Salmon and Town Of Cottesloe

[2010] WASAT 193

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   SALMON and TOWN OF COTTESLOE [2010] WASAT 193

MEMBER:   MR J JORDAN (MEMBER)

HEARD:   6 DECEMBER 2010

DELIVERED          :   EDITED REASONS DELIVERED ORALLY ON 8 DECEMBER 2010

FILE NO/S:   DR 248 of 2010

BETWEEN:   JOHN SALMON

Applicant

AND

TOWN OF COTTESLOE
Respondent

Catchwords:

Town planning ­ Development ­ Refusal ­ Change of use ­ House with two residential tenancies ­ Proposal for one residential tenancy and a medical consulting room ­ Consulting room discretionary use ­ Intent of residential zoning ­ Impact on local amenity ­ Traffic ­ Parking

Legislation:

Draft Local Planning Scheme No 3, cl 4.2.1(c), cl 4.2.1(d)
Planning and Development Act 2005 (WA), s 252(1)
Town of Cottesloe Town Planning Scheme No 2, cl 1.4, cl 3.4.1(a), cl 5.1.2(k)

Result:

Application for review is dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr E Drewett (Representative)

Solicitors:

Applicant:     Self-represented

Respondent:     Town of Cottesloe

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. This matter involved an application for review of the refusal by the Town of Cottesloe of a proposed change of use of a house in a residential zone being used as two residential tenancies.  Proposed were alterations and additions to the building to enable use as a residential tenancy and a separate consulting room.

2. The Tribunal found that the proposed use would be inconsistent with the intent of the residential zoning in the Town of Cottesloe's town planning scheme.  The Tribunal was concerned that the size of the lot required that the rear yard of the site be both open space for residents and parking for the consulting room.  The Tribunal also considered that, while the applicant's medical practice served patients from Cottesloe, the consulting room was not an amenity that served the residential locality in which it would be located as required under the town planning scheme.

3. The Tribunal further found that it was undesirable to attract non­local traffic to a specific site located close to a busy intersection.  Finally, the Tribunal formed the view that the use of the internal driveway and the rear parking on the site would have an undesirable impact on the amenity of the abutting residential properties.

4. The Tribunal decided to dismiss the application and affirm the Town of Cottesloe's refusal of the proposed change of use.

5. Following the hearing on 6 December 2010, the Tribunal delivered its decision and these reasons orally on 8 December 2010.  The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

1. These proceedings involve an application brought by Dr John Salmon (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Town of Cottesloe (respondent or Council) to grant planning approval for a proposed change of use at No 68 (Lot 3) Railway Street, Cottesloe (site).

2. Prior to the hearing, the Tribunal viewed the site and nearby streets accompanied by Dr Salmon, Mr Edward Druitt and Mr Andrew Jackson, planning officers of the Council who represented and appeared as witnesses for the respondent, and Mr Jeff Trigg, the Council's manager of engineering services who was also a witness.

Site and locality

1. The site is 632 square metres with frontage to Railway Street at the western end.  The site boundaries meet Railway Street reserve at 20 degrees from the perpendicular.  On the site is a single storey house let as two separate residential tenancies.  At the street frontage is a 1.8 metre high brick screen wall and a 3.8 metre wide vehicle crossover.  The front yard is paved and used as parking.  The Railway Street reserve is 40 metres wide.  The verge in front of the site is about 4 metres wide with a footpath, and the verge on the western side is about 20 metres wide, with grass and scattered trees, and abuts the Perth ­ Fremantle railway reserve.

2. The site is five houses south of the roundabout at the intersection of Railway Street and Eric Street.  Eric Street is an important east­west link; it extends between Stirling Highway to the east, crossing Railway Street and over the railway to a signal­controlled intersection with Curtin Avenue and then west to Marine Parade at the coast.  Curtin Avenue is part of a major traffic route between West Coast Highway to the north and North Fremantle to the south.  There is a primary school in Eric Street near the roundabout.  Railway Street, which is a local distributor, runs south to the town centre of Cottesloe and a level crossing at Jarrad Street, a distance of about 1 kilometre.

