may give rise to amenity impacts, is incompatible with the surrounding residential setting.
Mr Maiorana considers the proposed development to be compatible with the surrounding residential setting and gave the following oral evidence supporting his opinion:
… in the sense of this particular residential cell, Walkington Circle, again, I think I've worked through the thinking that I've employed in respect to the compatibility of this - this land use in this particular context, that being the location at the extent of the residential area, the scale of the proposal, the fact that there's only one immediately adjoining neighbour, the fact that the use is accommodated within an existing dwelling that requires fairly minimal external works to convert it, and - and the ability to manage any potential impacts related to noise, to accommodation parking on site and not overly impact on the - the function of the street in terms of the access to the - to the development site, being the first crossover encountered when vehicles - vehicles enter Walkington Circle. They're the elements that I considered in arriving at the conclusion that the - the land use compatible with and complementary to residential development in this - in this particular case
It is well established that child care centres are an appropriate use in residential areas.[25] As to whether it is appropriate to exercise discretion to approval such an application will be dependent on the circumstances of the case. The Tribunal acknowledges that the proposed development will introduce a non-residential use in a low density single residential area, however, given the location of the proposed development in the context of the residential cell, the scale, built form, and appearance of the proposal the Tribunal is satisfied that the proposed development will not bring about a significant change in the streetscape and is compatible with its setting.

Would approval of the proposed development be consistent with orderly and proper planning and the preservation of the amenity of the locality?
[25] Ienco and City of Melville [2007] WASAT 56 (Ienco) at [65] (Mr P McNab M).

