SCHOTTE and TOWN OF VICTORIA PARK

[2011] WASAT 134

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   SCHOTTE and TOWN OF VICTORIA PARK [2011] WASAT 134

MEMBER:   MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD:   2 AUGUST 2011

DELIVERED          :   19 AUGUST 2011

FILE NO/S:   DR 158 of 2011

BETWEEN:   MARK SCHOTTE

KATHERINE KENDELL
Applicants

AND

TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning - Development application - Change of use from grouped dwelling to short stay accommodation - Residential building - Medium density residential area - Impact of short­term accommodation on the amenity of surrounding residents - Appropriateness of short­term accommodation within a residential area and a residential zone - Consistency of short­term accommodation with the statement of intent for the precinct - Residential area comprising a range of dwelling types to cater for a variety of household types and household needs - Noise - Social cohesion - Orderly and proper planning

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Town of Victoria Park Town Planning Scheme No 1 cl 2.2, cl 11, cl 15, cl 36, cl 36(5)
Residential Design Codes of Western Australia (2002)

Result:

Review is upheld subject to conditions

Category:    B

Representation:

Counsel:

Applicants:     Mr J Algeri (Representative)

Respondent:     Ms A Butterworth (Representative)

Solicitors:

Applicants:     Algeri Planning & Appeals (Town Planners)

Respondent:     Allerding & Associates

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

Burns and City of Fremantle [2006] WASAT 268

Hope and City of Joondalup [2007] WASAT 8

Pearson & Anor and City of Fremantle [2006] WASAT 257

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. These proceedings involved an application for review of a decision by the Town of Victoria Park to refuse the proposed use of the existing dwelling, located at the rear of two existing dwellings at No 77C (Lot 1213, Strata Lot 3) Carnarvon Street, East Victoria Park for the purpose of accommodating short stay residential tenants.

2. The issues arising for determination in the review were as follows:

   1.Does the use of short[-]term accommodation have the potential to have an adverse impact on the amenity of surrounding residents?

   2.Is the proposed use of a dwelling for short[-]term accommodation appropriate within a residential area and within a Residential zone?

   3.Is the proposed use of a dwelling for short[-]term accommodation consistent with the Statement of Intent for the Shepperton Precinct?

   4.Would approval of the application be in accordance with proper and orderly planning?

3. The substantive issues in the review were the potential for an adverse impact on the amenity of surrounding residents and whether the use was consistent with the statement of intent for the Shepperton Precinct.

4. In terms of potential impacts on balance, the Tribunal held the view that any possible impacts were acceptable, given the low risk, the specific mitigating circumstances of this particular case and the fact that no objections to the proposal were forthcoming.

5. In the context of the less than explicit detailed provisions of the precinct plan, the clearly stated intent to 'cater for a variety of househol[d] types and housing needs' and the fact that a residential building was an AA use class in the precinct, the Tribunal found that the use of a dwelling for short­term accommodation could not be regarded as inconsistent with the statement of intent for the Shepperton Precinct.

6. For these reasons the review was upheld subject to conditions.

Introduction

1. These proceedings involve an application brought by Mr Mark Schotte and Ms Katherine Kendell (applicants). 

2. The applicants, who had previously resided at the premises at No 77C (Lot 1213, Strata Lot 3) Carnarvon Street, East Victoria Park (subject site), relocated to Dunsborough and had since that time rented the property on a short stay basis. 

3. Following correspondence from the Town of Victoria Park (respondent or Council) advising that the use of a dwelling for short­term accommodation required planning approval, the applicants duly applied for approval. 

4. This application was refused by the respondent and the applicants subsequently applied to the Tribunal for a review of that decision.

Site and locality

1. The subject site is located on the southern side of Carnarvon Street, East Victoria Park midway between Lake View Street and Norseman Street.  The subject site has an area of 896 square metres and has been developed with three grouped dwellings.  All three dwellings are two storey brick structures with timber feature walls and metal roofs.

2. The two northern dwellings take vehicular access from Carnarvon Street while the residence the subject of this review takes vehicular access from a constructed right of way (ROW) which runs between Carnarvon Street and Kate Street from Lake View Street to Norseman Street.

3. Carnarvon Street runs parallel to Shepperton Road, between that street and the railway line in the area between Mint Street and Oats Street.  Carlisle Station is in reasonably close proximity to the subject site.

4. The majority of the area, including all properties in the immediate locality of the subject site, are zoned Residential under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme) with a Residential Design Codes of Western Australia (2002) (Codes) density designation of R40.  A driving school does, however, operate from a property on the opposite side of Carnarvon Street from the subject site.