3. Development along Railway Street is residential, except for a longstanding liquor store and a consulting room about 200 metres south of the site.  Adjoining the site to the south is a house on the corner of Railway Street and Bonham Street.  That house which fronts Bonham Street and two other recently built houses in Bonham Street have a rear courtyard abutting the southern side boundary of the site.  A further lot fronting Bonham Street has a rear yard abutting the rear boundary of the site.

Planning framework

1. The site and surrounding lots are zoned Residential R20 in Town of Cottesloe Town Planning Scheme No 2 (TPS 2).  Council characterised the use as 'professional office' which, under TPS 2, means a building used for the purposes of his profession by a list of professionals that include a doctor.  The Tribunal notes that the proposed consulting room could also be characterised under TPS 2 as 'consulting rooms', which means a building used by no more than two practitioners, including medical practitioners.  There was no dispute about the characterisation of the use and, in any event, both use classes are an 'AA' use under TPS 2, which means: 'a use that is not permitted unless special approval is granted by the Council'.

2. The general intent of TPS 2 stated at cl 1.4 is:

   The intent of this Scheme is to direct and control the development of the Scheme Area … in such a way as shall promote and safeguard the health, safety and convenience, economic and general welfare of its inhabitants and the amenities of every part of the District.

3. The purpose of the residential zone is at cl 3.4.1 of TPS 2, and this includes, at subparagraph (a):

   The purpose and intent of the Residential Zone is to promote a residential environment in any particular locality compatible with the maximum residential density permissible in that locality and with the desire of the inhabitants for Cottesloe to retain its quiet residential character. …

4. When considering an application for development approval under TPS 2, at cl 5.1.2(k), it is necessary to have regard to:

   … the impact on the general quiet of the locality, including the times of activity, traffic generation, access and parking, and air conditioning, plant rooms and machinery, in relation to neighbouring properties.  In order the [sic] preserve the quiet of residential areas, Council may impose conditions on development approvals restricting the hours of work on a development site;

5. The Council has adopted Policy 007 ­ Development applications for home occupations and professional offices in the residential zone (Policy 007).  The proposed consulting room complies with the development standards set out in respect of hours, parking spaces, number of employees, and vehicle trips per day in Policy 007.  The respondent cited the introduction to Policy 007, which states:

   It is Council's general policy to restrict the operation of Professional Offices, Small Businesses and similar activities to zones in which they are appropriately suited.

   Council may grant special approval (AA use) for the operation of Professional Offices and Home Occupations where it is satisfied that the use will not prejudicially affect the amenity of the neighbourhood.

6. The respondent said its Draft Local Planning Scheme No 3 (Draft LPS 3) should be considered as a seriously­entertained planning proposal because it was with the Minister for Planning for final approval.  The Tribunal agrees Draft LPS 3 is a relevant consideration but cannot, of itself, be determinative of the matter.  Under Draft LPS 3, the Tribunal notes the proposed change of use would best be characterised as 'consulting rooms', which would be an 'A' use.  An 'A' use under Draft LPS 3 is essentially the same as an 'AA' use under TPS 2.

7. Both parties referred in their submissions to the objectives for the residential zone at cl 4.2.1(c) and cl 4.2.1(d) of Draft LPS 3, which state:

   (c)allow for some non residential uses where they are compatible with the amenity of residential localities; and

   (d)encourage the retention of local facilities and services within specified residential areas for the convenience of the local community.

The proposal

1. The application refused by the Council in August 2010 was to change the use of the building on the site from residential to consulting rooms for two doctors (July plans).  Discussions between the parties resulted in the July plans being amended so that the proposal before the Tribunal was for a change of use of the building into part single residence and part consulting rooms for the applicant as set out in the plans dated 28 September 2010 by the Council (September plans).  Physical changes to the building proposed in the September plans would include old additions at the rear being demolished and replaced with a new addition and rear veranda, two rooms being built into the roof space, removal of fibre cement cladding at the front of the building and demolition of a garage at the southern side to create a 3.72 metre wide driveway between the front of the site and the rear yard.

