REECE and TOWN OF VINCENT
[2006] WASAT 86
•31 MARCH 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: REECE and TOWN OF VINCENT [2006] WASAT 86
MEMBER: MS J SMITHSON (SESSIONAL MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 31 MARCH 2006
FILE NO/S: DR 420 of 2005
DR 522 of 2005
BETWEEN: DARREN ROBERT REECE
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning – Recreational facility – Nonresidential use in Residential zone – Gymnasium – Notice to desist use – Retrospective approval sought – Unauthorised use – Neighbour's objections – Dual use of residence – Mixed Use – Home Occupation – Application allowed
Legislation:
Environmental Protection (Noise) Regulations 1997
Health Act 1911 (WA)
Town Planning and Development Act 1928 (WA), s 8A, s 10(2)
Town of Vincent Town Planning Scheme No 1, cl 38(5), cl 53(1)
Result:
1. The application for review are allowed
2. The decision to issue the Notice under review is set aside and a decision is substituted approving the change of use upon certain conditions
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr S Bain
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These proceedings concerned an application for review of the Town of Vincent's (the Town) refusal to grant planning approval for the use of part of a residence for a recreational facility at No 24 Britannia Road, Mt Hawthorn.
The application proposed to continue an unauthorised use of a double garage of a single residential property classified by the Town as a "Recreational Facility (Gymnasium)". The use is referred to as "Riddlers Gym Muay Thai Boxing Academy".
The Town refused the application because: the use was considered an inappropriate use in a residential area; the building was not considered to be fit for the purpose proposed, and because to approve the application would create an undesirable precedent.
The Tribunal was not satisfied that it was an inappropriate use of part of the premises nor that the grounds for refusal were substantiated. The use was classified by the Town as a discretionary use in the residential area. The area of the residence being used for the intended purpose could readily accommodate the proposed use without undue adverse impacts on the amenity of adjoining neighbours, and there was no suggestion that any precedent created was inappropriate.
The application for review was upheld. Accordingly, a notice directed to Mr Reece issued by the Town and requiring the use to cease was set aside by the Tribunal.
Introduction
The applicant is Mr Darren Reece (the applicant), the sole operator of "Riddlers Gym Muay Thai Boxing Academy". The respondent is the Town of Vincent (the Town).
The applicant had, at some point prior to March 2004, converted the ground floor double garage of an existing two‑storey residence into a gymnasium (gym) for kick boxing. The garage is under the existing roofline of the main residence situated at Lot 150 (No 25) Britannia Road, Mt Hawthorn (site), on land which is zoned "Residential R30" under the Town of Vincent's Town Planning Scheme No 1 (TPS 1).
The Town describes the proposal as a change of use from "single house" to "single house and recreational facility (gymnasium) and associated alterations". At the time of the application to the Town for approval, it was noted that "the recreational facility use is existing and the alterations are proposed".
In June 2004, following a complaint from an immediate neighbour, the Town served notice on the applicant under s 10(2) of the Town Planning and Development Act 1928 (WA) (the Act) alleging unauthorised use of the premises for a gymnasium. The applicant was advised that approval of the Town was required to this use under the provisions of cl 53(1) of TPS 1.
Following lodgement and cancellation of a planning application for a change of use to facilitate the proposal in late 2004, a further written direction was served on the applicant in March 2005. On 20 April 2005, the applicant submitted an application to the Tribunal to review the notice. On 21 April 2005, a planning application for a change of use from "single house" to "single house and recreational facility (gymnasium)" was lodged with the Town. This was refused in July 2005 and a request for review was lodged.
On receipt of the planning application, the Town determined that the proposed use was a "Recreational Facility" which was a discretionary use ("AA use") in the Residential R30 zone under TPS 1. The proposal was advertised for 14 days. No submissions were received although the applicant provided a petition in support of the continued operation of the gym and five letters of support, including from a number of surrounding residents. Nineteen of the 55 signatories to the petition were described by the Town as "local residents".
