Robinson and ANOR and City of Gosnells
[2007] WASAT 313
•11 DECEMBER 2007
ROBINSON & ANOR and CITY OF GOSNELLS [2007] WASAT 313
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 313 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:307/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 10/12/07 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | LAURENCE ROBINSON NOELENE ROBINSON CITY OF GOSNELLS |
Catchwords: | Town planning Application for planning approval Commercial vehicle parking Rural character Amenity Precedent Battleaxe lot Sealed driveway and hardstand Outbuilding Original proposal Modified proposal Public consultation |
Legislation: | City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 2.3, cl 4.2, cl 4.3, cl 5.11, cl 9.2, cl 11.2, cl 11.3, Table No 2C Environmental Protection Act 1986 (WA) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 29(3)(c) |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Cipriano v City of Perth (Unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65 |
Orders | 1. The application for review is upheld, subject to the proposed development being substantially commenced within a period of two years from the date of this determination, and subject to the following conditions:,(i) Approval is granted for the parking of two prime movers and two trailers only, details of which are to be submitted to the City of Gosnells within 30 days from the date of this determination.,(ii) The parking activity must be carried out in accordance with the conditions of approval herein and the City of Gosnells must be notified of any proposed change to the circumstances of the parking activity. If the City of Gosnells considers a revised planning application is necessary for an amended parking activity, approval for such must firstly be obtained before a change is commenced.,(iii) A scaled plan reflecting the decision of the Tribunal is to be submitted to the City of Gosnells within 30 days from the date of this determination to the satisfaction of the City of Gosnells.,(iv) An 18 metre by 15 metre outbuilding is to be constructed to house the two prime movers and two trailers and located to the satisfaction of the City of Gosnells behind the existing residence.,(v) The Outbuilding is to be constructed of green colorbond (external finish) to the satisfaction of the City of Gosnells.,(vi) The vehicles must, at all times, be parked in the approved location within the nominated outbuilding to the satisfaction of the City of Gosnells.,(vii) The commercial vehicle(s) shall not be driven to or from the site before 6 am or after 7 pm Monday to Saturday. No vehicle movements are to occur on Sundays or Public Holidays, or outside the nominated times, without the prior approval (verbal or written) of the Manager City Planning, City of Gosnells.,(viii) The approved commercial vehicles are to access and egress the site in a forward motion.,(ix) The driveway is to be sealed within 30 days of the completed construction of the outbuilding to the satisfaction of the City of Gosnells, and thereafter maintained to the satisfaction of the City of Gosnells.,(x) A hardstand area (approximately 27 metres by 20 metres) is to be located to the satisfaction of the City of Gosnells and constructed within 30 days of the completed construction of the outbuilding to the satisfaction of the City of Gosnells, and thereafter maintained to their satisfaction.,(xi) A landscape plan for the screening of the outbuilding, hardstand area and driveway where required, and which specifies the species to be planted and time of completion, is to be submitted to the City of Gosnells within 60 days from the date of this determination for their approval.,(xii) This determination does not include an approval for the loading or unloading of the commercial vehicle(s) or the storage of goods in transit.,(xiii) Only routine maintenance of a minor nature, such as servicing or wheel changing, is to be carried out on the subject property. No panel beating, spray painting or the removal of major body or engine parts is permitted.,(xiv) Maintenance is to be restricted between 8 am to 7 pm Monday to Saturday. Any maintenance that involves equipment or a process that generates, in the opinion of the City of Gosnells, unreasonable noise, odour or other nuisance or has a detrimental environmental impact is not considered routine maintenance and therefore is not permitted.,(xv) Washing of the commercial vehicle(s) on the subject land is to be limited to the use of water and mild detergent, and is not to involve the use of solvents, degreasing substances, steam cleaning or any other process that may cause pollution or the degradation of the environment. All waste water shall be contained on site and not discharged into the stormwater drainage system.,(xvi) This approval is personal to the applicant and shall not be transferred or assigned to any other person or property.,(xvii) The operations are to comply with the requirements of the Environmental Protection Act 1986 (WA) and the relevant regulations in respect of noise emissions.,(xviii) This approval is not an approval or consent to commence or carry out development under any other written law, Act, statute or agreement. It is the responsibility of the applicants to ensure that all relevant approvals are obtained prior to the commencement of any development covered by this approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ROBINSON & ANOR and CITY OF GOSNELLS [2007] WASAT 313 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 11 DECEMBER 2007 FILE NO/S : DR 307 of 2007 BETWEEN : LAURENCE ROBINSON
- NOELENE ROBINSON
Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning - Application for planning approval - Commercial vehicle parking - Rural character - Amenity - Precedent - Battleaxe lot - Sealed driveway and hardstand - Outbuilding - Original proposal - Modified proposal - Public consultation
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 2.3, cl 4.2, cl 4.3, cl 5.11, cl 9.2, cl 11.2, cl 11.3, Table No 2C
Environmental Protection Act 1986 (WA)
(Page 2)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)
Result:
The application for review is upheld subject to conditions
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Williams Handcock Lawyers
Respondent : City of Gosnells
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Cipriano v City of Perth (Unreported, TPAT, Appeal No 20 of 1979, 21 January 1980)
Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the City of Gosnells to refuse a commercial vehicle parking use at No 40 Staniland Street, Orange Grove.