2. The rear yard would be paved with bricks and limestone cement blocks with five parking spaces perpendicular to the rear fence.  The paved front yard would include a disabled parking bay.  If required, the 1.8 metre high fence would be cut back to provide suitable sight lines for vehicles entering and leaving the site.

3. The internal changes and renovations would result in the northern side of the building plus the two upper level rooms being residential.  The applicant said that the rear yard would appear as, and be used as, a courtyard by the residents when not in use for parking.  The southern side of the building would be the applicant's consulting room.  This would include a reception and waiting area for three persons with access halfway along the driveway, toilets and a storeroom.

4. The consulting room would be used by the applicant who specialises in pain management and has patients referred by other doctors and health professionals.  Patients would attend for a one hour initial consultation and half hour subsequent appointments.  Hours of operation would be between 11.30 am and 5 pm on two days of the week and between 11 am and 2 pm on three days.  Which days involve the longer hours would vary throughout the month.  It was said there would be about 45 potential car movements per week from the medical practice.  The applicant said he would accept conditions that required he be the practitioner using the premises and that, as he had originally submitted, he would convert the premises to residential use when he retired, probably in about 10 years.

The refusal

1. At its 25 October 2010 meeting, the Council resolved to inform the Tribunal that it had considered but did not support the September plans.  The reasons given were essentially a repeat of the reasons given for the refusal of the original application in August 2010, except for the reason associated with the loss of residential use.  The reasons given by the respondent for not supporting the September plans were:

   a)the proposal is contrary to the orderly and proper planning and the preservation of the amenity of the locality;

   b)the proposal is contrary to the intent of Council's current and proposed Local Planning Schemes for the Residential Zone;

   c)the district provides a town centre, adjacent office area and two local centres as established locations appropriately zoned and developed to accommodate consulting rooms, professional offices and other businesses in defined, accessible and serviced hubs with public parking and associated facilities, without causing undue adverse amenity impacts on residential areas;

   …

   e)the proposed traffic generation, vehicular access, parking and movement arrangements are unsatisfactory in terms of convenience, safety and amenity; and

   f)the proposal would adversely impact directly on the amenity of the adjoining dwellings, the occupants all of whom have objected to such.

The issues

1. The respondent restated the reasons for not supporting the September plans as the issues to be determined in this matter.  The applicant restated the issues more succinctly as:

   1)Whether the proposed use is inconsistent with the intent of TPS 3 and Draft LPS 3.

   2)Whether the traffic and parking provisions of the proposed development would be unacceptable.

   3)Whether the impact on the amenity of the adjoining dwellings would be unacceptable.

2. The respondent said the refusal reason c) was an issue to be determined.  This is the reason related to there being other appropriate zones in which the use could be located.  The respondent argued that the proposed change of use would be better located in the town centre zone, the business zone or the residential and office zone of TPS 2.  This was because there would be either no, or an acceptable, impact on any residential uses and, nearby, there would be complementary medical and health professionals and shops and offices providing services to patients and staff.  The Tribunal acknowledges that these zones are suitable locations for the proposed medical consulting rooms.  However, as pointed out by the applicant, the proposal is to establish the proposed use on the site.  The applicant has argued that nearby related medical uses and shops are not necessary for the proposed use.

3. The Tribunal agrees that the question to be answered in this matter is whether there is a planning case for granting the special approval required under TPS 2 for the proposed change of use to be developed on the site.

Issue 1 ­ Whether the proposed development is inconsistent with the intent of TPS 2 and Draft LPS 3

1. In addition to TPS 2 and Draft LPS 3, Policy 007 is also relevant to the consideration of the matter because the proposal includes a professional office in a residential zone.  Each of these three planning instruments includes the intention that non­residential uses only be granted 'special approval' to locate in a residential zone if they do not have an adverse impact on the amenity of the neighbourhood.  The impact on amenity of traffic generated by the proposed change of use and the parking required for the use are addressed below.  At this point, it is appropriate to point out that the Tribunal has formed the opinion that the impact from the change of use attracting non­residential traffic to the site will have an impact on the amenity of the neighbouring residents.