The proposed use was described by the Town as a gymnasium in which Muay Thai, a type of kick boxing, is taught. The hours of operation are approximately 8.30 am to 7.15 pm Monday, and Wednesday to Friday inclusive; 8.30 am to 8.15 pm on Tuesdays and occasional use on a Saturday afternoon. The gym caters for one teacher (the applicant) and up to 14 students ranging from children to adults. No signage is proposed with the applicant advising the Town that the use is "temporary" until the clientele are sufficient to enable hiring of commercial facilities to be feasible.
For the reasons set out below in more detail, the Tribunal has determined that the application warrants approval (and that the notice should be set aside) for a number of reasons. In summary, these reasons are:
(i)The use is permissible with Town approval and the proper application of discretion concerning the operation in a residential area.
(ii)Subject to compliance with hours of operation and student numbers, the use is considered to be of sufficiently small scale to not have an adverse impact on the amenity of the area.
(iii)The proposal does not require any substantive external alterations to the building and can comply with the car parking provisions required by the Town.
(iv)There is nothing in the Town's policies or TPS 1 which would necessarily indicate refusal is warranted.
(v)The use provides a community service which is supported by a number of local residents including neighbours at the rear and directly opposite. No evidence was provided of opposition to the use by local residents or immediate neighbours, notwithstanding the original complaint. This is despite the fact that the use was advertised and has been operating for approximately two years.
(vi)The existing residence and site layout is of a design which facilitates mixed use of the property with minimal alterations or external impact.
(vii)The development would not create an undesirable precedent as demand for such commercial recreational uses in a residential street is considered to be minimal.
The subject land and surrounds
The site has an area of 739 square metres and contains a two‑storey relatively recently built residence at the rear, and an older two‑storey three bedroom circa 1970's brick and tile residence at the front of the lot. The use of the front residence is the subject of the application under review. The first floor is used for residential purposes with a double garage, laundry, toilet and storeroom at ground floor level. The ground floor and first floors can be separately accessed by external doors and the garage is accessed by two crossovers with a paved area available for tandem parking onsite in front of the garage.
The site is separated from two of the three immediately adjoining properties by a right‑of‑way on the northern and western boundaries. As indicated, a second residence has been built on the site to the rear. It is noted that the residents of this rear dwelling support the proposed use and one of the children is a regular student.
As part of the application, it was proposed to remove landscaping within the front setback to provide additional parking. This was not supported by the Town's officers. The vehicle access arrangements to the paved parking spaces at the front of the residence/gym were supported, albeit Town policies prefer that parking not be provided in the front setback. The Town's officers' support was on the basis that the parking is already provided in this location and the use is considered to be temporary in nature. It is noted that three onsite parking bays are required for the proposed gymnasium use and three have been proposed. This is in addition to the 2.4 bays required for the residential use. The Town's officers, however, recommend that only two of the three commercial bays be provided in order to retain landscaping, resulting in a 0.4 car bay shortfall.
Letters lodged in support of the application advise that the use offers a good community service, with many of the students being local children, and does not cause any noise or parking problems in the area with comments that the operator (the applicant) ensures that noise is not excessive and that the right‑of‑ways and footpath are kept clear from student parking. One of the letters of support is from a Youth and Community Support Worker at the City of Swan who sees the facility as supporting youth in the community, particularly disadvantaged youth, by increasing confidence and social skills.
Planning framework
As mentioned above, the site is zoned "Residential R30" under TPS 1. It is zoned "Urban" under the Metropolitan Region Scheme.
Approval to the non‑residential use of part of the site is required under cl 53(1) of TPS 1. The Town has classified the use as "Recreational Facility" which, under TPS 1, "means any land or building or part of a building used for: … (e) gymnasia … in respect of which a charge is made for the use thereof".
A recreational facility is an "AA" use in the Residential zone meaning that "the use is not permitted unless the Town has exercised its discretion by granting planning approval".
