Rata and Town Of Vincent

Case •

[2009] WASAT 32

•

25 FEBRUARY 2009

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   RATA and TOWN OF VINCENT [2009] WASAT 32

MEMBER:   MS M CONNOR (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   25 FEBRUARY 2009

FILE NO/S:   DR 252 of 2008

BETWEEN:   DANIEL RATA

Applicant

AND

TOWN OF VINCENT
Respondent

Catchwords:

Town planning - Development application - Change of use from single house to office building (music industry) - Approval requires exercise of discretion after giving special notice - Planning policies guide the exercise of discretion - Orderly and proper planning - Preservation of amenity of the locality - Adverse planning precedent

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 60(2)
Town of Vincent Town Planning Scheme No 1 , cl 6, cl 6(3), cl 10, cl 18, cl 37, cl 38(3), cl 38(5), cl 38(5)(b), cl 38(5)(g), cl 38(5)(h), cl 47, cl 47(9)

Result:

The application for review is dismissed
The decision of the respondent is affirmed

Category:    B

Representation:

Counsel:

Applicant:     Peter Webb (Acting as Agent)

Respondent:     Remajee Narroo (Acting as Agent)

Solicitors:

Applicant:     Peter D Webb & Associates (Town Planners)

Respondent:     Town of Vincent

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

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. Mr Rata applied to the State Administrative Tribunal for review of the Town of Vincent's decision to refuse planning approval for a change of use from 'Single House' to 'Office Building (Music Industry)' and associated alterations and signage at No 261 (Lot 16) Bulwer Street, Perth.

  2. The two principal issues that emerged for consideration in the review were:

    i)whether the proposed development was consistent with the orderly and proper planning and preservation of amenities of the locality; and

    ii)whether approval of the proposed development would create an undesirable precedent for other similar commercial use developments encroaching into established residential areas.

  3. The Tribunal determined that the site was an inappropriate location for an office because it would unreasonably interrupt the residential amenity and continuity of residential uses within that section of Bulwer Street and undermine the consolidation of identified commercial nodes.  The Tribunal considered that the exercise of discretion should not be granted as the change of use of the subject land from 'Residential' to 'Office Building' would prejudice the orderly and proper planning for the area and diminish the existing and likely future amenity of the locality and set an adverse planning precedent in the circumstances.  The application for review was dismissed and the respondent's decision affirmed.

Introduction

  1. An application for planning approval was lodged with the Town of Vincent (respondent or Town) on 5 February 2008 for a change of use from 'Single House' to 'Office Building (Music Industry)' and associated alterations and signage as shown in plans dated 14 February 2008 at No 261 (Lot 16) Bulwer Street, Perth (subject land).

  2. The application to commence development was refused by the respondent at its meeting of 27 May 2008 for the following reasons:

    (i)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality;

    (ii)the non­compliance with the Town's Policies relating to Non­Residential/Residential Development Interface, Sign and Advertising, and Parking and Access, and the objectives of the Town's Town Planning Scheme No 1 and Town's Economic Development Strategy; and

    (iii)approval of the proposed development would create an undesirable precedent for other similar commercial use developments encroaching into established residential areas.

  3. Mr Rata (applicant), on 23 June 2008, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

  4. Between July and August 2008, the parties engaged in a mediation process, facilitated by a Tribunal member, which clarified the extent and nature of the proposal applied for and resulted in an invitation by the Tribunal to the respondent to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Town confirmed its refusal of the development application.

  5. Pursuant to s 60(2) of the SAT Act, conduct of the matter proceeded entirely on the documents, although the Tribunal had the benefit of a view accompanied by representatives of the respective parties.

Subject land and its immediate context

  1. The subject land is 329 square metres in area and is one of three lots located on the southern side of Bulwer Street, between Dangan Street and Earl Street.  A right of way, approximately 3.2 metres in width, abuts the rear boundary of the subject land and provides a link between Dangan Street and Earl Street.  The right of way is paved and drained and the subject land enjoys vehicular access off this right of way.