The question of orderly and proper planning arises under cl 67(b) of the former deemed provisions. In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179]-[182], Pritchard J considered the meaning of the expression 'orderly and proper planning' and emphasised that an assessment as to whether a proposed development is consistent with orderly and proper planning requires an objective, disciplined, methodical, logical and systematic approach. Her Honour said the following (citations omitted):
179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
The City contends that approval of the proposed development would be contrary to orderly and proper planning as the nature and form of the proposal is inconsistent with the nature and form of development contemplated by the planning framework. The respondent relies on three planning documents in support of this argument. Firstly, the respondent says that the approved structure plan (Development Plan - Area E) is very specific in providing for low density residential development in DA 1 and does not designate any lot in Walkington Circle for any use other than residential. Secondly, the respondent submits that the LP Strategy provides guidance on the location of child care centres as it seeks to incorporate 'playgroups' within community centres wherever possible. Thirdly, the proposed development does not satisfy the locational criteria and site characteristics as set out in the Western Australian Planning Commission's Planning Bulletin 72/2009 - Child Care Centres (Bulletin 72).
The Tribunal is satisfied that the existing planning framework does not pose an impediment to the approval of the proposed development for the following reasons. Firstly, whilst it is acknowledged that the Development Plan - Area E details the subdivision design and designates land for Residential specifying an R coding, Public Open Space and Drainage Reserve for DA 1, as accepted by the planning experts it would be expected that any future zoning of the subject site, as required by cl 5.4.2 of LPS 8, would be 'Residential' and child care premises are capable of approval in the Residential zone in the exercise of planning discretion.
Secondly, on the face of the LP Strategy, the Tribunal accepts that the reference to 'playgroups' encompasses child care centres as a direct nexus can be drawn from Table 7: Anticipated community facility needs Karratha 2031 under the 'Commentary' section of the 'Family Support' community facility.[26] However, as stated in the preamble of the LP Strategy '… it is dynamic and provides flexibility rather than prescription to achieve the City's, and ultimately the community's aspirations'. As agreed by the planning experts it is an aspirational statement in a 'guiding document' that does not exclude such facilities being located elsewhere. It is a consideration but not one that is determinative.
[26] Extract from LP Strategy (Feb 2021) (Section 5.3 page 24) - Annexure SGA2 to Witness Statement of Mr Stephen Geoffrey Allerding dated 12 November 2021 (Exhibit 6).
Thirdly, planning bulletins are not captured as planning instruments in State Planning Policy No 1 State Planning Framework (SPP 1). Although it is intended that planning bulletins that set out a policy position will be renamed as 'Position Statements', this has not occurred for Bulletin 72. It is also notes that 'Child Care Centres' is listed in Table 5: Guidelines and not in Table 4: Position Statements of SPP 1. As the Tribunal articulated in Mackenzie and City of Stirling [2015] WASAT 144 at [49] (Mackenzie) '[t]he Bulletin is, on the face of the document, a document that provides guidance to local governments in the preparation of scheme provisions and local policies on child care centres. It is not itself a policy of the Western Australian Planning Commission'. Further, it is an instrument that was adopted in 2009 and has not been updated to reflect the current State planning framework or contemporary planning approaches. This raises the question of what regard, if any, the Tribunal should have to the guidance contained in Bulletin 72 in deciding whether or not to approve the proposed development. The Tribunal has previously adopted the approach that there may be a need to have regard to the Bulletin 72 when determining a development proposal concerning a child care centre, particularly where there is no adopted local planning policy.[27]
[27] Ienco at [25] and Mackenzie.
It is unfortunate that the respondent has not adopted a local planning policy to guide the location, considerations and standards that should apply to the development of child care premises in its locality. The guidance provided in Bulletin 72 has general application only as its purview is broad and does not take into account local context.
The respondent submits that the proposed development does not meet a range of desirable criteria establish under Bulletin 72 as the area of the site is less than the minimum 1000m² recommended, which constrains development on site and access is exclusively from an access street that functions as a loop road. Further, the site is not located close to public transport, is not in easy walking distance or part of a Commercial Recreational Community Node/Educational Facilities and has limited access by footpaths and dual use paths.
There is no dispute that the proposed development does not meet some of the criteria set out in Bulletin 72. The applicant, however, alluded to the social benefits of providing a community service in demand in the wider locality and pointed to the locational attributes of the site, being, that it shares a boundary with only one other residential property; is easily accessible from Bathgate Road which connects to Baywiew Road to the north and Dampier Road to the South; and traffic to the site would not have reason to travel past other properties on Walkington Circle. The applicant further argued that the proposed child care premises is appropriately located to service the broader locality and that the location of the site is suitable to accommodate the proposed development due to its scale and that there will be minimal impact on the functionality and amenity of the immediate locality as evinced in the TIS and by the acoustic experts.
The Tribunal in Mackenzie did not accept that Bulletin 72 imposed any necessary minimum site requirement for child care premised and observed as follows:[28]
As a matter of logic, the size of site required for any particular child care centre must depend to a large degree on how large the buildings and associated structures are an how many children and staff are to be accommodated in the centre. It may also be affected by the ways in which activities at the centre are to be carried out.
[28] Mackenzie at [53].
Given the scale of the proposed development the Tribunal is not troubled by the size of the site being less than that specified in Bulletin 72 or that the site is located on a local road in a low density residential area because the evidence demonstrates that variance with these guidelines do not result in the proposed development adversely affecting the amenity of the locality. The Tribunal also notes that the proposed development is not located close to public transport. The planning experts, in oral evidence, agreed that it is aspirational to seek to locate child care premises close to public transport and acknowledged that this may not be possible in regional areas such as Karratha. The evidence adduced demonstrates that there is sufficient car parking provided to meet the demand generated by the proposed development and therefore, although choice of mode of transport is desirable, it is not essential in the circumstances of this case.
In assessing the particular circumstances of this application against the established planning framework the Tribunal is satisfied, for the reasons expressed above, that the nature and form of the proposed development is consistent with the planning framework and is capable of approval in the exercise of discretion.