2. The site will also be used for residential purposes, and the applicant pointed out that tenants will be carefully selected and so would be compatible with the proposed professional office use.  In this regard, the Tribunal would comment that the proposed uses would be inconsistent with the residential amenity of the locality.  The proposed residential use would be required to use the car park as open space, notwithstanding that it would include landscaping around the margins.  The Tribunal considers that the lot is too small in this respect and the proposed development would be inconsistent with the residential amenity established in the neighbourhood.  The proposed development would therefore be inconsistent with the intent of the residential zone under TPS 2 and Draft LPS 3.

3. The applicant made reference to the objective for the residential zone in Draft LPS 3 of providing non­residential uses where compatible with amenity of residential localities and where there would be retained local services within a residential area for the convenience of the local community.  The applicant said his proposed consulting room provided an amenity to the residents of Cottesloe; his particular service had been provided in the district for 15 years, with many of his patients being from Cottesloe.  He said if the consulting room was not approved, he might have to locate to another suburb and the service he provides would be lost as a local amenity.  To retain his practice would be consistent with the objectives of the residential zone under Draft LPS 3.  This amenity to the locality should, in his opinion, be given greater weight than any impact on neighbours, which he considered was, at worst, neutral in any event.

4. The Tribunal notes that the service the applicant provides is a specialised service for a particular segment of the community; that is, those with chronic pain.  The service provided is not one for the community at large to make use of on a regular basis and it is not particularly related to the residential locality in which it would be situated.

5. It might reasonably be argued that other occupants of professional offices could make a similar claim for their specialised service being located in a residential area when they have a custom base drawn largely from Cottesloe.  The proposed location would be to the convenience of existing and potential patients who live in Cottesloe and to the applicant, for financial reasons and because he could continue to cycle to work from his North Cottesloe home.  The Tribunal considers that, while having such a service in Cottesloe might be an advantage to the community as a whole, the proposed use would not be consistent with the objective of both TPS 2 and Draft LPS 3 of a professional office contributing to the amenity of the residential locality within which it would be located.

Issue 2 ­ Whether the traffic and parking provisions of the proposed development would be unacceptable

1. The applicant said that the traffic movements from the site of between 10 and six vehicles per day, depending upon the hours worked, or up to 45 vehicles per week, would be negligible compared to the 4,000 vehicles per day the respondent has said used Railway Street.  Mr Trigg, for the respondent, said the concern was not just the number of vehicles but the potential safety problems arising from the vehicles entering and leaving the site.  Mr Trigg said that investigation in 2004 had revealed vehicles accelerated when exiting the roundabout into Railway Street.  In his opinion, it was potentially dangerous to have cars slowing close to the roundabout to enter the site.  He also considered it dangerous for the vehicles to be exiting the site at the angle of the driveway onto Railway Street close to the intersection.

2. The applicant said the proposed vehicle movements were not dissimilar to vehicles leaving and entering each of the house lots along Railway Street and would most likely be less than vehicle movements by a family with young adult children entering and leaving the site.

3. The Tribunal is of the view that safety concerns would increase with non­residential visitors unfamiliar with the locality being attracted to the professional office on the site compared to movements by local residents.  However, while attracting non­residential traffic to the site is best avoided, traffic movement to and from the site in a street where all properties have a crossover is not, of itself, considered by the Tribunal to constitute a reason for refusal.

4. Mr Trigg was concerned the five rear parking bays, two of which are designated for residential use, would be inadequate.  He said appointments would overlap, residents might have visitors, and deliveries and sales people might visit at any time.  Mr Trigg said any additional vehicles visiting the site would not then be able to manoeuvre to exit the site in forward gear and this would add to safety concerns.  The applicant said this was unlikely because of the likely absence of the residents during the day and because of how he would organise his practice.

1. The Tribunal is of the view that Mr Trigg's concerns in this regard have merit; preference is that vehicles exit the site in forward gear, notwithstanding that cars from residences in Railway Street mostly reverse out.