2 The Tribunal examined the respective arguments of the parties, the development proposal, the relevant legislative and policy provisions and matters of rural character, amenity and precedent.
3 The Tribunal determined, subject to appropriate conditions, that the development could proceed as it would not impact significantly on the existing or future rural character or amenity.
4 The application for review was upheld subject to conditions.
Introduction
5 The application for review, dated 9 September 2007, was lodged by Williams Handcock Lawyers on behalf of Laurence and Noelene Robinson (applicants) against a decision of the City of Gosnells (City or respondent) on 27 July 2007 to refuse an application for planning approval for a home occupation/commercial vehicle parking use at No 40 (Lot 106) Staniland Street, Orange Grove.
6 The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
7 The reasons for refusal were:
"1. Approval of the proposal would have a detrimental impact on the amenity of nearby residents by way of visual impact, loss of existing vegetation and noise.
2. Works to be undertaken on the subject property to provide areas for vehicle access, manoeuvring and parking and the screening of these areas (including extensive hardstand areas being laid, a sealed driveway and large outbuilding being constructed and solid metal screen fencing being erected) would have a detrimental impact on the amenity of the locality by way of the loss of existing vegetation and the construction of structures
- that are not in keeping with the predominantly rural character of the area.
- 3. Approval of the proposal without the works proposed by the applicant (as summarised in refusal reason number 2) would likely have a detrimental impact on the amenity of nearby residents by way of visual impact, noise and dust."
Subject land
8 The subject land can be described as No 40 (Lot 106 on Diagram 93935) Staniland Street, Orange Grove (Lot 106 or subject land) and is the whole of the land comprised in Certificate of Title Volume 2112, Folio 661. It has an area of 1.0123 hectares.
9 The subject land is a "battleaxe" lot with the head of the battleaxe being 82.3 metres wide and 113.35 metres long. The access leg to Staniland Street is 132.6 metres long and 6.0 metres wide.
10 The property is positioned directly behind No 34 (Lot 105) Staniland Street, Orange Grove with both lots being subject to a Memorial G55072 which advises that they are affected by a 2 kilometre buffer for the Boral quarry site where there is the potential for nuisance caused by dust, noise and vibration.
11 The subject land is positioned essentially to the north-east of Staniland Street and there is a single storey residence together with several small outbuildings. There is a grassed area at the rear of the home, together with some lemon trees and a substantial stand of natural vegetation towards the eastern and southern boundaries.
Legislative framework
12 The subject land is zoned "Rural" in the Metropolitan Region Scheme (MRS) and "General Rural" in the City of Gosnells Town Planning Scheme No 6 (Scheme or TPS 6).
13 Of relevance are the following policy statements:
a) Policy No 6.1.1.1: Advertising/Referral of Development Applications (Advertising Policy);
b) Policy No 6.2.3: Outbuildings - Rural and Residential Areas (Outbuildings Policy); and
(Page 5)
- c) Policy No 6.2.4.1: Commercial Vehicle Parking (Parking Policy).
Respondent's position
14 The position of the respondent is outlined in a submission to the Tribunal, dated 23 October 2007. It argues:
a) The existence of a battleaxe driveway significantly changes the spatial arrangements of uses on a given site in relation to the surrounding/abutting lots. As such a battleaxe driveway configuration can significantly exacerbate adverse amenity impacts.
b) A battleaxe driveway situation has the potential to introduce adverse amenity impacts internally within a super-lot as opposed to more peripheral impacts resulting from a standard lot layout.
c) The commercial vehicles are visible or partially visible for most of the length of the driveway, disturbing the visual amenity of both neighbouring properties.
d) The commercial vehicles disturb the noise amenity of the neighbouring properties and measures to limit noise (such as idling) could not be adequately monitored and would be practically unenforceable.