Planning framework

1. The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS).  It is zoned 'Residential' and has a residential density coding of R40 under TPS 1.

2. The subject site is within the Shepperton Precinct established by cl 11 of TPS 1.  The Precinct Plan No 10 - Shepperton Precinct (Sheet A and Sheet B) (Precinct Plan) seeks to retain 'a pleasant, low scale, medium density housing area' in this precinct.  In order to 'ensure the cohesion of the area as a residential locality 'the only new non-residential activities to be permitted in the area should be those which predominantly function to provide for day-to-day local needs'.

3. In addressing the 'Residential' zone, Sheet B of  the Precinct Plan states that '[t]he area will be consolidated as a residential area comprising of a range of dwelling types to cater for a variety of househol[d] types and housing needs'. 

4. Sheet B of the Precinct Plan also designates the R40 coded area south­east of Oats Street '[for] multiple dwellings and specialised forms of residential accommodation, in addition to single and grouped housing ...'

5. In dealing with the use of land, the Precinct Plan draws a distinction between 'Grouped Dwelling' which is a P use and 'Residential Building' which is an AA use: a use 'not permitted unless Council has granted planning approval' (TPS 1 at cl 15).

6. TPS 1, in defining 'Residential Building', draws on the Codes which in cl 2.2 establishes the following definition:

   A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:

   •temporarily by two or more persons; or

   •permanently by seven or more persons,

   who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel, or a residential school.

7. Clause 36(5) of TPS 1 sets out matters to which the Council is to have regard in determining an application and includes the following:

   (a)[t]he provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;

   (b)any relevant planning policy;

   (c)any relevant precinct plan;

   (d)any Statement of Planning Policy of the Western Australian Planning Commission;

   (e)any planning study approved by the Council;

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

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

   (h)the conservation of the amenities of the locality; and

   (i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.

Proposed development

1. The applicants proposes the use of the existing grouped residential dwelling, located at the rear of two existing dwellings at the subject site, for the purpose of accommodating short­stay residential tenants.

2. The applicants have advised that the tenants to be accommodated are either likely to be business professionals on contract or short­term work agreements in Western Australia, or families or groups of people moving to Western Australia and requiring transitional accommodation.  The typical lease periods are likely to be from three weeks to three months.  The applicants have a commercial arrangement with a local provider in place to provide on­call assistance, management and cleaning supervision.

3. The residence comprises a two storey structure with a lounge room, meals, family room, kitchen, and toilet and laundry on the ground floor.  Pedestrian access is provided from both Carnarvon Street and from the ROW at the rear of the site.  A double garage accessed from the ROW is provided at the south­east corner of the site.  The upper floor contains three bedrooms, two bathrooms and a small balcony facing the ROW.

Respondent's decision

1. The planning application for the use of the existing grouped dwelling at the subject site for short­stay accommodation was submitted to the respondent on 25 January 2011.

2. In accordance with the respondent's GEN 3 'Community Consultation' Policy, the application was the subject of consultation for a period of 14 days and letters were sent to the surrounding owners and occupiers.  No submissions were received.

3. At the ordinary meeting of the Council held on 5 April 2011, the respondent received a report from a Council officer recommending approval subject to a number of conditions.  One of the suggested conditions was to limit the approval to a 12 month period.

4. On the same day, the respondent refused the application for the following reasons:

   1.The proposed use would have an adverse impact upon the amenity of the other dwellings within the same development, by way of noise resulting from vehicular and pedestrian movements of both short­term residents and visitors.

   2.The proposed use being for commercial purposes is considered to be inappropriate within this residential area.

The issues

1. The issues arising for determination in the review were set out by the respondent as follows:

   1.Does the use of short[-]term accommodation have the potential to have an adverse impact on the amenity of surrounding residents?

   2.Is the proposed commercial use of a dwelling for short[-]term accommodation appropriate within a residential area and within a Residential zone?

   3.Is the proposed commercial use of a dwelling for short[-]term accommodation consistent with the Statement of Intent for the Shepperton Precinct?

   4.Would approval of the application be in accordance with proper and orderly planning?

2. In responding to this statement of issues, the applicants, while accepting the four issues identified, challenged the designation of 'commercial use' in Issues 2 and 3 which it was argued constituted a misrepresentation of the proposed use of the land.