Under TPS 1, the site is located within the "Anzac Locality" and the "Mt Hawthorn Precinct". A consultant Town Planner engaged by the Town, Mr Simon Bain, contends that several policies apply to the site. These are:
•Policy 3.1.1 – "Mt Hawthorn Precinct";
•Policy 3.2.1 – "Local Character";
•Policy 3.5 – "Non‑Residential/Residential Development Interface"; and
•Policy 3.3.4 – "Residential Design Guidelines"
The Town initially advised the applicant that the use was a "Home Occupation", which is a permitted ("P") use in TPS 1. However, upon lodgement of an application for planning consent the Town determined that the most appropriate use was "Recreational Facility". The Tribunal agrees that this is an appropriate classification as the proposed use occupies the majority of the ground floor of the building (some 87 square metres) and incorporates additional car parking onsite beyond that required for the upper level residential use.
The applicant's argument
The boxing academy run by the applicant from the gym is the financial livelihood of the applicant who resides in the residence upstairs. Mr Reece states that the use is carried out with the utmost professionalism. Various letters from residents in the locality, including those in Britannia Road, support this contention and have written of the efforts Mr Reece makes to operate the business with minimal disruption to the residential area. Mr Reece states:
"I believe the gym is a great use to the local community as many of its users are local people as well as Aranmore Catholic College who come to the gym because of its close proximity."
The applicant also states that the use will not be permanent or long‑term but is a "stepping stone" in the development of the business. Once the business grows to a sufficient size, the applicant intends to lease a commercial premises to run the business from. He claims that it would have been financially impossible to have started the business and maintain it whilst paying rental on his home and a commercial business. It has already grown significantly in its first year of operation. A timeframe of one to two years is given for the business to be of sufficient viability that the use of the premises can then cease and the gym relocated to commercial premises.
Mr Reece offered to the Town to make any reasonable structural changes to the property to allow the gym to operate.
There were no letters of objection to the proposed use but five were lodged in support of it, as was a petition with 55 signatures. A number of petitioners are students of the gym and residents of Britannia Road although not from either of the immediately adjoining residences.
The owner of the property who lives in the second residence at the rear of the subject site is fully supportive of the gym. The rear neighbour claims to have spoken to numerous neighbours to ascertain if there are any concerns with noise or parking and infers that there are not, stating:
"I have recently again approached residence [sic] … regarding these matters and many of the surrounding neighbours feel the same as I do and they do not have a problem with the gym or the hours or the manner of operation."
A letter of support from the owner's daughter, who is a student of the nearby Aranmore College and also attends classes at the gym, refers to the applicant ensuring prior to classes that no cars are parked on the footpath or blocking driveways and that neighbours appreciate his efforts in this regard. A letter from the resident opposite the subject site refers to Mr Reece co‑operating with neighbours, keeping noise levels to a minimum and managing the parking of his students. Clients of the gym are described by this neighbour as being "mostly young, and engaged in a productive healthy physical activity. They are also courteous, quiet and non‑intrusive". The letter concludes by asking for the continued use of the gym to be supported as it provides an excellent community service with the applicant providing an example of "what neighbourliness is all about".
There is also a letter of support from a Youth and Community Support Worker on City of Swan letterhead which has a secondary banner of Youth Outreach Service for Swan (YOSS). This letter provides a reference for the applicant with the writer also a student of the gym. The use is stated as being clean and safe with the applicant providing a supportive and professional environment. The applicant has been chosen to participate in a YOSS program "due to his professionalism and commitment to the sport and as an excellent mentor to … young men".
The Tribunal notes that the Town's Planning Department supported the application for planning consent subject to standard and appropriate conditions. In a report to an ordinary meeting of the Town on 12 July 2005, the planning officer's report states:
"The land use at the subject site is not considered to cause interruption to the amenity of the residential area and is considered to be a low scale, low intensity, interactive use that services the day to day needs of the local resident population, including students from Aranmore Catholic College, and can generate pedestrian traffic and surveillance of the street."