e) Although sealing of the access leg driveway may aid in preventing the impact of dust on neighbouring properties, a sealed driveway is urban in nature and, in the combined context of all of the works required, would contribute to the overall negative impact on rural amenity.
f) Although the applicants have proposed that the area required for commercial parking be reduced, the combined impact of the works will produce unacceptable impacts on the amenity and character of the area.
g) All landowners immediately surrounding the subject property, and several within the local area, have raised objections to the development.
h) The hardstand required for manoeuvring, plus the construction for access, will create a hard surface that is
- more industrial than rural. However, without these hard surface areas the vehicles could cause environmental damage through erosion and negative amenity impacts from dust.
- i) The area of the proposed outbuildings, when combined with existing outbuildings, is in excess of permitted development under cl 9.2 of TPS 6.
j) Many of the surrounding properties, including the adjoining Lot 105, keep horses as a component of their lifestyle options. This adds to the rural character of the area.
k) Previously approved commercial parking in an area is not considered to set a precedent, as the applications need to be assessed on their merits. However, no approvals appear to have been granted for the examples of commercial parking in the area as quoted by the applicants.
l) Although it is not possible to investigate the circumstances of each outbuilding cited by the applicants, it appears none are associated with commercial vehicle parking.
m) The respondent accepts that the application complies with the requirements of TPS 6, and the Parking Policy, except for provisions relating to amenity and compatibility of surrounding land uses.
n) Although there were no breaches of a technical nature, the application was assessed on its merits and determined likely to produce unacceptable disturbance to noise and visual amenity as well as being incompatible with the nature of the area. In forming this opinion the comments from residents in the surrounding area were considered.
15 In the view of the Tribunal, the position of the respondent is that the proposed development, even in a reduced or modified form (less hardstand area, etc), would be incompatible with the rural character of the area and detrimental to the amenity in terms of visual effect and noise.
(Page 7)
16 It is also the position of the respondent that if the development was to proceed that the sealing of the driveway, and hardstand areas, would be required in order to avoid environmental damage through erosion.
17 The respondent appears to have been guided in its views as a result of submissions from neighbouring residents.
Applicants' position
18 The position of the applicants is outlined in the "Grounds for Review" (Appendix A) of the application for review dated 19 September 2007. They argue:
a) The respondent should have exercised its discretion under cl 5.11.3 and cl 11.3 of the Scheme to approve the application for the following reasons:
i) the proposed development would not have a detrimental impact on the amenity of nearby residents by way of visual impact, loss of existing vegetation and noise;
ii) the commercial vehicles would be parked inside a shed coloured green and would not be visible;
iii) the shed and hardstand area would be screened from view by vegetation and if the shed and hardstand were downsized, this would only result in old and unattractive lemon trees being removed with natural vegetation and screening retained;
iv) the hours of operation of the Austria Club on the adjacent Lot 436 is such that no person at the Club could be affected by the vehicle movements and neither the neighbour to the front on Lot 105 (nor any other neighbour) has made any complaint in relation to vehicle movements to date; and
v) the grounds for refusal that an approval without the works proposed by the applicants would likely have a detrimental impact on the amenity of nearby residents by way of visual impact, noise and dust is misconceived as the works themselves will mitigate those impacts, if any.
(Page 8)
- b) The respondent erred in assessing the existing amenity or character of the locality by failing to consider:
i) the existing commercial vehicle parking in the locality both in terms of noise and visual amenity impact;
ii) the use of Staniland Street and surrounding streets by truck driving schools;
iii) the numerous large sheds and sea containers in the locality visible from the street;
iv) the numerous sealed driveways in the locality - some of substantial length along battleaxe legs; and
v) the proximity of the Boral quarry in relation to which (at least) the subject land and Lot 105 have a Memorial registered against their Certificates of Title.
19 The principal planning issues are:
a) Would the proposed development have a detrimental effect on the character of the area and its amenity in terms of visual impact, loss of existing vegetation and noise?
b) Would the proposed development establish an undesirable precedent in the locality?
Assessment of proposal
The proposed development
20 An outline of the proposed development was given in the staff report to the Ordinary Council Meeting of 24 July 2007. The report advised in relation to the operation of the vehicles:
a) Vehicles will be operating between 6 am and 6 pm Monday to Saturday.
b) Only one of the prime movers will be driven on any one day, while the other will be parked.
(Page 9)
- c) Only one vehicle movement out of and into the property will occur each operating day.