3. At the hearing on 2 August 2011, it was agreed by the parties that these two issues should be restated as follows:

   2.Is the proposed commercial use of a dwelling for short[-]term accommodation appropriate within a residential area and within a Residential zone?

   3.Is the proposed commercial use of a dwelling for short[-]term accommodation consistent with the Statement of Intent for the Shepperton Precinct?

4. The Tribunal will address each of the matters in turn.

Does the use of short-term accommodation have the potential to have an adverse impact on the amenity of surrounding residents?

1. In addressing the question of potential amenity impacts, Ms Butterworth for the respondent, argued that the impacts were related to both noise and social cohesion which she regarded in principle as having equal importance.

2. More specifically, any noise associated with the use could potentially impact on both townhouse 2 (the adjacent grouped dwelling) and the dwelling at No 6A Kate Street (located to the south­west on the other side of the ROW).  In terms of social cohesion, Ms Butterworth argued the impact could fall on properties in the immediate locality. 

3. Ms Butterworth expressed the view that in short­term accommodation it was more likely that residents would be on holiday or operating outside the usual residential patterns pertaining to the locality, with increased potential to generate impacts on the amenity of surrounding residents.

4. In submitting these arguments, Ms Butterworth conceded that the proposed use, while falling outside the statutory definition of 'dwelling', did constitute a residential use.  She also accepted that amenity concerns relating to noise could arise from 'permanent' residential use.

5. In responding, Mr Algeri for the applicants, argued that as densities increased, residential areas tended to become more diverse and social cohesion, while relevant, was very different in nature from that pertaining to low density residential areas.  Older inner city suburbs also had a legacy of inherited uses such as the driving school in Carnarvon Street.

6. Mr Algeri also submitted that given the context, the subject property would not attract 'holiday stay' tenants who were likely to gravitate to tourist/entertainment areas such as Fremantle.  He suggested that the corporate tenants likely to occupy the premises would not in this context generate issues of noise or social cohesion and, in his view, the potential impacts were speculative.

7. In regard to the amenity impact, the Tribunal accepts the suggestions of Ms Butterworth in terms of identifying areas of potential impact.  However, in terms of potential noise impacts, there are a number of mitigating factors which need to be considered.  No windows of the subject property face onto the private open space of the adjacent grouped dwelling, townhouse 2, and all living areas face away from this dwelling.  In addition, the dwelling at No 6A Kate Street is orientated towards the south and the open space adjacent to the ROW is a service courtyard.

8. Importantly, in terms of access, the subject property takes vehicular access from the ROW and is likely to make limited use of the common area for pedestrian access mediating potential noise impacts associated with access in regard to the other two grouped dwellings on the subject site.

9. In regard to the question of social cohesion, the Tribunal accepts the submission of the applicants that the expectations in more dense inner city areas are likely to be qualitatively distinguished from those in a low density single residential area.  Such areas are likely to have a higher rate of turnover given the respondent's encouragement of 'infill' housing development in the area.  In addition, inner city areas are likely to have a higher percentage of rental properties than low density single residential areas.  In this context, the potential impacts on social cohesion do not warrant refusal of the proposed development.

10. Finally, the use for which approval is being sought has operated for 13 months without complaint.  In addition, the proposed development was advertised with no submissions received.  While the respondent identified limited potential impacts on the amenity of surrounding residents the risk of these occurring is small.  On balance, the Tribunal is of the view that any possible impacts are acceptable, given the low risk and specific mitigating circumstances of this case.

Is the proposed use of a dwelling for short­ term accommodation appropriate within a residential area and within a Residential zone?

1. It was agreed between the parties that the proposed use constituted a 'Residential Building' under the provisions of TPS 1 and that this constituted an AA use class not permitted unless the Council has granted planning approval.

2. Thus there was no immediate statutory impediment to the establishment of a residential building in a residential area or residential zone.

3. In this context, there is no basis to refuse the application on such general grounds, and it needs to be assessed on its merits both in terms of the specifics of the current proposal and in terms of the veracity of the arguments advanced in terms of the appropriate interpretation of the relevant planning instruments.

Is the proposed use of a dwelling for short­term accommodation consistent with the statement of intent for the Shepperton Precinct?

1. Ms Butterworth submitted that the Precinct Plan in dealing with the Residential zone specifically seeks to consolidate a residential area comprising a range of dwelling types.  She noted, however, that the definition of 'dwelling' established by the Codes specifically requires permanent habitation.