Amenity

The respondent contends that the size and configuration of the site presents constraints on the capability of the site to ensure the amenity expectations of the residents of Walkington Circle can be protected against the adverse impacts that will occur as a result of the parking configuration, traffic and noise associated with the proposed development. The respondent submits that all the potential impacts on the existing character and amenity of Walkington Circle must be considered cumulatively to determine the suitability of this locality and the suitability of the site for a child care premises. It is the respondent's view that when all of those things are considered, neither the location nor the site is suitable.
Clause 67(n) of the deemed provisions requires the local government (and the Tribunal on review) to have due regard to the amenity of the locality including the following:- the character of the locality and the social impacts of the development. 'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. As articulated by the Tribunal in Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 at [38], planning law in relation to the assessment of amenity impact is well settled. The approach adopted is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, where the Town Planning Appeal Tribunal observed at 304 that '[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. Consistent with the definition of amenity in cl 1 of the deemed provisions, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] also confirmed that an evaluation of amenity should take account of future amenity. Further, as articulated in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] (Canning Mews):
… in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity], a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents [of the locality who] are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]

The Tribunal heard evidence from Ms Forwood, who expressed concerns about the overall suitability of the location of the child care premises, highlighting issues of road safety, increase traffic, inadequate car parking and noise pollution. The Tribunal was assisted by the views expressed by Ms Forwood.
The respondent also tendered a petition signed by 38 owners and residents of Walkington Circle objecting to the proposed development, informed by the content of Ms Forwood's witness statement and the February 2021 plans.[29] The Tribunal normally does not give great weight to petitions because the petitioners are not able to be tested in a Tribunal hearing[30] and more particularly in this instance, there has since been modifications to the proposed development that the signatories would not be aware of given the date on which the petition was signed.
[29] Petition from Owners and Residents of Walkington Circle object to the Child-Care centre Application at 3 Walkington Circle Millars Well (Exhibit 16).
[30] Grace and City of Nedlands [2010] WASAT 53 at [52].
The Tribunal in Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187 considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
Mr Maiorana considers the 'locality' to be '- [a]ll of the land, both developed and undeveloped with frontage to Walkington Circle from its intersection with Bathgate Road; and - [t]he drainage reserve on Lot 301 (located adjacent the subject site to the north-west) and Lot 300'.[31] This evidence was not challenged or contradicted, and the Tribunal accepts that the area described by Mr Maiorana is the 'locality' for the purposes of this review.
[31] Witness Statement of David Anthony Maiorana dated 12 November 2021 (Exhibit 11) at para 80.
Mr Maiorana describes the character of the locality as follows:
The existing character of the locality is characterised by established single storey residential development fronting Walkington Circle. Walkington Circle generally present as an open streetscape including properties with established gardens and some street trees. Verges are typically treated with 'hard landscaping' using a variety of gravels and stone chips, often compacted and in some cases use for parking of boats and trailers. Wide crossovers are evident in some cases providing for access to triple garages/ additional parking areas.
Corner lots including Lot 240 (No 38) Walkington Circle have solid panel (Colorbond) fencing along the secondary street frontage.[32]
[32] Witness Statement of David Anthony Maiorana dated 12 November 2021 (Exhibit 11) at paras 83-84.
Mr Allerding, in oral evidence, described the character of Walkington Circle as a very open street with a high degree of regularity, not only in terms of the design of the houses but in terms of the treatment towards the street. Of particular note was the 'homogeneity' and the 'exclusivity of the area'.[33] He also considers the locality to be 'quite remote from anything, from public transportation, other services and facilities'.
[33] ts 131, 1 December 2021.
The evidence of Ms Forwood about the 'unique nature of Walkington Circle' also assists in defining the character of the locality. She attributes the unique nature to the fact that Walkington Circle is a 'standalone' street with no thoroughfare, which creates a very safe, secure, quiet, and aesthetic environment.
The evidence from the planning experts and the resident witness describing the character of the locality are broadly consistent with each other and that observed on the view. No evidence was adduced by the parties to suggest that the 'likely future amenity', that is the likely future character of the locality, is to be any different to that which already exists.
As to the manner in which the proposed development will affect the amenity of the locality and the degree of impact on the locality, the respondent contends that the introduction of a non-residential use that will increase the average daily traffic on the Walkington Circle Tintersection by 25 percent, together with increased traffic movements in and out of the subject land and the possibility of overflow parking on the street will have the effect of introducing a different development character that will reduced traffic safety and compromise the existing amenity of the locality. Mr Allerding, in oral evidence, accepted that the predicted increase in traffic generated by the proposed development would not affect the functionality of Walkington Circle but expressed some reservation about the functionality of the car parking arrangements leading to visitors parking on the street thereby increasing the potential for traffic conflicts and reducing the safety of the Walkington Circle as a loop road servicing the residential cell. Ms Forwood also identified increased traffic and inadequate parking as impacts that would affect the amenity of the locality as she perceived that road safety would be reduced because of the proposed development.
The Tribunal in issue 1b) above addressed concerns around the car parking configuration and accepted the conclusions in the TIS that the proposed carpark is expected to safely accommodate ingress and egress movements and will not compromise road safety. Further, the Tribunal is satisfied that should any potential traffic conflicts arise from visitors parking on the street there are traffic management solutions available to the local government that would prevent vehicle parking on the verge or road pavement.
There is no doubt that the proposed development will introduce additional traffic on a short segment of Walkington Circle between Bathgate Road and the proposed development and increase traffic movements in and out of the site, which will affect all the residents in Walkington Circle due to the road layout. However, Tribunal accepts the conclusions in the TIS that 'the anticipated vehicle trips on Walkington Circle [334 vehicles per day] is significantly less than the projected maximum volume for an Access Street D' and that 'the additional trips generated by the proposed development will not alter function and characteristics of Walkington Circle' and consequentially will 'have no material impact on the surrounding road network and no material impact on residential amenity'.[34]
[34] Respondents s 24 Bundle of Documents dated 3 September 2021 (Exhibit 4) pages 197 and 199 - TIS dated 9 June 2021
The respondent also asserts that noise emissions emanating from the proposed development will adversely affect the amenity of residents at No. 5. This issue has been addressed in issue 1c) above and the Tribunal is satisfied that solutions are available, and if implemented, will mitigate noise emissions generated by the proposed development and ensure a reasonable level of amenity for the residents at No. 5.
The Tribunal acknowledges the concerns raised by Ms Forwood and the respondent but is satisfied based on the TIS and subject to the ameliorative measures recommended by the acoustic experts being imposed on an approval the degree of impact from the proposed development on the amenity of the locality will not be so unreasonable as to warrant refusal of the application.