21 The report outlined the following works:
a) An outbuilding 18.0 metres in length and 15.0 metres wide would be constructed. It would be in the order of 4.5 metres high.
b) A sealed bitumen driveway and hardstand area for vehicle manoeuvring would be installed.
c) A 1.8 metre high colorbond fence would be erected on the side and rear boundaries of the subject land to screen the parking area.
d) Trees would be planted to screen a hardstand area to the satisfaction of the City.
22 However, in the application for review it was explained:
a) It is the intention of the applicants to operate two prime movers (Kenworth and Western Star) from the subject land. The Kenworth prime mover is currently not on the property.
b) With two prime movers parked on the subject land there will be four vehicle movements per day; two in the morning and two in the evening at approximately the same time.
c) Currently, the Western Star prime mover leaves at approximately 6 am and returns at approximately 6 pm. On Fridays the prime mover does not return in the evening but arrives on Saturday at approximately 6 am.
d) On occasion Mr Robinson will leave at approximately 4 am, although this is rare. Also, on occasion he may return after 6 pm but before 7 pm.
e) The two trailers will be parked in the proposed sheds but will be removed three times a year for a six to eight week period for cartage contracting.
(Page 10)
23 On 23 July 2007, Mr Robinson prepared a public statement which was read out by him at the Council Meeting on the following day. The statement advised:
a) The shed size and hardstand are excessive and can be downsized.
b) There will be little or no natural vegetation removed to accommodate the shed, hardstand or driveway.
c) It would be better to retain existing fencing and include tree screening where needed.
d) The commercial vehicle business previously operated from a residential property for 15 years without one complaint from the residents or the Shire.
24 In the application for review a "modified" proposal includes:
a) A shed, being 10 metres by 12 metres, with an entrance height of 4.3 metres and being located behind the residence.
b) A sealed hardstand of approximately 540 square metres (approximately 20 metres by 27 metres) and located between the proposed shed and the adjoining Lot 436.
c) The proposed 1.8 metre high colorbond fencing in the "original" proposal is no longer being pursued.
25 In the view of the Tribunal, although it is clear that the applicants are now pursuing a "modified" proposal, it was the "original" proposal that was refused by the respondent on 24 July 2007.
Legislative and policy provisions
Town Planning Scheme No 6
26 Under cl 1.6 it states:
"The aims of the Scheme are:
…
(d) To ensure the orderly and proper use and development of land within the District.
(Page 11)
- …
(g) To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment."
27 Clause 2.2, Local Planning Policies, provides for the making of policies whereas cl 2.3.1, Relationship of Local Planning Policies to Scheme, states:
"If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails."
28 The objectives of the various zones are outlined under cl 4.2; in particular, the General Rural zone is:
"To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality."
29 Under cl 4.3, Zoning Table, a "Commercial Vehicle Parking" use has a "D" symbol under the "General Industry" zone. The "D" symbol:
"means that the use is not permitted unless the local government has exercised its discretion by granting planning approval; …"
30 Clause 5.11, Rural Zones, explains that the requirements of Table No 2C shall form part of the requirements of the clause. Table No 2C requires a 15 metre setback from a front boundary and a 3 metre setback from the side and rear boundaries.
31 The parking of commercial vehicles is addressed in cl 5.11.3:
" …
Subject to the provisions of the Scheme, where the Council grants planning approval to park a commercial vehicle, the following provisions shall apply:
(a) the approval shall be personal to the applicant and shall not be transferred or assigned to any other person;
(b) the person(s) to whom approval is given by the Council to park a commercial vehicle shall not after the granting of that approval park a commercial vehicle, at any
- residential premises other than the land in respect of which the Council's approval was granted; and
- (c) If a vehicle has been parked with the approval of the Council and if, in the opinion of the Council, such vehicle is causing a nuisance or annoyance to neighbours or owners or occupiers of land in the neighbourhood, the Council may revoke its approval, where either, or:
(i) the applicant is not complying with conditions of approval;
(ii) the nature of nuisance or annoyance has been verified; and
(iii) the applicant has not rectified the source of nuisance, annoyance or non-compliance within 7 days of written notification;
after which no person shall park a commercial vehicle upon that land without the further approval of Council."
33 When dealing with an application the respondent is to have due regard to the following matters as outlined in cl 11.2:
"…
(b) the requirements of orderly and proper planning …
…
(f) any Local Planning Policy …
…
(i) the compatibility of a use or development with its setting;
…
(Page 13)
- (l) the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(n) the preservation of the amenity of the locality;
(o) the relationship of the proposal to development on adjoining land …
(p) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q) the amount of traffic likely to be generated by the proposal …
(y) any relevant submissions received on the application;
…
(za) any other planning consideration the local government considers relevant."