  2. According to the respondent's technical service branch, the average weekday traffic volumes at this point on Bulwer Street are in the order of 12,900 vehicles per day (as a total in both directions).

  3. There is an existing dwelling on the subject land which is currently used for residential purposes.  Both lots on either side of the subject land contain existing dwellings which are also used for residential purposes.

The proposal

  1. Although Mr Rata in his witness statement expressed an intention to carry out his business from the building while continuing to reside at the premises, the bulk of the evidence, including the plans submitted for approval, indicate the use of the entire building for office purposes.  The Tribunal has, as did the respondent, proceeded on the basis that what is being applied for is a change of use for the whole of the building to 'Office Building'.

  2. It is intended that the existing dwelling be used for office accommodation for Mr Rata's music business.  The following activities are proposed to be carried out within the building:

    •general office duties, including administration of the business and bookings associated with it;

    •creation and modification of an internet web page design and graphic design work associated with the marketing of the business;

    •creative processes associated with composing music and lyrics associated with the business.  It is asserted that 'there will be no music practice, using amplified guitars, drums or any other musical equipment which would create noise levels which are any where near those prescribed by the Environmental Protection (Noise) Regulations 1997 [(WA)]';

    •arranging and attending the occasional meeting with clients, booking agents and industry professionals, estimated to be on average three or four meetings a week;

    •storage of business documents, records, CDs and marketing material.

  3. It is indicated that the hours of operation would generally be between 8 am to 7 pm weekdays and 8 am to early/mid­afternoons on Saturdays.

  4. No external modifications are proposed to the dwellings and no signage is to be erected on site.  Three car parking bays are provided at the rear of the property, accessed via the right of way.

Planning Framework

  1. The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential' with a permitted density of R80 under the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme). 

  2. Clause 6(3) sets out the 'Objective and Intentions' of TPS 1.  The general objectives of the Scheme that are of particular relevance to this matter are:

    (a)to cater for the diversity of demands, interests and lifestyles by facilitating and encouraging the provision of a wide range of choices in housing, business, employment, education, leisure, transport and access opportunities;

    …

    (c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which ­

    (i)recognises the individual character and needs of localities within the Scheme zone area; and

    (ii)can respond readily to change;

    …

    (e)to promote and safeguard the economic well­being and functions of the Town;

  3. Clause 10 of TPS 1, which reinforces the objectives stated in cl 6, divides the Scheme area into precincts and notes that for each precinct there is a planning policy contained in the Council's Policy Manual.  The subject land is located in precinct 'P12 Hyde Park'.

  4. The parties agree that the proposed use falls within the defined use class 'Office Building', which is an 'SA' in the 'Residential' zone and therefore not permitted unless the Council (or Tribunal), has exercised its discretion and has granted planning approval after giving special notice in accordance with cl 37 of the Scheme.  The proposed change of use has been advertised in accordance with cl 37, and two submissions were received. 

  5. Sub­clause 38(3) of the Scheme provides the authority for the Council to refuse or approve an application.  Without limiting the scope of the discretion to determine an application, sub­clause 38(5) of the Scheme sets out the matters to which regard is to be given in the determination of an application.  The pertinent matters relating to this application are as follows:

    •the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme (sub­clause (a));

    •any relevant planning policy (sub­clause (b));

    •any submission accompanying or related to the application (sub­clause (f));

    •the orderly and proper planning of the locality (sub­clause (g)); and

    •the conservation of the amenities of the locality (sub­clause (h)).

  6. Clause 47 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme.  These policies may be applied to all or part of the Scheme area.  A planning policy of the respondent that is relevant to this review is Policy No 3.4.3 Non Residential/Residential Development Interface (Policy 3.4.3).  This policy has been formulated and adopted by the Council under cl 47 of the Scheme.