Conclusion

Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval to the proposed development.
For all the reasons above, the Tribunal is persuaded the correct and preferable decision in all of the circumstances of this case, is to set aside the respondent's decision and to substitute a decision to approve the development application subject to the imposition of appropriate conditions.

Conditions

In accordance with the Tribunal's usual practice and programming orders, the City formulated and provided a set of draft 'without prejudice' conditions which it contends should be imposed if the Tribunal considers that approval of the development application subject to conditions is appropriate[35] and the applicant provided a response.[36] A further revised response to the draft without prejudice conditions was filed by the applicant during the hearing.[37]
[35] Exhibit 9.
[36] Exhibit 13.
[37] Exhibit 14.
The applicant initially objected to proposed condition 2 but in closing submissions after hearing from the respondent did not press the objection to this condition. The conditions in dispute relate to proposed conditions 6 and 7, which read as follows:
6.Damage to road pavements, kerbing, footpaths, pram ramps or City assets caused by construction activity including, but not limited to vehicle movements and construction of crossovers, shall be repaired or replaced at the proponents (sic) cost, in accordance with specifications and works specifications and works supervision and scheduling arrangements to be approved by the City of Karratha;
7.The Operational Noise Management Plan for this development being revised in the following ways to the satisfaction of the City of Karratha prior to operation:
a)Include procedures for responding to complaints that demonstrate to the City of Karratha that any reasonable complaint will be taken seriously, be responded to with meaningful actions or changes to operations and both the City and the complainant being satisfied with the outcome;
b)including noise mitigation measures satisfactory to maintain modelled noise levels at the neighbouring property being approved and implemented to the satisfaction of the City of Karratha prior to the operation to protect the reasonable amenity expectations of the neighbouring property at Lot 222 Walkington Circle;