34 Under cl 11.3; Determination of Applications, the local government may:
"(a) grant its approval with or without conditions; or
(b) refuse to grant its approval."
35 From an examination of the Scheme it is clear that the respondent must use its discretion to approve a "Commercial Vehicle Parking" use in a "General Rural" zone, and can bring to bear on its decision such matters as the preservation of the amenity of the locality. It has chosen to do so in this case.
36 It can also have regard to local planning policy to assist in its determination, and that under cl 5.11.3(c), it has a significant power to be able to revoke an approval if the use is causing a nuisance or annoyance to neighbours.
(Page 14)
- Policy No 6.1.1.1: Advertising/Referral of Development Applications
37 The Advertising Policy highlights the prospect of proposed developments having the potential to impact on the amenity of the surrounding area. These impacts include, but are not limited to:
a) Visual Amenity (mass, scale, height and lighting);
b) Noise; and
c) Odour.
38 In the case of Commercial Vehicle Parking in the General Rural zone, the responsible assessing officer can exercise discretion as to whether advertising is required. If advertising does proceed, then owners within a 100 metre radius (minimum), or the nearest seven lots, are advised of the development proposal.
39 In the matter under review the proposal was advertised for fourteen days during which time 12 submissions were received. Of these there were 11 objections and one non-objection.
Policy No 6.2.3: Outbuildings - Rural and Residential Areas
40 The Outbuilding Policy complements cl 9.2 of TPS 6 in specifying a maximum area for an outbuilding of 120 square metres (with a maximum building height of 4.8 metres) for a site area over 1 hectare and less than 2 hectares. Where there is more than one building the aggregate area is still limited to 120 square metres.
41 However, there is a provision in the Policy to exceed the maximum area where it can be demonstrated that extraordinary conditions prevail in relation to the building, its use or amenity.
42 Again, there is a provision that outbuildings located on properties between the Tonkin Highway and the foothills (such as the subject land) that would be visible from the plains are to have both roof and wall cladding in colorbond.
43 In the matter under review the "modified" proposal includes a building with an area of 120 square metres (10 metres by 12 metres) but there is no information before the Tribunal as to what the total area of the proposed building plus the other outbuildings on the property would be. Also, there is no information on the "overall" height of the proposed building (its "entrance" height is 4.3 metres) and whether it would conform to the 4.8 metre height limit.
(Page 15)
- Policy No 6.2.4.1: Commercial Vehicle Parking
44 The comprehensive Parking Policy includes a range of provisions. Several of these provisions are listed below:
a) The parking of a commercial vehicle on a lot in a "rural" zone requires planning approval unless the vehicle is specifically used as an integral part of the rural activity.
b) There should be a sealed crossover between the roadway and the private driveway unless the roadway is unsealed.
c) Approval may be granted to the parking of a trailer or other non-self-propelled attachment used in association with the operation of a commercial vehicle.
d) An approval is personal to the applicant.
e) Only minor servicing, including minor mechanical repairs can be undertaken between specific time periods Monday to Sunday and any activity that generates unreasonable noise, odour or other nuisance is not permitted.
45 The Parking Policy is complementary to the Scheme and similarly addresses the issue of amenity in terms of noise and odour.
The matter of rural character
46 The respondent argues that the locality is characterised by larger lots (generally 1 hectare to 4 hectares) in an open rural landscape that is dominated by the forested Darling Ranges. Also, that many owners are attracted to the area for "lifestyle reasons" such as the keeping of horses.
47 The applicants argue that the locality has a rural amenity characterised by noise and emissions from the nearby Boral quarry, and the constant truck movements between Tonkin Highway and the quarry along streets in the locality (Maddington Road, Reservoir Road and Gosnells Road East).
48 The Tribunal was assisted with an on-site visit to the subject land by Senior Sessional Member Graham on Friday, 21 September 2007 and by way of photographic evidence of individual lots in Staniland Street and elsewhere in the immediate locality. These photographs were submitted as Attachment 11 to the application for review.
(Page 16)
49 From the photographic evidence it is clear that certain lots, such as No 46 (Lot 436) Staniland Street, the Austria Club of WA Inc (Austria Club) and No 39 (Lot 9000) Staniland Street and No 18 (Lot 94) Staniland Street (Lot 94), have long sealed driveways and there are large sheds on such properties as No 59 (Lot 104) Staniland Street and No 87 (Lot 456) Reservoir Road. This last example is the Jadran Winery, with a large red shed, that is clearly visible from the rear of the subject land.