The officer's report goes on to state that the Town's officers are prepared to support the required variations in the application of the Non‑Residential/Residential Development Interface Policy of the Town. This is in terms of a shortfall of 0.4 car bay and parking in the front setback, on the basis that the car parking is temporary. The officer's support is conditional on the use not operating for more than 12 months (thereafter if the use is desired to be continued a new application would be required), removal of one of the proposed five car bays and its replacement with soft landscaping, and the use being limited to its existing floor space of 87 square metres. Other standard conditions were also recommended.
The respondent's argument
Notwithstanding the officer's recommendations, the Town resolved to refuse the application on the basis of the following reasons:
1)Inappropriate use in a residential area;
2)Building not fit for purpose; and
3)Creating precedent.
In support of these grounds, the Town engaged the services of Mr Simon Bain, Planning Consultant. Mr Bain provided a witness statement to the Tribunal which included his qualifications and experience.
Mr Bain notes that the surrounding area is residential and that the objectives of TPS 1 include having regard to any relevant planning policy, any submission accompanying the application, the orderly and proper planning of the locality and the conservation of the amenities of the locality.
Mr Bain states that the property is included within the Mt Hawthorn Precinct under TPS 1 and as such is subject to policy 3.1.1 which is the relevant precinct policy – a copy of which is attached to the witness statement. Mr Bain refers to a relevant requirement of policy 3.1.1 "[a]ll residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development".
Mr Bain also attaches a second policy considered to be relevant being policy 3.2.1 – "Local Character" (policy 3.2.1). In summary, and contended to be of relevance to this review, the policy requires development to be generally in accordance with the predominant characteristic development in the locality in terms of street setback and frontage, and rhythm and scale, identifying and respecting streetscapes and encouraging new development (including additions and alterations to existing development) to be "contemporary, sympathetically and innovatively designed".
A third policy Mr Bain attaches and considers relevant is policy 3.5 – "Non‑Residential/Residential Development Interface" (policy 3.5) which "aims to protect and enhance the amenity and general environmental standards of existing development within and adjoining both residential and non‑residential areas."
There is also reference in Mr Bain's Statement to policy 3.3.4 –"Residential Design Guidelines" (policy 3.3.4) with the subject site located in the "Anzac Locality" of these Guidelines. This locality is described as being a pattern of north‑south short street blocks with rear laneways and lot areas ranging between 425 and 460 square metres, with frontages just over 12 metres. Housing is described as being mainly 1920's and 1930's with pockets of 1960's housing. Within this locality, single houses are to remain the predominant dwelling type with infill favoured on larger lots. Retention of houses with character is encouraged, as are new developments provided that the design responds to the established character (in terms of roof pitch, building materials etc). Front setback areas are to be landscaped and preferably devoid of parking spaces. Where available, onsite parking is to be accessed from a right‑of‑way.
Mr Bain notes that the proposed use is an "AA" use in the Residential R30 zone which means that it is a use not permitted unless the Town has exercised its discretion by granting planning approval. Under cl 38(5) of TPS 1, the Town must have regard to a range of matters in exercising its discretion and determining the application. Mr Bain does not believe the proposal satisfies these requirements.
Mr Bain draws this conclusion essentially on the following grounds:
1)The proposal development does not comply with a relevant planning policy under TPS 1 being policy 3.5. In this regard, the Town received a complaint concerning the gym in 2004 where issues of noise and car parking were raised. Car parking and noise have the potential to impact on the amenity of an area and "it is apparent that the adjoining neighbours consider these impact on their amenity".
2)The proposal would comply with orderly and proper planning if it were residential and complied with TPS 1 and relevant policies. The proposal does not comply in this regard.
3)The area is residential in nature and zoning therefore there is an expectation that the site would be used for residential purposes. Noise and parking associated with the proposal has the potential to impact on residential amenity and the adjoining neighbour has lodged a submission confirming the use does impact on amenity.
4)The proposal does not comply with policy 3.5 in terms of proposing to remove landscaping from the front setback (the policy requires its retention), vehicle access being provided within the front setback (the policy discourages this instead preferring access from a right‑of‑way), and parking is proposed within the front setback (the policy opposes this).