Condition 6

The applicant seeks the deletion of this condition. The applicant contends that the text constitutes an advice note, rather than a condition of approval and is correctly dealt with via processes set out in the Local Government (Uniform Local Provisions) Regulations 1996 (WA). No argument was presented for the inclusion of this condition by the respondent, other than to advocate that it is a standard condition that is consistently applied by the City. This is not a sufficient reason to impose such a condition. The Tribunal in a number of decisions has articulated that it is generally inappropriate and unnecessary to impose a condition of planning approval that duplicates compliance with otherwise applicable legislative provisions.[38] The Tribunal, in this instance, does not see any utility in imposing this condition as any damages to the City's assets arising from the proposed development can be dealt with under the processes set out in the Local Government (Uniform Local Provisions) Regulations 1996.

Condition 7

[38] Mann and City of Rockingham [2006] WASAT 115; Hanson Construction Materials Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 140; Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 174.

The applicant does not object to subclause a) of the proposed condition but objects in part to subclause b) as the applicant says there is ambiguity as to which party's satisfaction/expectation applies. Both planning experts, in oral evidence, considered the wording of subclause b) as submitted by the respondent to be problematic. The applicant suggests that subclause b) be amended to read as follow:
b)Include noise mitigation measures satisfactory to maintain modelled noise levels at the neighbouring property being approved and implemented to the satisfaction of the City of Karratha prior to operation. These mitigation measure should include, but not be limited to:
(i)Details on all air-conditioning units, both existing and proposed, illustrating compliance with the Environmental Protection (Noise) Regulations 1997;
(ii)Details of play equipment structures in the outdoor play areas;
(iii)Details of restricted activities in the outdoor areas, e.g. singing activities and parties/functions.
The Tribunal in determining whether to exercise the statutory discretion conferred by LPS 8 is required to be satisfied that it has the power to impose proposed conditions, even if the conditions are not opposed.[39] Notwithstanding the applicant did not raise any objection to subclause a), this subclause in its current form lacks certainty and finality as the condition is reliant on the actions of a third party (a complainant being satisfied with the outcome), and therefore, the Tribunal considers that subclause a) in its current form should not be imposed. The Tribunal is of the view that this can be easily remedied by substituting the words 'and both the City and the complainant' with 'and the City', however, the Tribunal will hear submissions from both parties on the final wording of the condition to be imposed.
[39] Randall and Town of Vincent [2005] WASAT 147 at [21].
Regarding subclause b), both planning experts agreed in oral evidence the rewording of subclause b) as proposed by the applicant to be reasonable and clear in its intent.
The applicant also suggested that the following additional subclause be added to proposed condition 7:
c)Include details of the proposed acoustic barrier near the common boundary with Lot 222 Walkington Circle which is to be located between the rear boundary and the commencement of the first staff parking bay.
Although there was some discussion during the hearing as to whether subclause c) should be a stand-alone condition, it was agreed that the form of the condition would ultimately be dependent on the findings of the Tribunal regarding issue 1c). The Tribunal intends to hear from the parties as to the final form of the condition to be imposed in respect to this matter.