2. Ms Butterworth also argued that while the Precinct Plan did not expressly preclude a 'Residential Building' it was silent on 'multiple dwellings and specialised forms of residential accommodation' other than in the area of the precinct in the R40 coded area south­east of Oats Street.  However, she was of the view that residential buildings should be located in the R40 coded area south­east of Oats Street.

3. Mr Algeri accepted that the planning instruments were generally silent on the treatment of residential buildings.  He also suggested that while it might be preferable to locate residential buildings south­east of Oats Street, such uses were clearly not precluded elsewhere in the precinct.  In his view, such applications should be assessed on their merits.

4. In this context, the issue was whether it was appropriate to consider residential buildings in the area of the precinct outside that south­east of Oats Street. 

5. In addition, the zoning table in TPS No 1 (included in the Precinct Plan) establishes uses such as consulting rooms, day care centres, educational establishments, places of worship, hospitals and nursing homes as AA uses in the Shepperton Precinct.  The Precinct Plan, however, also suggests that 'the only new non­residential activities to be permitted in the area should be those which predominantly function to provide for day­to­day local needs'.  These provisions imply some tensions between the range of potential uses established by the land use table and other precinct plan provisions.

6. In the context of the less than explicit detailed provisions of the precinct plan, the clearly stated intent to 'cater for a variety of househol[d] types and housing needs' and the fact that a residential building is an AA use in the precinct the Tribunal finds that the use of a dwelling for short­term accommodation cannot be regarded as inconsistent with the statement of intent for the Shepperton Precinct.

Would approval of the application be in accordance with proper and orderly planning?

1. The question to be addressed in terms of the assessment of proper and orderly planning is whether the approval would compromise any principle arising from the relevant planning instruments.

2. While the respondent argued that residential buildings should be located in the R40 coded area south­east of Oats Street, this was an interpretation of a provision that, it was accepted, was not explicit in terms of the treatment of residential buildings in the precinct.

3. Given it was agreed that there was no statutory impediment preventing an approval and that a merits assessment of the circumstances of this case established that the potential risk to the amenity of surrounding residents was acceptable, the Tribunal is of the view that an approval cannot be held to undermine proper and orderly planning in the precinct.

Precedent

1. A number of previous Tribunal decisions were raised by the parties in this matter.

2. However, the evidence provided in the hearing by both parties suggested that these decisions could be differentiated from the application the subject of this review.

3. Hope and City of Joondalup [2007] WASAT 8 involved a use that was determined to be an 'unlisted use' in a low density residential area, while both Pearson & Anor and City of Fremantle [2006] WASAT 257 and Burns and City of Fremantle [2006] WASAT 268 were located in the 'Central Business zone' of the City of Fremantle. Thus the statutory planning framework in all of these reviews was very different from that applying in the current context. Less critically, although still relevantly, in each of these three cases there had been community opposition to the proposed change of use, a circumstance conspicuously absent in the present case.

Conclusion

1. In regard to the amenity impact, the Tribunal accepts the suggestions of Ms Butterworth in terms of identifying areas of potential impact, although in terms of potential noise impacts there are a number of mitigating factors which need to be considered.

2. In regard to the question of social cohesion, the Tribunal accepts the submission of the applicants that the expectations in more dense inner city areas are likely to be qualitatively distinguished from those in a low density single residential area. 

3. In terms of cumulative amenity aspects, while the respondent identified limited potential impacts on the amenity of surrounding residents, the risk of these occurring is small.  On balance, the Tribunal is of the view that any possible impacts are acceptable, given the low risk, the specific mitigating circumstances of this case and the fact that no objections to the proposal were forthcoming.

4. In terms of the acceptability of such a use in a residential zone and residential area, the Tribunal finds there is no immediate statutory impediment to the establishment of a residential building in a residential area or zone.  In this context, there is no basis to refuse the application on such general grounds; it needs to be assessed on its merits, both in terms of the specifics of the proposal and in terms of the veracity of the arguments advanced regarding the appropriate interpretation of the relevant planning instruments.

5. In the context of the less than explicit detailed provisions of the precinct plan, the clearly stated intent to 'cater for a variety of househol[d] types and housing needs' and the fact that a residential building is an AA use in the precinct, the Tribunal finds that the use of a dwelling for short term accommodation cannot be regarded as inconsistent with the Statement of Intent for the Shepperton Precinct.

6. Given it was agreed that there was no statutory impediment preventing an approval and that a merits assessment of the circumstances of this case established that the potential risk to the amenity of surrounding residents was acceptable, the Tribunal is of the view that an approval cannot be held to undermine proper and orderly planning in the precinct. 