5)The proposed development is in a residential area and an acoustic report is required demonstrating compliance with the Environmental Protection (Noise) Regulations 1997 (WA).
6)Given the above, it can be concluded that "the proposed development will be inconsistent with the pattern of development and the policy framework that guides development in the Locality". Furthermore, "the proposed development will have an adverse impact on the amenity of the area due to car parking and noise and as such should not be approved".
It is noted that there is nothing in Mr Bain's witness statement, or in documents lodged with the Tribunal by the Town, which addresses two of the three grounds given for refusal, namely that the building is not fit for the purpose intended or with regard to creating an undesirable precedent.
From a review of the neighbour's objection, the concern raised with the Town is that, in March 2004, the establishment of the gym was causing a number of problems in the street mainly due to noise and parking. On a number of occasions, users of the gym parked on the neighbour's verge damaging the reticulation. Furthermore, it was claimed that the gym operated from approximately 6.30 am until 8.30 pm and "in the last few months has become quite noisy". The objector requested that the Town "look into this problem". This complaint gave rise to the application under review.
The issues for consideration
Accordingly, the following issues arise for consideration:
1)Whether the proposed use should be approved under the discretion available in TPS 1.
2)Whether the proposed use complies with the provisions of the Town's policies and TPS 1.
3)Whether the proposed development constitutes orderly and proper planning.
4)Whether the proposed development would have an adverse impact on amenity particularly with regard to noise and parking and whether it could meet the requirements of the EPA's noise regulations.
5)Whether the proposed development would be consistent with the pattern of development and the policy framework that guides development in the Locality.
6)Whether the building is fit for the use proposed.
7)Whether the development will create an undesirable precedent.
The Tribunal will now consider each of these issues in turn.
Whether discretion should be used to approve the development
The Tribunal accepts that TPS 1 requires the exercise of discretion in approving this application. However, the fact that the use is not prohibited in the zone means that it is open to the Town to use its discretion to approve the use which is contemplated as supportable within the residential zone.
Clause 38(5) of TPS 1 requires that, in exercising its discretion, the Town must consider a range of factors including compliance with TPS 1 and relevant policies, submissions accompanying the application, the orderly and proper planning of the locality, the conservation of the amenity of the locality and the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
The proposal complies with TPS 1 as the use can be approved at the Town's discretion subject to relevant considerations. The only non‑compliance evident to the Tribunal with Town policies are considered to be minor and relate to the fact that the proposal is for a change of use, not for a new building, so issues such as location of access and parking are factors of existing circumstance. The proposed development is a change of use with minor alterations, not a new structure. Therefore, policy provisions relating to the physical form of development are not applicable nor can they be supported given the circumstances.
Compliance with scheme provisions and policies
It has already been determined that the proposal complies with TPS 1 as a use that can be approved with the exercise of discretion. There are no development standards in TPS 1 of relevance.
In terms of policies, the Tribunal does not agree with Mr Bain that policy 3.3.4 is relevant. This policy relates to residential development, and specifically new residential development, only. The proposed use is not residential development. Similarly the applicability of policy 3.2.1 is questionable. This policy refers to "new development" being generally in accordance with predominant, characteristic development in the locality in terms of street setback and frontage and rhythm and scale, identifying and respecting streetscapes and encouraging new development (including additions and alterations to existing development) to be "contemporary, sympathetically and innovatively designed". Whilst a change of use does constitute "development" under the Act, as no substantive external building alterations are proposed or required, and the use will simply occupy an existing building, issues to do with streetscape impact, rhythm and scale and contemporary design are not relevant.