50 In the applicants' comments on the respondent's response, dated 8 November 2007, the point was made that a shed has recently been approved (31 October 2007) on Lot 94 with dimensions of 20 metres by 9 metres at a height of 4.8 metres. That property is a 1.0225 hectare battleaxe lot and it is claimed that it already has existing storage and a carport.
51 Several photographic examples of commercial vehicles being parked in nearby Grant Street were also submitted by the applicants to support their case.
52 In the view of the Tribunal, although Staniland Street displays an overall rural character it has, and continues to be, progressively eroded by traffic noise from the nearby Tonkin Highway and with the advent of sealed driveways, large sheds, sea containers and the parking of commercial vehicles.
The matter of amenity and public consultation
53 Under TPS 6, "amenity" is defined as:
"[meaning] all those factors which combine to form the character of an area and include the present and likely future amenity."
54 However, in Cipriano v City of Perth (Unreported, TPAT, Appeal No 20 of 1979, 21 January 1980) (Cipriano), "amenity" is defined at page 5 as being:
"The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of an area, its appearance and land uses."
55 This definition relies on the personal views of residents as to the quality of their environment and their individual expectations going forward.
(Page 17)
56 In Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65 (Rajneesh), Mr Malcolm QC (as he was then) expanded on the definition of amenity:
"In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality."
57 This definition accepts the existing amenity as given, good or bad, and the likely consequences of a proposed development on that amenity as seen by individuals within the locality.
58 In this case the public consultation process gave rise to 12 submissions, including submissions from all four landowners surrounding the subject land and from others nearby on both sides of Staniland Street.
59 There was a concern from a number of owners relating to commercial vehicle parking at No 25 (Lot 121) Staniland Street (Lot 121) as well as a number of concerns including:
a) Vehicle movements early in the morning will affect amenity.
b) A battleaxe lot is not suitable for commercial vehicle parking.
c) Vehicle movements along the battleaxe driveway will detrimentally affect nearby properties in terms of visible amenity, noise, vibration, dust and lights.
d) The presence of two prime movers and two trailers is an inappropriate use in the locality and they should not be parked or maintained in rural areas.
e) The proposed colorbond fence is inappropriate in the locality and could not withstand the high winds.
60 It appears that the concerns relating to Lot 121 were addressed by Council on 26 June 2007 by revoking a previous approval for commercial vehicle parking. All other concerns in [59] above essentially relate to the character of the area and amenity.
(Page 18)
61 In the view of the Tribunal, the matters of "amenity" and "rural character" can be considered in the terms of both the Cipriano and Rajneesh decisions.
The matter of precedent
62 The matter of precedent is often raised in planning matters by the respondent as a reason not to support a development that is perceived as undesirable.
63 However, as explained in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988), precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account when assessing a planning argument.
64 The Tribunal would acknowledge, though, that applicants often use "precedent" to justify a planning proposal and, that if an approval is granted based on the merits of the case, that it should be subject to appropriate planning conditions.
Conclusions
65 The application for review was lodged against a decision of the respondent to refuse a planning application for a commercial vehicle parking use at No 40 (Lot 106) Staniland Street, Orange Grove.
66 In examining this matter the Tribunal had regard to the respective positions of the parties, the proposed development itself, the relevant legislative and policy provisions and matters of rural character, amenity and precedent.
67 The position taken by the respondent is based on the "original" proposal that included the construction of an 18 metre by 15 metre shed at some 4.5 metres high. There was an extensive sealed hardstand area of some 2500 square metres and a sealed driveway extending some 140 metres from the start of the access leg at Staniland Street to the hardstand area.
68 The proposal also included the construction of a 1.8 metre high colorbond fence along the rear of the site (82.3 metres) and adjoining along both sides of the property at distances of some 92 metres. There was to be some tree planting to minimise the effects of the hardstand area.
(Page 19)
69 The respondent concluded that the proposed development would be incompatible with the rural character of the area, and detrimental to amenity in terms of visual impact and noise.
70 The respondent was also of the view that if the proposal was to proceed, the sealing of the driveway and the hardstand area would be required in order to avoid environmental damage through erosion and dust.