Additional condition requiring a waste management plan

During the course of the hearing, the respondent raised concerns about potential odour emissions from the waste generated by the proposed development impacting the amenity of the residents at No 5; an issue not set out in respondent's Statement of Issues, Facts and Contentions. The applicant, although taken by surprise, was content to respond to this issue by agreeing to the imposition of a condition requiring a waste management plan to be submitted and approved by the City prior to the commencement of the operation of the child care premises and that plan being implemented at all time to the satisfaction of the City. The respondent and both planning experts agreed a condition of this nature could appropriately deal with the issue and a reasonable condition to impose in this instance. The Tribunal is satisfied that such a condition is warranted in the circumstances of this case.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 22 February 2021 to refuse to grant development approval under the City of Karratha Local Planning Scheme No 8 (LPS 8) for Change of Use - Single House to Child Care Premises on No 3 (Lot 221) Walkington Circle, Millars Well is set aside and a decision is substituted that development approval is granted under LPS 8 for Change of Use - Single House to Child Care Premises subject to the conditions in Attachment A.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
30 MARCH 2022

Attachment A - Conditions of Approval

The development shall be in accordance with plans MCU01, MCU02, MCU03, MCU04, MCU05 prepared by Studio 4 Building Design dated 22 November 2021 and shall not be altered without the prior written consent from the City of Karratha.
The decision to approve shall expire if the development has not substantially commenced and is in continuation within two [2] years of the date of this decision.
The operating hours shall be restricted to Monday-Friday: 7:30 am to 5:30 pm.
A detailed Landscaping Plan is to be submitted to and approved by the City of Karratha prior to operations commencing on site. Landscaping in accordance with the approved plan is to be planted and installed prior to operations beginning on site and thereafter maintained at all times, to the satisfaction of the City of Karratha.
All car parking, vehicle access and circulation areas are to be adequately paved, drained and made available at all times for car parking at all times the child care premises is operational and thereafter maintained to the satisfaction of the City of Karratha.
The Operational Noise Management Plan for the child care premises being revised to reflect the development as approved and in the following manner to the satisfaction of the City of Karratha prior to commencement of operation of the child care premises:
a)include procedures for responding to complaints that demonstrate that any reasonable complaint will be taken seriously, be responded to with meaningful actions or changes to operations to the satisfaction of the City of Karratha; and
b)include noise mitigation measures satisfactory to maintain noise levels at the noise sensitive premise on No 5 (Lot 222) Walkington Circle, Millars Well (No 5), being approved and implemented to the satisfaction of the City of Karratha prior to operation of the child care premises. These mitigation measure shall include:
(i)Details on all air-conditioning units, both existing and proposed, illustrating compliance with the Environmental Protection (Noise) Regulations 1997.
(ii)Details of play equipment structures in the outdoor play areas.
(iii)Removal of the sliding door to Toddler Room 1.
(iv)Installation of an acoustically transparent barrier between the outdoor area 3 (green space) and the staff car parking area.
(v)The installation of an acoustically treated fence at a height of at least 1.8 metres between outdoor area 3 (green space) and outdoor area 2.
(vi)The installation of a noise barrier/baffle to mitigate the noise emissions from the staff car parking bays and the opening of windows on the south-eastern elevation of the building. The noise barrier/baffle is to be a max height of 2.2 metres comprising a vertical section to 2 metres and an angled section to a height of 2.2 metres, set back approximately 1 metre from the common boundary with No 5 extending approximately 19.5 metres from the rear wall of the double garage on No 5 to align with the northern eastern wall of the Kindy Room.
(vii)Details of restricted activities in the outdoor areas, e.g. singing activities and parties/functions.
The Operational Noise Management Plan must be submitted and approved by the City of Karratha prior to operations commencing on site and must be implemented at all times the child care premises is operational to the satisfaction of the City of Karratha.
Stormwater shall be discharged in a manner so that there is no discharge onto adjoining properties to the satisfaction of the City of Karratha.
All parking associated with the child care premises shall be contained with the property boundaries of Lot 221 on Plan 44811.
The maximum number of children permitted at the approved development at any one time is twenty (20) and the maximum number of staff permitted at the approved development at any one time is three (3).
A Waste Management Plan must be submitted and approved by the City of Karratha prior to operations commencing on site and must be implemented at all times the child care premises is operational to the satisfaction of the City of Karratha. The plan is to specify treatment measures for the proposed bin area(s) together with any additional management requirements so that odours from any putrescible waste is minimised.