Similarly, Mr Bain's reference to the provisions of policy 3.1.1 (the relevant Precinct Policy) requiring "all residential development to comply with the Policies relating to Residential Design Guidelines and Residential Development" is not a relevant consideration as the proposal is not for residential development. The majority of this policy relate to development in local centres, commercial areas or on reserves (not applicable), or new residential development (not applicable). The policy also discourages commercial traffic in residential streets (also not applicable) and promotes safe movement for pedestrians and cyclists. This is a relevant consideration but is not considered to be of concern for this change of use proposed. The policy does require that "non‑residential buildings are to display a character and scale which is compatible with adjacent residential development" and comply with policy 3.5. However, as the proposed development is not a non‑residential building, but rather a non‑residential use of part of a residential building, this requirement is also not applicable. The retention of significant landscaping is considered to be the only relevant aspect of policy 3.1.1 and this can be achieved through conditions as sought by the Town.
Similarly, policy 3.3.4 referred to by Mr Bain is not relevant as the policy contains no requirements relevant to applications for a change of use in the locality. Again, the focus of this policy is on new development involving physical development and/or subdivision or the desired future character of residential development.
Policy 3.5 is considered to be the only relevant TPS 1 policy. Whilst the provisions relating to new buildings are not relevant, the Tribunal notes that the policy does not encourage the use of properties zoned residential being used for non‑residential uses as this detracts from the viability of commercial centres. There is also concern to ensure that the use of residential properties for non‑residential uses would result in "unreasonable interruption of the residential amenity and continuity of residential uses". The policy also requires that "for any non‑residential development proposed in a residential zone, the applicant should demonstrate that there is no suitable site within the non‑residential … zones within close proximity for the proposed non‑residential use".
The site is located close to the Oxford Street commercial area and the applicant has not demonstrated that a suitable commercial site does not exist for the proposed use. Neither has the Town requested this information. However, the applicant has indicated that it would not be financially viable to rent commercial premises for the scale of the use currently operated and the Town has not disputed this. Given that the applicant is able to use part of a uniquely designed residence for segregated business and residential purposes with low overheads, the financial benefits are understandable. It is also noted that the applicant intends to relocate to commercial premises when the business is sufficiently feasible to do this. Town officers have accepted this in recommending a restriction on the length of the approval.
It is noted that policy 3.5 encourages existing dwelling stock to be retained in preference to purpose built non‑residential facilities although this only refers to "buffer areas". The site could not be considered to be in a buffer area. Residential and non‑residential areas should be separated and the documentation provided suggests that this largely occurs. Issues such as compliance with setbacks must be viewed in the context that the proposal under review involves a change of use of an existing building not a new building. Policy 3.5 requires calculation of the parking requirement for each use in a mixed use development and the Town has done this. The applicant proposes to comply with the required parking, however, the Town have indicated their preference is for the development to be one car bay short and instead retain and enhance the landscaping. The Tribunal agrees this would contribute to minimising any adverse impact on neighbours.
Policy 3.5 requires crossovers to be limited to one, and that there to be no parking in the setback area. However, in regard to the site, it is acknowledged that two crossovers already exist with parking provided in the front setback area. It is not appropriate to assess this application as non‑conforming on the basis of the existing structure but only on any changes required as a result of a change of use. None are proposed which are considered to depart from the intent of the policy.
Policy 3.5 does emphasise the importance of preserving residential amenity. This is considered by the Tribunal to be the only substantive issue in this application and is dealt with as follows.
Orderly and proper planning
The Town raises a concern with orderly and proper planning but predominantly in terms of the potential for the proposal to have an adverse impact on residential amenity.
The Tribunal has formed the view that orderly and proper planning is met given the proposed development is contemplated by TPS 1 (enabling the Town to exercise discretion in issuing approval based on the merits of the application) and that exercising discretion in favour of the applicant is appropriate in this instance. The proposed development is for a change of use for a facility that is well run, well patronised and supported by many members of the local community; is a discretionary use (and therefore contemplated) within the zone; and is located on a site in a building which enables any impact on the amenity of the area to be minimised and acceptable in the context of an R30 zoning.
This conclusion is on the basis of the use being of a temporary nature, restricted in terms of size and operating hours and subject to a re‑approval if continuation is sought. That re‑approval can reassess whether or not orderly and proper planning principles continue to be achieved.