7. For these reasons the review was upheld subject to conditions.

Conditions

1. The draft without prejudice conditions submitted by the respondent set out ten conditions which the respondent believed should be attached to any approval should the Tribunal decide to uphold the appeal.

2. In response, the applicants raised objections with two conditions which read as follows:

   1.The use of the existing building on the site as a 'Residential Building' is valid for a period of twelve months only from the date of this approval.  An extension of time beyond this twelve month period may be considered by Council upon the submission of a further application for approval and having regard to the impact that the use may have had during the twelve month period, and any complaints that may have been received.

   ...

   8.All vehicular and pedestrian access to the subject premises are to be taken from the right-of-way only.  Access to the common property driveway to Carnarvon Street shall be limited to the collection of mail and the loading and unloading of refuse and recycle bins on Carnarvon Street only.

3. The applicants objected to Condition 1 on the grounds of the cost and inconvenience in respect to any future applications, while the respondent argued renewing approvals were necessary to ensure ongoing compliance with management commitments.  It was accepted by the respondent that the underlying motivation was to provide Council with a more expeditious and less cumbersome mechanism of redress than that provided by prosecution under the relevant planning legislation.

4. In the context of the present review where the use has operated without complaint for a period of 13 months (advertising of the proposal resulted in no submissions to the Council) the approval was, by agreement between the parties, limited to the current applicants and the Tribunal had found that possible impacts were acceptable and so the Tribunal finds for the applicants on this point.

5. In regard to the proposed Condition 8, it was agreed between the parties at the hearing that the condition should be reworded as follows:

   8.All vehicular access to the subject premises is to be taken from the right of way only. 

Orders

1. The Tribunal makes the following orders:

   1.The review of the decision by the Town of Victoria Park on the 5 April 2011 to refuse a change of use of the existing grouped dwelling at No 77C (Lot 1213, Strata Lot 3) Carnarvon Street, East Victoria Park to residential building is upheld.

   2.The use of the existing grouped dwelling at No 77C (Lot 1213, Strata Lot 3) Carnarvon Street, East Victoria Park as a 'Residential Building' is granted subject to the following conditions:

   (i)This approval is for the operation of the premises as a 'Residential Building' by the applicants, Mr Mark Schotte and Ms Katherine Kendall only.  The operation of the premises as a 'Residential Building' by any other person(s), or the use of the premises for any other purpose, will require an application for planning approval to be submitted to and approved by the Town of Victoria Park.

   (ii)Operation of the use described in Condition (i) above to be in accordance with the conditions of this approval and the applicants' written information dated 8 March 2011.  Where there is an inconsistency between the applicants' information and the conditions of this approval, the conditions of this planning approval shall prevail at all times.  Any changes to the approved operations or variation to the conditions of this planning approval will require an application for planning approval to be submitted to and approved by the Town of Victoria Park.

   (iii)Before the subject development is first occupied or commences operation, the applicants are required to provide the contact details of the caretaker or the business representative of the subject premises to the adjoining owners and occupiers at No 77A and No 77B Carnarvon Street, East Victoria Park.  Written confirmation of the provision of these details is to be provided to the Town of Victoria Park prior to the commencement of the use.  Updated contact details shall be provided to the adjoining owners and occupiers at No 77A and No 77B Carnarvon Street, East Victoria Park as well as written confirmation of the provision of such details to the Town of Victoria Park, at the time of any change to the contact details of the caretaker or the business representative of the premises.

   (iv)A maximum of six (6) persons are permitted to reside at the subject premises at any one time, with no individual letting of rooms.

   (v)A minimum and a maximum of two (2) carparking bays are to be provided on site for the use of the tenants/occupants of the 'Residential Building' at all times.  All tenant/occupier car parking is to be contained on site at all times and is not permitted to exceed two (2) vehicles at any one time.

   (vi)The arrival (check-in) and departure (check-out) of guests/tenants of the 'Residential Building' shall not occur outside the hours of 8 am to 10 pm.

   (vii)All vehicular access to the subject premises is to be taken from the right of way only. 

   (viii)No advertising material or signage with respect to or in connection with the approved 'Residential Building' is to be displayed or erected on the site.

   (ix)All external areas and associated common property of the subject premises to be maintained in a clean and tidy state of repair at all times to the satisfaction of the Manager, Planning Services, Town of Victoria Park.

   I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MR P DE VILLIERS, SENIOR SESSIONAL MEMBER