  7. Sub­clause 47(9) of the Scheme provides that a planning policy prepared under cl 47 shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text prevail.

  8. Clause 18 and sub­clause 38(5)(b) of the Scheme both require consideration of planning policy in the determination of an application. 

  9. A further document referred to by the respondent was the Town of Vincent Economic Development Strategy 2005 ­ 2010 (Economic Development Strategy). 

Issues

  1. The issues, distilled from the grounds for refusal as outlined in the 'Refusal to Commence Development' notice issued on 10 June 2008 and reaffirmed by the respondent at its meeting of 9 September 2008, are:

    •whether the proposed development is consistent with the orderly and proper planning and the preservation of the amenities of the locality; and

    •whether approval of the proposed development would create an undesirable precedent for other similar commercial use developments encroaching into established residential areas.

  2. The Tribunal will address each issue in turn.

Whether the proposed development is consistent with the orderly and proper planning and the preservation of the amenities of the locality

  1. Under the provisions of TPS 1 an 'Office Building' in the 'Residential' zone is a use that is not permitted unless the Council (or the Tribunal in this instance) exercises its discretion and grants approval after giving special notice in accordance with the requirements of the Scheme. 

  2. The exercise of discretion must be exercised in accordance with sound planning principles, and planning policies are instruments formulated to guide the exercise of that discretion by way of expressing the apposite planning principles.  Further, an objective of TPS 1 is 'to ensure that the use and development is managed in an effective and efficient manner within a flexible framework …'.  Policies are a key planning tool utilised by the Scheme to guide and manage development within the municipality.  The respondent has formulated and adopted Policy No 3.4.3 to provide guidance on desirable and acceptable development within and adjoining both residential and non­residential areas.

  3. Policy 3.4.3 advocates that 'ad hoc or indiscriminate use of residential properties for non­residential uses where it would result in an unreasonable interruption of the residential amenity and continuity of residential uses' will not be supported.  The policy further specifies that '[o]nly those sites, commonly referred to as buffer sites, would be suited to low scale, low intensity, interactive uses which may serve the day­to­day needs of the local resident population and can generate pedestrian traffic and surveillance of the street'.  Buffer sites are identified as 'where different zonings adjoin, a buffer site is the lot (or lots) that abut one another separating one zone from the other'.  The subject lot does not meet this criterion and, as such, for the purposes of the policy is not a buffer site.

  4. For applications involving non-residential development in a residential zone, the policy requires the applicant to demonstrate that:

    a)the application complies with the objectives of [the] Policy;

    b)there is no suitable site within the non­residential or residential/commercial zones within close proximity of the proposed non­residential use; and

    c)the character of the building is to be retained and any internal alterations should not preclude the reconversion of the building back to residential at some future date.

  5. The applicant considered cl 1(i) of Policy 3.4.3 to be a relevant consideration; however, this clause is not on point because it relates to land immediately adjacent to residential areas, whereas this land, given the definition of 'residential area' in the policy, is within the residential area. 

  6. Another objective of TPS 1 is 'to promote and safeguard the economic well­being and functions of the Town'.  The respondent has adopted the Economic Development Strategy, which is intended to identify the Town's purpose and role, strategic positioning, resource allocation priorities and management practices, as they relate to fostering economic development in the Town into the foreseeable future.  The Economic Development Strategy identifies the economic hubs within the Town and provides strategies on how to promote and develop each of these areas.  To ensure the economic development of these areas, there is an underlying principle that any commercial development outside the identified hubs should not undermine the future planning of these areas and, in particular, should not lead to the development of further commercial precincts or nodes.  This principle is reflected in the objectives of Policy 3.4.3.

  7. The applicant contends that the proposed development is consistent with the objectives of TPS 1 and Policy 3.4.3 and that nothing in the Economic Development Strategy detracts from this application being approved.  The applicant submits that the proposed use of the building for office will not impact on the character of the building as all the elements of the classical North Perth architectural vernacular cottage are retained and the integrity of the building preserved.  Further, there is no signage proposed to be erected on the building or on site.