Impact on residential amenity
It is considered that the impact on residential amenity is the only issue of significance in determining this application. The application arose from a neighbour's complaint in March 2004 that the use the subject of the application was creating issues for the street in terms of parking and noise. The Tribunal acknowledges that the site is within a residential street of predominantly single residential houses and that any non‑residential use that has an adverse impact on residential amenity should not be supported.
The Tribunal acknowledges also, however, that the original complainant did not object to the proposed use when it was advertised some 12 months after the original complaint, and that other residents of the same street and the locality emphasise that the applicant is aware of the potential for adverse impacts and has taken steps to address these issues. In particular, noise levels from the premises now do not appear to be an issue and the applicant effectively polices parking of students' cars. This was confirmed by residents directly opposite and at the rear of the site.
The singular neighbour's complaint from 2004 contrasts with the only letters lodged during advertising which support the application, predominantly on the basis of the use offering a facility serving local needs, including those of students whose only means of transport is to walk to the premises. Canvassing by at least one supporter has failed to locate any current concerns with the operation of the facility from neighbours. Furthermore, issuing of planning consent which requires provision of onsite parking, enhanced landscaping, restrictions on hours of operation, on numbers of students and on the length of time in which the gym can operate, will all reduce any potential impact. Furthermore, the applicant is obliged to comply with the noise regulations, irrespective on any approval issued by the Town or Tribunal.
On balance, the Tribunal is of the view that there is no current evidence that the use of the garage area of the residence on the site is causing any significant adverse impact on the residential amenity and in fact is a use that can co‑exist within a residential context subject to monitoring and controls. Any evidence from neighbours to the contrary could be considered by the Town in determining whether to issue a new approval after 12 months of operation, if the use continues given the applicant's contention that it is to be temporary in nature.
Consistency with the pattern of development and the policy framework
The proposed use will have no material impact on the pattern of development as no substantive external alterations to the building are proposed, the onsite parking exists but will need to be formalised, and the landscaping will need to be enhanced. The policy framework is largely not relevant to a change of use of the nature proposed other that policy 3.5 which has already been discussed. Therefore, there is nothing arising from this application in terms of this factor which warrants refusal of the application.
Building fit for use proposed
The proposed use occupies the majority of the ground floor of an existing two‑storey residence with the remaining rooms on this floor used for non‑habitable purposes. The area occupied by the gym was built as a double garage and can be accessed separately from the residential uses on the first floor. The applicant has offered to undertake any internal structural alterations required by the Town and proposes only minor external alterations to existing walls. The nearest residence is a second house on the rear occupied by the owner of the site who supports the proposed use. The site is separated from other residential properties to the rear and western boundary by rights‑of‑way. The Town's policy 3.5 encourages non‑residential uses, albeit in buffer sites, to be in residential buildings rather than purpose built non‑residential buildings. The existing building and site is comparatively well suited for the use proposed and no evidence was put forward by the Town to the contrary.
Precedent
Although one of the grounds put forward by the Town was a concern that approval to the application would create an undesirable precedent, no evidence was provided to substantiate this concern. The Tribunal does not believe approval to this application will result in a plethora of applications for "Recreational Facilities" in the locality or in the Residential R30 zone generally, albeit they can be approved at the discretion of the Town. The Tribunal therefore did not form the view that approval to the application would create an undesirable precedent.
Findings and conclusion
For the reasons summarised below, the Tribunal has determined that the application warrants approval. These reasons are:
(i)The use is permissible by the exercise of a discretion although in a residential zone.
(ii)Subject to compliance with hours of operation and student numbers, the use is considered to be of a sufficiently small scale to not have an adverse impact on the amenity of the area and provides a service appropriate to a residential context.
(iii)The proposal does not require any significant external alterations to the building and can comply with the car parking provisions required by the Town, albeit the Town's preference is that one bay not be provided, but instead replaced with additional landscaping, a proposition the Tribunal supports.
(iv)There is nothing in the Town's policies or TPS 1 which would warrant refusal.