71 The respondent appears to have been guided in its views as a result of submissions from neighbouring residents.
72 The position of the applicants is that the respondent should have used its discretion to approve the development as it would not have a detrimental impact on amenity and that the respondent had failed to take into account the existing commercial vehicle parking in the locality; the use of Staniland Street and surrounding streets for truck driving school purposes and that there were numerous large sheds and sea containers in the locality that were visible from the street. Also, that there were numerous sealed driveways nearby and the close proximity of the Boral quarry could subject the property to dust, noise and vibration as outlined in the Memorial on Title (No 102849).
73 Of importance is the position of the applicants with respect to the development itself. The "original" proposal has been changed to a "modified" proposal to include a smaller shed measuring 10 metres by 12 metres, a reduced hardstand area of 20 metres by 27 metres (540 square metres) and the proposed colorbond fencing is no longer being pursued.
74 On the matter of TPS 6 it is clear that the respondent can use its discretion to approve a "Commercial Vehicle Parking" use in a "General Rural" zone, and can bring to bear on its decision such matters as the preservation of the amenity of the locality.
75 Under the Scheme, the respondent can also have regard to local planning policy to assist in its determination and that, under cl 5.11.3(c) it has an important power to be able to revoke a previous approval if the use is causing a nuisance or annoyance to neighbours.
76 With regard to the relevant Council policies the proposal was advertised in accordance with the provisions of the Advertising Policy.
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77 When assessed against the provisions of the Outbuilding Policy it is clear that a shed measuring 18 metres by 15 metres would exceed the maximum 120 square metres for a property of this size, but that the "modified" proposal with a shed 10 metres by 12 metres would meet the policy requirements. However, there was no information before the Tribunal as to the area of other existing outbuildings on the property.
78 As for the Parking Policy, the proposal appears to accord with its various provisions and overall the respondent took the view that although there were no breaches of a technical nature that the proposal was likely to be incompatible with the character of the area and likely to produce unacceptable disturbance in terms of noise and visual amenity.
79 On the matter of "rural character" it is the case that properties along Staniland Street generally appear rural but the locality has been, and continues to be, progressively eroded by traffic noise from the nearby Tonkin Highway and the advent of sealed driveways, large sheds, sea containers and the parking of commercial vehicles.
80 On the matter of "amenity" it is clear from the public submissions that the unfortunate experience of a commercial vehicle parking use at Lot 121 had influenced their thinking. A previous Council approval for that use has now been revoked and this action highlights an important power available to the respondent if considered necessary.
81 As pointed out in the "Applicants' Comments on Respondent's Response":
"The respondent has a wide power of revocation under clause 5.11.3(c) of the Scheme … A successful nuisance prosecution or other determination by a court or tribunal is not a precondition of the exercise of such power of revocation."
82 Other matters raised in submissions included the argument that two prime movers and two trailers is an inappropriate use in the locality, both in terms of visual amenity when parked and that vehicle movements along the driveway will detrimentally affect nearby properties in terms of noise, vibration, dust and lights.
83 Regarding the planning options available to the Tribunal the application for review could be refused and the "status quo" would remain in the terms of one only prime mover being parked at the rear of the property. At some time in the future, the applicants could be required to remove the prime mover from the site, but just what is occurring along
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- these lines for other commercial vehicles parked illegally in the locality in terms of their removal is not known to this Tribunal.
84 The other option available to the Tribunal would be to uphold the application for review but subject to conditions that address the amenity impacts in particular.
85 In that respect, the Tribunal would agree that the sealing of the driveway and a reduced size hardstand area should occur in order to overcome any future difficulties with respect to erosion and dust. Such action would appear preferable to leaving the driveway "as is" in order to retain its current "rural look"; and particularly when you have long sealed driveways on other properties nearby.
86 From the visual amenity aspect, the Tribunal would agree that there should be no colorbond fence, and that existing fencing would help to retain a "rural look". Also, that the existing natural vegetation should be retained together with the vegetation planted along the rear of the property. This will help to hide any development at the rear of the existing residence.
87 In terms of visual amenity in relation to the Austria Club, and the adjacent Lot 105 in particular, the prospect of two vehicle movements in the early morning and two vehicle movements in the evening is, to say the least, minimal; particularly in relation to the overall daily traffic movement (including trucks) along Staniland Street (which connects Maddington Road to Reservoir Road).
88 In the case of the Austria Club it is highly likely that there would be nobody on-site in the early morning to view the vehicle movement(s). Again, the residence on Lot 105 is located well away from the driveway and a view of the vehicle movement(s) would be partly obscured by trees.