  8. It is the applicant's position that the proposed development will not adversely affect the amenity of the locality.  The applicant describes this part of Perth/North Perth as enjoying a rather cosmopolitan lifestyle where mixed uses are not at all inappropriate.  It is observed by the applicant, that there are a range of non­residential uses within close proximity to the subject land and asserted that the traffic on Bulwer Street is affecting the amenity of adjacent dwellings evidenced by the erection of front masonry walls along Bulwer Street.  The applicant contends that the proposed development will not compromise the amenity of the locality by virtue of its relatively benign use and that the casual observer will not even be aware of the commercial nature of the use.  The applicant considers that the impacts resulting from the proposed development will be no greater than those arising from a typical residential property and submits that its presence is likely to reasonably enhance security aspects of the locality and add to the cosmopolitan mix of the area.

  9. It is clear from the planning framework that the preferred location for non­residential uses is within the identified commercial nodes or adjacent buffer sites.  However, non­residential uses can be considered where they do not result in an unreasonable interruption of the residential amenity and continuity of residential uses.  The area is largely residential in character with non­residential uses occurring at cross intersections.  There are two commercial nodes within walking distance of the subject land (corner Bulwer Street and Fitzgerald Street; and corner Bulwer Street and Lake Street).  If approved, the proposed development will be an isolated non­residential use amidst residential uses.

  10. Although the proposed development does not change the built form of the building, and notwithstanding the applicant's claim that the proposed use is a 'benign' use, the use of the building as office accommodation will undoubtedly change the nature of the activities being carried out within the confines of the lot, which will diminish the residential character and amenity of the area.  The proposed development is not consistent with the objectives of the planning framework and is inappropriate in this location as it would unreasonably interrupt the residential amenity and continuity of residential uses within this section of Bulwer Street.  Further, it is considered that the nature of the proposed use will not enhance the cosmopolitan mix of the area; only undermine the consolidation of the identified commercial nodes.  It is considered that the change of use of the subject land from 'Residential' to 'Office Building' will prejudice the orderly and proper planning for the area and diminish the existing and likely future amenity of the locality (cl 38(5)(g) and cl 38(5)(h) of TPS 1).

Whether approval of the proposed development would create an undesirable precedent for other similar commercial use developments encroaching into established residential areas

  1. The issue of adverse planning precedent has been addressed in detail in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls).  At [74], the Tribunal adopted the following criteria stated by Lloyd J in Goldinv Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment:

    (1)that the proposed development or subdivision is not in itself unobjectionable; and

    (2)that there is more than a mere chance or possibility that there may be later undistinguishable applications.

  2. For the reasons stated above, the Tribunal has found that the proposed development is 'not unobjectionable' in that it is contrary to orderly and proper planning.  However, in order to determine that there is more than a mere chance or possibility that there may be later undistinguishable applications, it is necessary to identify specific sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics.  While the Town raised the issue of adverse planning precedent, there was no specific material in this regard put before the Tribunal.  However, it may be inferred that any existing residential properties with the same characteristics in the immediate vicinity of the subject land, such as the adjoining lots, could be exposed to a change of use application and therefore, there is more than a mere chance or possibility that there may be later undistinguished applications.

  1. In this case, each of these criteria is met and, therefore, adverse planning precedent is a relevant consideration.  The Tribunal is of the view that the cumulative impacts of development, such as the proposal, would erode the residential amenity and character of the area and undermine the planning purpose of the identified commercial nodes.  In the circumstances of this case, therefore, the consideration of adverse planning precedent also warrants refusal of the application.

Orders

  1. For the above reasons, the Tribunal makes the following orders:

    1.The application for review is dismissed.

    2.The decision of the respondent is affirmed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER

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Nicholls v Western Australian Planning Commission [2005] WASAT 40