(v)The use provides a community service which is supported by a number of local residents including neighbours opposite and at the rear. No evidence was provided to the Tribunal suggesting current opposition to or concern with the use by local residents or neighbours notwithstanding the original complaint in 2004. It is noted that the use has now been operating for approximately two years.
(vi)The existing residence and site layout is of a design which facilitates mixed use of the property with minimal alterations or external impact and no evidence was provided by the Town to justify their concern that the building was inappropriate for the use.
(vii)The development would not create an undesirable precedent as demand for such commercial recreational uses in a residential street is considered to be minimal and no evidence was provided by the Town to support this concern.
For these reasons, the application for review is supported.
Orders
The Tribunal makes the following orders:
1)The applications for review allowed.
2)The decision to issue the notice under review is set aside and a decision is substituted approving the use upon the following conditions:
(a)Prior to the issue of a building licence or within 28 days of issue of planning approval, whichever occurs first, revised plans shall be submitted and approved demonstrating the following:
(i)one car bay in the front setback area being removed and 1.5 metres wide vegetation/"soft" landscaping areas being provided between the car parking area and the eastern and western side boundaries; and
(ii)all car parking bays being dimensioned on the revised plans working drawings and complying with the minimum specifications and dimensions specified in the Town's Policy relating to Parking and Access and Australian Standards AS2890.1 - "Off Street Parking".
(b)The revised plans shall not result in any greater variation to the requirements of the Residential Design Codes or the Town's Policies;
(c)All external fixtures, such as television antennas (of a non‑standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
(d)Any new street/front wall, fence and gate between the Britannia Road boundary and the main building, including along the side boundaries within this front setback area, shall comply with the following:
(i)the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(ii)decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2 metres above the adjacent footpath level;
(iii)the maximum width, depth and diameter of posts and piers being 350 millimetres;
(iv)the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and
(v)the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3 metres by 3 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;
(e)All signage shall be subject to a separate planning approval and sign licence application being submitted and approved prior to the erection of the signage;
(f)The floor areas shall be limited to 87 square metres of gross floor area for the recreational facility (gymnasium) component. An increase in floor space or change of use for the subject land shall require prior Planning Approval to be applied to and obtained from the Town;
(g)This approval for a recreational facility (gymnasium) is for a temporary period of twelve (12) months only and should the applicant wish to continue the use after that period, it shall be necessary to reapply to and obtain approval from the Town prior to continuation of the use. The twelve (12) months temporary period shall start from the date of issue of this planning approval and the land use subject to this planning approval shall cease operation immediately after this twelve (12) months temporary period, unless further Planning Approval has been obtained from the Town prior to, or on this date. Any future application shall comply with the Town's Non‑Residential/Residential Development Interface Policy especially with regard to vehicle access and car parking;
(h)The number of clients attending the recreational facility (gymnasium) shall be limited to a maximum of 14, with a maximum of one (1) instructor, at any one time, as stated in the applicant's submission;
(i)The hours of operation shall be limited to Monday to Friday (8.30 am to 5 pm), inclusive and Saturday (12 pm to 5 pm), and closed on Sundays;
(j)The applicant/owner may not use sound amplification at all and shall ensure compliance regarding normal activities with the Environmental Protection Act 1986 (as amended) and Environmental Protection (Noise) Regulations 1997 (as amended), at all times. Should the activities associated with the use lead to the creation of elevated or unreasonable sound levels, an acoustic report prepared by a qualified sound engineer, shall be submitted to and approved by the Town, which identifies suitable sound attenuation measures that, when implemented, will prevent the emission of unreasonable noise from the premises. These measures are to be implemented before the activity, that creates the elevated or unreasonable sound levels, may commence. The engagement of and the implementation of the recommendations of this acoustic consultant report are to be at the applicant's/owner(s)' expense; and
(k)That conditions are incorporated to address the issues involving the Health Act 1911 (WA) and Building Codes of Australia.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J SMITHSON, SESSIONAL MEMBER
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