89 A further aspect to consider is that if the development was to proceed, in the interests of minimising a perceived adverse impact on the rural character, the two prime movers and the two trailers should be hidden from view. This could only be achieved with a shed 18 metres by 15 metres which would provide security and allow minor maintenance under cover.
90 In the view of the Tribunal, it is a far better planning outcome to house the prime movers and trailers than to adhere slavishly to the provisions of the Outbuildings Policy; particularly in the case of a
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- battleaxe lot where a large outbuilding would be located well away from Staniland Street and largely out of view.
91 On the matter of noise the Tribunal has some concern about the occasional early start-up of the prime mover(s) at around 4 am. However, it would be up to the applicants to minimise such occurrences or face the prospect of complaints.
92 The Tribunal does concede that "Commercial Vehicle Parking" in the locality, if not properly managed, could further erode the rural character of the area and that an approval in this instance could give rise to other applications. But each case must be treated on its merits and if the conditions of approval are not met, such as in the case of Lot 121, the respondent has the appropriate powers to act and terminate the use.
93 On balance, the Tribunal accepts the arguments of the applicants and the application for review is upheld subject to conditions.
Orders
94 For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
1. The application for review is upheld, subject to the proposed development being substantially commenced within a period of two years from the date of this determination, and subject to the following conditions:
i) Approval is granted for the parking of two prime movers and two trailers only, details of which are to be submitted to the City of Gosnells within 30 days from the date of this determination.
ii) The parking activity must be carried out in accordance with the conditions of approval herein and the City of Gosnells must be notified of any proposed change to the circumstances of the parking activity. If the City of Gosnells considers a revised planning application is necessary for an amended parking activity, approval for such must firstly be obtained before a change is commenced.
iii) A scaled plan reflecting the decision of the Tribunal is to be submitted to the City of Gosnells
- within 30 days from the date of this determination to the satisfaction of the City of Gosnells.
- iv) An 18 metre by 15 metre outbuilding is to be constructed to house the two prime movers and two trailers and located to the satisfaction of the City of Gosnells behind the existing residence.
v) The Outbuilding is to be constructed of green colorbond (external finish) to the satisfaction of the City of Gosnells.
vi) The vehicles must, at all times, be parked in the approved location within the nominated outbuilding to the satisfaction of the City of Gosnells.
vii) The commercial vehicle(s) shall not be driven to or from the site before 6 am or after 7 pm Monday to Saturday. No vehicle movements are to occur on Sundays or Public Holidays, or outside the nominated times, without the prior approval (verbal or written) of the Manager City Planning, City of Gosnells.
viii) The approved commercial vehicles are to access and egress the site in a forward motion.
ix) The driveway is to be sealed within 30 days of the completed construction of the outbuilding to the satisfaction of the City of Gosnells, and thereafter maintained to the satisfaction of the City of Gosnells.
x) A hardstand area (approximately 27 metres by 20 metres) is to be located to the satisfaction of the City of Gosnells and constructed within 30 days of the completed construction of the outbuilding to the satisfaction of the City of Gosnells, and thereafter maintained to their satisfaction.
xi) A landscape plan for the screening of the outbuilding, hardstand area and driveway where
- required, and which specifies the species to be planted and time of completion, is to be submitted to the City of Gosnells within 60 days from the date of this determination for their approval.
- xii) This determination does not include an approval for the loading or unloading of the commercial vehicle(s) or the storage of goods in transit.
xiii) Only routine maintenance of a minor nature, such as servicing or wheel changing, is to be carried out on the subject property. No panel beating, spray painting or the removal of major body or engine parts is permitted.
xiv) Maintenance is to be restricted between 8 am to 7 pm Monday to Saturday. Any maintenance that involves equipment or a process that generates, in the opinion of the City of Gosnells, unreasonable noise, odour or other nuisance or has a detrimental environmental impact is not considered routine maintenance and therefore is not permitted.
xv) Washing of the commercial vehicle(s) on the subject land is to be limited to the use of water and mild detergent, and is not to involve the use of solvents, degreasing substances, steam cleaning or any other process that may cause pollution or the degradation of the environment. All waste water shall be contained on-site and not discharged into the stormwater drainage system.
xvi) This approval is personal to the applicant and shall not be transferred or assigned to any other person or property.
xvii) The operations are to comply with the requirements of the Environmental Protection Act 1986 (WA) and the relevant regulations in respect of noise emissions.
xviii) This approval is not an approval or consent to commence or carry out development under any other written law, Act, statute or agreement. It is
- the responsibility of the applicants to ensure that all relevant approvals are obtained prior to the commencement of any development covered by this approval.
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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