2. The possible consequences of parking on the site is also not determinative of the matter but is considered to be best avoided.  Parking off­site was also a concern of the respondent.  Mr Trigg was concerned that visitors to the site would miss the entrance and decide to park in Boreham Street to the detriment of the amenity of the residents of that street.  Also of concern was visitors to the site choosing to park on the opposite verge of Railway Street.  Barrier kerbing has been installed along Railway Street between Boreham Street and Eric Street to discourage parking close to the intersection.

3. All parking on­site is preferable to parking spilling over into neighbouring streets.  The Tribunal notes, however, that the western verge of Railway Street is 20 metres wide so the hazard that might result was not readily apparent.  Parking of one or two vehicles in Boreham Street might be annoying to residents but, at least on the day of the view by the Tribunal, there were numerous cars parking along Boreham Street.

Issue 3 ­ Whether any impact on the amenity of adjoining dwellings would be unacceptable

1. The respondent said the vehicles moving along the accessway and manoeuvring in the rear car park would have an adverse impact on the amenity of the private open space and courtyards at the rear of the houses abutting the southern and rear boundaries of the site.  This concern was expressed by objecting neighbours.

2. The applicant said there would only be between six and about 10 vehicles per day, depending upon the day of the week.  This, as mentioned above, would, in his opinion, be less than a family with young adult children with cars, and the noise generated by vehicles would hardly be discernable traffic noise in Railway Street.  The applicant said there would be no disturbance from the consulting room after the listed hours and on weekends.

3. The Tribunal considers it unlikely a residence would have the whole rear yard given over to parking with vehicles directed to park in that area.  The Tribunal is of the view that the proposed use would attract vehicles to the site that otherwise would not be there.  The use of their private open spaces by neighbours is not known, but the Tribunal is of the view that traffic movement and manoeuvring in the rear yard associated with the proposed use would have potential to impact unacceptably on the amenity of the neighbours.

4. The neighbours also have concern about the proposed use because of an expectation that the site would be used for residential purposes because of the residential zoning.  As discussed above the planning instruments do provide for consideration of a non­residential use in a residential zone where there would be retained a local service.  The Tribunal has found that the proposed professional office is to retain a service that serves Cottesloe as a whole and might alternatively be placed elsewhere in Cottesloe.  The use is not a service for the convenience of the locality where it is proposed to be located and it is not essential that it be sited where proposed.  The Tribunal is therefore of the view that the objections of the neighbours that introducing a non­residential use would affect their amenity is reasonably held in the circumstances.

Conclusion

1. The respondent, as ordered by the Tribunal, provided a schedule of conditions it would want imposed should the development be allowed.  The applicant did not object to the intent of the conditions, although he did express concern about the condition that required the approval be only for 12 months in the first instance.  The Tribunal has noted the conditions but does not consider they provide a basis for allowing the proposed change of use in light of the conclusions reached in the consideration of the issues.

2. The Tribunal has formed the opinion that the proposed change from residential to non­residential use on the site would, as a consequence of attracting to the site non­residential traffic, have a discernable impact on neighbouring residents because of the use made of the access leg and manoeuvring of vehicles in the rear parking area.  The Tribunal also considers the non­residential traffic introduced by the change of use would make a contribution to concerns about traffic safety in the vicinity of the Eric Street/Railway Street intersection because of vehicles entering and leaving the site.  The Tribunal has noted that patients of the practice include residents of Cottesloe.  The Tribunal has concluded, however, that the specialised nature of the proposed use does not provide a contribution to the amenity of the residential locality in which it would be located.  The Tribunal does not consider that the proposed service provided by the application warrants granting the 'special approval' required for an 'AA' use under TPS 2.

3. The Tribunal has concluded that the change of use proposed would not be consistent with the purpose of the residential zoning under TPS 2 and Draft LPS 3 and would therefore not be consistent with orderly and proper planning.  The Tribunal has therefore decided to dismiss the application.

Orders

1.The application for review is dismissed.

2.The refusal of the Town of Cottesloe is affirmed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER