SHARON PROPERTY PTY LTD and PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL - [2021] WASAT 63

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   SHARON PROPERTY PTY LTD and PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL [2021] WASAT 63
MEMBER:   DR S WILLEY, SENIOR MEMBER
MR J JORDAN, SENIOR SESSIONAL MEMBER

HEARD:   8, 20-22 OCTOBER, 17 DECEMBER 2020
DELIVERED          :   7 MAY 2021
FILE NO/S:   DR 161 of 2019
BETWEEN:   SHARON PROPERTY PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO INNER-NORTH JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town Planning - Development application - Day care centre - Principles of interpretation for planning schemes - Whether definition of 'child care centre' has been re-enacted in National Law - Amenity - Noise - Community noise - Extent of Tribunal's jurisdiction - Noise as a planning consideration - Traffic - Traffic safety - Visual amenity - Compatibility - Need and demand - Policy - Weight to be given to reactive policies

Legislation:

Child Care Services (Child Care) Regulations 2006 (WA)
Child Care Services Act 2007 (WA)
Child Welfare (Care Centres) Regulations 1968 (WA) as amended or re-enacted, reg 2
Child Welfare Act 1947 (WA), reg 2
Education and Care Services National Law Act 2012 (WA)
Education and Care Services Regulations 2012 (WA)
Environmental Protection (Noise) Regulations 1997 (WA), Sch 1, Pt C, Sch 2, reg 2, reg 7, reg 8, reg 16(3)
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 5, s 16
Land Administration Act 1995 (WA), s 55(2)
Metropolitan Region Scheme
Noise Control Act 1976-1977 (SA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Pt 2, Div 2, Sch 2, cl 1, cl 3(3), cl 3(5), cl 64, cl 67(2)
Planning and Development Act 2005 (WA), s 68(1)(a), s 171A, s 241(1)(a), s 257(B), s 257(B)(2)
State Administrative Tribunal Act 2004 (WA), s 29(1), s 31
Town of Claremont Local Planning Scheme No. 3, cl 10, cl 14(3)(d), cl 14(3)(d)(vii), cl 28(2), cl 29, cl 36(6), cl 37A, cl 46, cl 86(2)(e), Appendix Xi

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr M Hotchkin
Respondent	:	Ms C Ide and Ms B Loftus

Solicitors:

Applicant	:	Hotchkin Hanly
Respondent	:	State Solicitor's Office

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

Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
BHY Alexander Unit Trust and City of Nedlands [2021] WASAT 41
Bonton Pty Ltd v City of South Perth [1982] WAR 213
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Cann and Shire of Augusta-Margaret River [2021] WASAT 22
Carcione Nominees Pty Ltd v Western Australian Planning Commission & Ors [2005] WASCA 56; (2005) 30 WAR 97; (2005) 140 LGERA 429
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96
Day v Adam; ex parte Day [1989] 2 Qd R 9
Del Giacco and City of Melville [2008] WASAT 134
Evangel Christian Fellowship Inc and Shire of Serpentine Jarrahdale [2017] WASAT 159
Ex parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282
Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74
John Cranston and Shire of Serpentine Jarrahdale [2019] WASAT 19
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Love and City of Joondalup [2006] WASAT 69
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Wright [2004] ACTSC 83; (2004) 149 A Crim R 298
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Rossetto & Co Pty Ltd v District Council of East Torrens (1984) 54 LGRA 390
Sanders v City of South Perth [2019] WASC 226
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Urban Resources Pty Ltd and City of Swan [2016] WASAT 81
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
Vespoli and City of Stirling [2013] WASAT 161
Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27
Zampatti v Western Australian Planning Commission [2010] WASCA 149, (2010) 176 LGERA 150

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding relates to a proposed child care centre on Lots 18 and 19 Alfred Road, Swanbourne (the Land). The proposed development will accommodate 90 children with 18 staff which will operate Monday to Friday from 7am to 6pm (Proposed Development).
The Metro Inner NorthWest Joint Development Assessment Panel (DAP) refused the Proposed Development initially on 12 July 2019 and, on reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), reiterated that decision on 5 February 2020. The Presiding Member of the DAP is the respondent in these proceedings.
This matter was heard over five days in October and December 2020. At the commencement of the final hearing on 8 October 2020, we inspected the Land and the surrounding streets together with the parties.
The final hearing centred on the questions of noise, traffic and safety, access and egress, amenity (including visual amenity) as well as questions of need and demand.
For the following reasons, the application for review should be dismissed. We have reached this decision not on the basis of a singular reason alone. Rather, we consider that the cumulative impacts arising from the physical design, car parking, traffic and noise together are such that the Proposed Development is ill-suited to its context and should be refused. That is, the scale of the Proposed Development is beyond what might reasonably be able to be accommodated and is therefore incompatible with its context.

Procedural history

The following background, which is not contentious, is drawn largely, but not exclusively, from the Respondent's Further Responsive Statement of Issues, Facts and Contentions: Exhibit 5.
The Rowe Group, on behalf of the Sharon Property Pty Ltd (applicant), lodged a development application for a child care centre on Lot 18 (No. 164) and Lot 19 (No. 162) Alfred Road, Swanbourne (being the Land). The development application was received by the Town of Claremont (the Town) on 12 April 2019.
The development application was for a child care centre designed to accommodate 90 children and 18 staff and to operate Monday to Friday from 7am to 6pm (Original Application).
On 12 July 2019 the respondent refused the Original Application.
On 7 August 2019 the applicant lodged an application for review of the respondent's decision with the Tribunal.
Following mediation, the applicant formally amended its plans pursuant to orders made by the Tribunal on 6 November 2019. These amended plans, and accompanying material, were filed with the Tribunal on 21 November 2019 (the Revised Proposal).
An order was also made pursuant to s 31 of the SAT Act for the respondent to reconsider its decision in January 2020 on the basis of the Revised Proposal.
The Revised Proposal, inter alia, made the following relevant changes to the Original Application:
(a)reduced the number of children from 90 to 65 and the number of staff from 13 to 12;
(b)replaced the single storey design with a two storey building including a traditional gable roof;
(c)reduced the number of car parking bays from 20 to 19;
(d)increased side setbacks to the eastern and southern adjacent residential properties;
(e)added a 6 m wide landscaped buffer to the southern residential boundary; and
(f)added an additional left-in access from Alfred Road.
On reconsideration, the respondent resolved to refuse the Revised Proposal for the following reasons:
1.The proposed Child Care Centre is inconsistent with Town of Claremont Local Planning Scheme No. 3 with respect to:
(a)Day Care Centre is an 'SA' use within Table I - Land Use Table. It is considered the proposed will have a significant detrimental impact on the existing quiet residential amenity of residents in the locality by way of increased traffic volumes and safety, on street parking and visual amenity. Accordingly the land use is not considered to be an appropriate land use within the 'Residential' zone.
(b)Clause 46(3) which requires 'the continuation of the domestic scale and architectural character of the area ...' It is considered the bulk of the building and the excessive area of hardstand for parking is not fully in keeping with the residential character of the area.
2.The proposed Child Care Centre is inconsistent with Town of Claremont Local Planning Policy 206 - Child Care Centres with respect to:
(a)Location requirements as:
(i)the proposal is not contained within a preferred zone, nor immediately adjacent to a preferred zone.
(ii)the proposal does not adjoin a compatible land use and the traffic increase has not been demonstrated to be suitable from an engineering view.
(iii)the site is not of sufficient size to accommodate the development without impacting on the amenity of the surrounding area.
(iv)access to the site includes access from a local access street which is likely to result in traffic, parking and associated amenity concerns.
(v)the proposal is located on a high traffic volume road where noise is likely to have an adverse impact on the site.
(b)Site requirements, as the site is not of sufficient size to accommodate the development with required outdoor play areas suitably located.
(c)Development requirements as:
(i)the visual appearance of the parking associated with the development does not reflect the residential character of the area with excessive hardstand area.
(ii)outdoor play areas located adjacent to the residential boundary to the east are considered to be disruptive to residential amenity.
(iii)the Traffic Impact Statement does not take into consideration the locational circumstances of the site. The increase in traffic will have a detrimental impact on levels of service for the Alfred Road and Butler Avenue intersection, and may result in increased safety risks. It is noted that the residents submitted an independent Traffic Impact Statement which makes a number of recommendations for modifications to the road network to improve traffic and pedestrian safety which cannot be accommodated due to specific constraints identified at this location, further indicating that the site is not suitable for the development.
(iv)access is proposed from Butler Avenue which is a short no-through Access Road and is likely to have a significantly detrimental impact on the amenity of residents and locality.
(v)outdoor play areas are located adjacent to boundaries with residential properties, which may have a negative impact on the adjoining residents.
(vi)the introduction of a commercial Child Care Centre into a predominately residential area will likely have a detrimental impact on the amenity of the locality in regards to traffic and parking, and consequent safety issues.
3.The proposed building significantly exceeds the requirements for internal and external play areas under the Child Care Services (Child Care) Regulations 2006. This unnecessarily increases the bulk of the building, impacting on the existing residential amenity of the area. It also provides an opportunity for an application to be made in the future to increase the number of children at the centre, which could then potentially have an even greater impact on residential amenity.
On 4 May 2020, the applicant indicated it wished to modify its proposal to accommodate 90 children and 18 staff based on the Original Application. On 5 June 2020, the applicant was granted leave to amend its application. Accordingly, the Original Application is the Proposed Development the subject of the hearing.
On 13 August 2020, the applicant provided the respondent with, and on 21 August 2020 filed, an amended plan (Plan SK016) which, relevantly, includes the following details of the Proposed Development:
(a)27 car parking bays (12 in tandem formation), comprising of 9 designated visitor bays, 1 ACROD bay and 17 staff bays;
(b)two turnaround bays in the carpark area - one adjacent to the ACROD bay and the second 1 metre from the eastern property boundary;
(c)a 2 metre high masonry fence along the eastern boundary of the subject land and for that part of its southern boundary abutting the outdoor play area;
(d)removal of the dedicated 6 metre wide landscaping strip referred to in paragraph [13(e)] above; and
(e)amendments to the size and arrangement of the internal floor areas and outdoor play areas.

Issues

The ultimate issue for the Tribunal is to determine whether the correct and preferable decision is to approve the Proposed Development on the Land.
The parties consider that 15 separate issues arise for determination. While we agree that all of the matters canvassed by the parties require consideration, many of them are not separate and discrete issues.
We consider the following issues arise for determination:
1.The correct classification of the Proposed Development under the Town of Claremont Local Planning Scheme No 3 (LPS 3).
2.Whether the Proposed Development warrants approval having regard to:
(a)noise;
(b)traffic (including safety);
(c)car parking, including access and egress arrangements;
(d)visual amenity;
(e)compatibility; and
(f)community need.

Facts

Description of Site and Surroundings

The Land

The subject land is situated on the corner of Alfred Road and Butler Avenue in the suburb of Swanbourne and is located approximately 1.4 kilometres north-west of Claremont Quarter shopping precinct.
The Land has an area of l,849m²and currently contains a single dwelling.

The locality

The immediate locality is characterised by residential land uses, with single dwellings and some grouped dwellings. The built form is typically one or two storey residential dwellings.
Residential density codes range between R20 and R25. The locality's existing pattern of subdivision is more akin to the R12.5 density code, with property sizes generally greater than 800m² in area.
The Land is zoned Residential R20 in LPS 3. The southern and eastern boundaries of the Land directly abut two parcels of land zoned Residential R20. Lot 20 (No 4) Butler Avenue (southern boundary) contains a single dwelling under construction and Lot 37 (No 160B) Alfred Road (eastern boundary) is currently vacant land with frontage to Alfred Road at its northern boundary and is 941m² in area. To the immediate south east of the Land is Lot 35 (No 1) Myera Street, which contains a single dwelling.
Along Alfred Road residential development, comprising one storey single dwellings, is the predominant built form. There are a small number of newer two-storey single dwellings along Alfred Road.
On the northern side of Alfred Road, on the corner of Alfred Road and Lisle Street, there is a residential aged care facility. The facility is 328 metres to the north-east of the Land and is located within the City of Nedlands.
The Land is situated one block west of Lake Claremont, approximately 840 metres west of the Mount Claremont Primary School and 385 metres north-east of Swanbourne Primary School.
The Aria Apartments, a five to eight storey apartment complex, is located approximately 250 metres west of the Land.
Butler Avenue is a north-south tree-lined local road. The majority of houses along Butler Avenue are well set back from the bitumen road surface and do not have front boundary fences.
Linking to the cul-de-sac head at the southern end of Butler Avenue is an east-west shared pedestrian path network. This network connects to Narla Road to the west and Myera Street (and beyond) to the east. This pedestrian path network runs parallel to Bullaruk Bushland and connects through to Lake Claremont regional reserve (Bush Forever site 220).

Road network

Alfred Road

Alfred Road, which abuts the Land to the north, is a District Distributor A road and forms an east-west road connection between West Coast Highway and Stubbs Terrace. Alfred Road carries approximately 11,647 vehicles per day and is a major road. Appendix Xi to LPS 3 identifies Alfred Road as a street that carries a high volume of traffic.
Alfred Road is a two (2) lane (one lane in each direction) road adjacent to the Land and increases to a four (4) lane road (two lanes in each direction) to the immediate east of the Land. The signalised intersection at Rochdale Road/Myera Street is approximately 100 metres east of the Land.
The portion of Alfred Road adjacent to the Land contains a shared path on both sides of the road and does not have capacity for onstreet parking.
On the north side of Alfred Road, immediately adjacent to the Land, is a bus stop (Bus Stop ID: 19502.).
During morning peak period there is frequently significant queuing on the eastbound Alfred Road approach to the Rochdale Road traffic signals, in some instances that queuing extends beyond Butler Avenue.

Butler Avenue

Butler Avenue, to the west of the Land, is a local access street. It is a 208 metre long cul-de-sac.
As a no through road, Butler Avenue is the sole means of vehicular access and egress to its 18 existing properties, including the Land.
Butler Avenue accommodates approximately 161 vehicle movements per day. It terminates in a hammer-head configuration at its southern end, which does not allow for a continuous U-turn.
At its northern end, Butler Avenue forms a T-junction intersection with Alfred Road. Sightlines from the T-junction intersection towards the east, in the direction of the Rochdale Road signalised intersection, are restricted as a result of the curve and gradient along that part of Alfred Road. The restricted sightlines are also due to trees being planted in the Alfred Road verge.
Along the entire western boundary of the Land is a footpath which forms part of an extensive footpath network along both sides of Alfred Road. This path ends at the crest of Butler Avenue. There is no footpath on the balance of Butler Avenue.
At its steepest point, Butler Avenue reflects a 1/7 grade break in slope. The crest of Butler Avenue restricts visibility for south-bound vehicles.
There is no formal on or offstreet parking is provided in Butler Avenue, but the road is utilised for on-street parking.

Existing day care centres

The population of the Town of Claremont is approximately 10,054. Approximately 400 children are under the age of five: Exhibit 4, pages 1442 1453.
The following eight day care centres are within the Town (inclusive of centres providing before and after school care) and, collectively, provide 288 places:
(a)Jellybean's Childcare Swanbourne (also known as Sparrow Early Learning): 54 places
(b)Scotch College: 25 places (before and after school care only)
(c)Christchurch Grammar School Early Learning Centre: 29 places (before and after school care only)
(d)Bright Beginnings Claremont (also known as Claremont Community Kindergarten): 30 places
(e)Methodist Ladies College: 56 places
(f)2 Graylands Road (approved in December 2018, opening March 2021): 84 places
(g)Lifebuds Family Day Care: five places
(h)Tiff's House Family Day Care: five places

Normal vacancy rates of the centres were unable to be determined due to impacts arising from the COVID-19 pandemic.
The scale of day care centres within the Town varies considerably, from family day care centres (which are in the order of up to five places) to the new 2 Graylands Road facility (under construction) which will accommodate 84 places.
If consideration were taken of a broader area, including the City of Nedlands and Town of Cottesloe, then the following additional day care centres are available:
(a)Tiny Bees Claremont: 46 places
(b)Kidz Galore Nedlands: 40 places
(c)Gowrie Early Learning Nedlands: 105 places
(d)UWA Early Learning: 100 places
(e)Unicare: 122 places
(f)Dalkeith Early Learning Centre: 42 places
(g)Sparrow Early Learning Nedlands (also known as Nido Nedlands): 62 places
(h)Ali's Magic Carpet Nedlands: 15 places
(i)Kidz Biz on Monash Nedlands: 65 places
(j)Children's Hospital Childcare Centre: 82 places
(k)The Sunny Child Swanbourne: 47 places
(l)Cottesloe Kindy on Marmion Street: 34 places
(m)Smart Start Montessori: 20 places (Exhibit 4, pages 14061441).

The Proposed Development

The Proposed Development:
(a)is to accommodate a maximum of 90 children and 18 staff and operate Monday to Friday from 7am to 6pm;
(b)has a ground level area of 324m², consisting of two activity rooms and sleep rooms, staff room and associated facilities including kitchen, storerooms, reception, office, entry foyer, bin store, laundry, toilet and drying court area;
(c)has a second storey area of 291m², consisting of three activity rooms, storerooms and associated toilet and bathroom areas;
(d)includes ground level outdoor play areas comprising 462m² (covered and uncovered);
(e)includes a second storey covered outdoor play area comprising 168m²;
(f)proposes nine dedicated visitor car parking bays (four in tandem formation), one ACROD bay and 17 staff bays (eight dedicated in tandem formation) located at the north-east portion of the Land;
(g)includes a 2 metre high masonry fence along the entire eastern boundary of the Land and for that part of its southern boundary abutting the outdoor play area; and
(h)proposes a full movement vehicle access point on Butler Avenue.
The Proposed Development proposes separate activity areas for different age groups with the following maximum accommodation numbers:
(a)Activity Area 1: 15 children aged between 2-3 years;
(b)Activity Area 2: 15 children aged between 0-2 years;
(c)Activity Area 3 (upstairs): 20 children aged between 35 years;
(d)Activity Area 4 (upstairs): 20 children aged between 35 years;
(e)Activity Area 5 (upstairs) 20 children aged between 35 years.
The ground level outdoor play area directly abuts Lot 37 (160B) Alfred Road and 4 Butler Avenue.
The setback to the southern and eastern abutting residential properties is 6 metres from both ground level and the second storey.
The northern setbacks to Alfred Road range between 14 18.4 metres on the ground level and 14 metres on the second storey.
The western setbacks to Butler Avenue range between 18 – 21 metres on the ground level, and 14 metres on the second storey.

Applicable Planning Framework

LPS 3

The Land is zoned 'Urban' under the Metropolitan Region Scheme and Residential R20 under LPS 3.
The proposed use is categorised as a 'Day Care Centre' under LPS 3 and is identified as a 'SA' use in the Residential zone in Table 1 - Land Use Table.
Clause 14(3)(d) of LPS 3 relevantly provides that the use class 'SA':
means that the land shall not be used for the purpose indicated but that in exceptional cases the Council may specially approve of such use where:
(i)The applicant has given notice of the development proposed to be carried out by:
(1)Advertising particulars thereof in a newspaper circulating in the area in which the land is located at least once after the land use application has been lodged with the Council;
(2)Placing a notice or notices specifying particulars of the proposed development and the purpose for which the land is to be used in a prominent position or positions on the land so that the same are visible and readable from every street to which the land has frontage;
…
(vii)the Council has considered all submissions made with respect to the proposed use and is satisfied that use, the activities to be carried on which are connected with or incidental to that use and any building to be erected on the land will not have any adverse or detrimental effect on the residents or of the amenity of or the properties in the locality [.]
The relevant objectives of the Residential zone, as set out in cl 46 of LPS 3, are:
(1) the retention of the Zone as an area of largely residential character with only limited non-residential exceptions;
(2)the confinement of non-residential uses to those providing:
(a)amenities to the residential area in which the use is to be established; or
(b)services to that area which uses are compatible in scale, appearance and operation with residential uses:
(3)the continuation of the domestic scale and architectural character of the area of the proposed development;
(4)the preservation of the traditional housing character of the Zone;
…
Clause 36(6) of LPS 3 provides as follows:
The provision or use of:
(a)A car parking area (whether a garage, carport or dedicated uncovered area) at the front of a property; and
(b)Any crossover from the primary street,
will not be permitted where a practical alternative vehicle access point exists (such as from a secondary street, rear laneway or similar). This prohibition will apply notwithstanding a proposed development involves the use of a pre-existing crossover from the primary street, except where the proposed development:
(a)Is considered by the Council to be a renovation of an existing dwelling which retains the pre-existing car parking area without facilitating additional car parking, and provided the requirement to remove the crossover and provide an alternative car parking area is considered by the Council to be unreasonable; or
(b)Involves only the upgrading of an existing car parking area, provided that the proposed upgrading does not facilitate any additional car parking.
To facilitate the use of rear laneways or similar practical alternative access points, the Council may consider approving a reduced front setback for the dwelling where private open space to the rear would be significantly compromised by the requirements of this clause, having regard to the applicable design principles of the Residential Design Codes.
Clause 37A of LPS 3 deals with non-residential development abutting a residential zone and provides as follows:
(1)Notwithstanding the provision of Table 2 - Development Table, where an application is received for a development that is for a use other than a 'Dwelling Self-Contained' and the land the subject of that application abuts land that has a zoning or use of 'Residential', Council shall not approve of that development unless:
(a)The following building set-backs from the Residential zoned land are provided:
(i)six (6) metres for the ground floor and first floor with all other floors being set back six (6) metres for each additional storey;
(ii)notwithstanding (i) above Council may accept the ground floor being constructed up to the boundary of the Residential zoned land providing the wall on the boundary does not at any point exceed a height of two (2) metres above natural ground level (measured at the common boundary) of the adjacent residential land.
(b)No part of a balcony faces the Residential zoned land and any windows on that elevation are fixed sash obscure glazed to a height of 1.8 metres above the floor level of the storey that the window services.
(c)No vehicular access (other than a vehicle access where the vehicle enters the building in a forward gear) be provided within five (5) metres of the Residential zoned land and where any vehicle is required to either enter or exit the site in a reverse gear, that set back shall be increased to ten (10) metres minimum.
(d)Where the maximum dimension of any open car parking area exceeds ten (10) metres in length or width, one (1) tree for every three (3) car parking bays shall be provided within the car parking areas for the purpose of shade and visual relief and those trees shall be included as additional to that required in Clause 31(5) - Car Parking Spaces and planted in accordance with Clause 31(7) - Car Parking Spaces.
(2)Council may require that a masonry wall with a minimum height of two (2) metres above natural ground level be constructed along any boundary with Residential zoned land.
(3)Where the building is setback from the rear boundary, a buffer zone is to be created by the planting of a belt of trees to prevent visual contact between the development and residential areas. The species of trees and landscaping area are to be such as to enhance the visual perspective, amenity and value of the development and are to be approved by the Chief Executive Office of the Town or their delegate.
Also relevant is cl 29 of the LPS 3 (read with cl 28(2)), which specifies that the development requirements applicable to a Day Care Centre in the residential zone (as an unlisted use class in Table 2) are those which apply to the predominant use class in the residential zone a 'dwelling (self-contained)' unless determined to be inappropriate to the Proposed Development. In such a case, cl 28(2) provides that the development requirements are to be determined by reference to:
(a)the nature of the use proposed to be made of the land;
(b)the purposes for which land in the locality may be used in accordance with the Scheme;
(c)the use being made of land in the locality;
(d)the preservation of the amenity of the locality and the prevention of any adverse or detrimental affect which the use might have on the residents of, or the properties in the locality.

The Deemed Provisions

The following provisions of cl 67(2) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (Deemed Provisions) arise for consideration:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning;
...
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting, including -
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
…
(n)the amenity of the locality including the following:
…
(i)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of -
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;

Planning Bulletin 72 – Child Care Centres

The Western Australian Planning Commission (WAPC) prepared Planning Bulletin 72 - Child Care Centres (PB 72) in 2009. PB 72 aims to differentiate between different forms of child care, to outline a consistent approach to planning for child care centres and to set out the planning considerations in relation to the location and development of child care centres.
PB 72 notes that more parents are working and that, as a result, the availability of child care centres in close proximity is important. PB 72 also notes that child care centres are becoming larger and that, as a result, there may be an oversupply in some areas, especially areas more removed from the CBD.
PB 72 reiterates that child care centres provide a much needed community function even though they are operated as commercial ventures. PB 72 notes that child care centres are, broadly speaking, located in residential areas.
PB 72 notes that child care centres are non-residential land uses providing an education and community support function mainly in residential and employment areas.
PB 72 notes that noise and traffic issues may influence the appropriate location of a child care centre.

Local Planning Policy 206 - Child Care Centres

Local Planning Policy 206 – Child Care Centres (LPP 206) was initiated by the Town (the Council) on 7 May 2019 and advertised. The background to the minutes of 7 May 2019 provided as follows:
It has been identified that Council does not have effective development controls to equip itself with the consideration of applications for Development Approval for Child Day Care Centres. particularly when proposed in Residential zones away from commercial areas, where the impacts on local residential amenity may be significant. Effectively the only controls under LPS3 include those relating to access to parking areas under cl.36(6) and setback, fencing, landscaping and access location under cl.37A for Non-Residential Development Adjoining a Residential Zone.
In recent years all applications for Child Day Care Centres have been considered within areas close to or within commercial zones, where the impact on local residents has been minimised.
The WAPC has prepared draft guidelines for Child Care Centres in Planning Bulletin 72/2009 Child Care Centres, which propose a consistent policy approach to planning for Child Care Centres and identifies planning considerations in relation to the location and development of these centres. The Planning Bulletin provides a guide to Local Government in the preparation of Scheme and LPP provisions on Child Care Centres, and forms the basis of the proposals contained in Draft LPP 206.
The Planning Bulletin indicates that with the growing population and changing socioeconomic conditions resulting in pressure for both parents to work, there is increased pressure for child care centres to be located in close proximity to workplaces. The rising demand for child care services is resulting in these businesses becoming larger and servicing a greater catchment area, resulting in potentially greater impacts on the local area.
Four submissions were received, including an extensive submission from a planning consultant on behalf of the landowners of the Land. That submission was critical of the locational and access requirements of the advertised LPP 206. Only minor modifications to the advertised LPP 206 were made in response to the four submissions: Exhibit 4, pages 13681384.
LPP 206 was adopted by Council on 18 June 2019 and applies to all development proposals for child care centres, including the Proposed Development. The stated purpose of LPP 206 is to guide decisionmakers on:
… requirements relating to the location, site characteristics, environmental suitability, design, traffic, access, noise and health impacts and safety issues relating to and when considering applications for Development Approval for Child Care Centres[.]
LPP 206 is a policy to which due regard is to be had pursuant to cl 3(5) and cl 67(2)(g) of Sch 2 of the Deemed Provisions which form part of LPS 3. We will return to discuss LPP 206 later in these reasons at [354].
The objectives of LPP 206 are to:
•Provide guidance on the appropriate location of Child Care Centres in the Town relative to their surrounding area;
•Minimise the impact of Child Care Centres on the surrounding locality, in particular the amenity of existing residential areas;
•Minimise the impact of the surrounding area has on the Child Care Centre, and
•Consider the health and safety of children attending the centre.
Locational requirements for Child Care Centres include:
Child Care Centres are to be located where they:
•Provide a strategic distribution of centres for the community it serves;
•are close to or part of appropriate commercial, recreation or community nodes and education facilities. Preferred locations are on lots zoned 'Local Centre', 'Town Centre', 'Highway', or 'Educational', or on 'Residential' lots immediately adjacent to these zones, subject to compliance with the LPS 3 provisions;
•Are in areas where adjoining land uses are compatible with Child Care Centres, serviced by public transport , considered suitable from a traffic engineering/safety point of view; and
•Are of sufficient size and dimension to accommodate the development without impacting on the amenity of the surrounding area.
Child Care Centres are not to be located:
…
•Where access is from major roads or in close proximity to a major intersection where there may be safety concerns or where access is from a local access street which may result in traffic, parking or associated amenity concerns in the street.
…
Site requirements are that child care centres:
[S]hould be of sufficient size, shape and dimension to accommodate the development (inclusive of buildings with required setbacks, parking, outdoor play areas and landscape buffer strips ...)[.]
There are further relevant development 'requirements' in addition to the specific requirements of cl 36(6) and cl 37A of LPS 3:
•Visual appearance of developments should reflect the character of the area, enhance its amenity …
•Parking areas are to be located at the front of the building …
•Parking for staff and children is to be at a rate of one space per five children. Where located in areas or with access from streets with limited capacity to accommodate overflow parking on-site parking should be increased at a rate of 0.5 bays per staff member.
•Outdoor play areas to be in a safe location away from high traffic areas and also away from any adjoining noise sensitive premises such as dwellings and nursing homes.
•Landscaping and masonry fencing is to be provided along all adjoining residential property boundaries to reduce potential amenity and visual impacts on adjoining residents. Landscaping shall ... be provided along street frontages with a minimum width of 2 metres compatible with adjoining residential properties and at a height which does not result in an access/visibility hazard at the access crossover.
•A traffic impact statement shall be provided with all applications which addresses the site and its location, the expected trip generation, parking requirements ... existing and future traffic conditions, current road safety conditions ... and the expected impact on existing and future·traffic conditions.
•No access to be permitted direct from a ... or short Access Road such as a cul-de-sac or no through road;
•A noise impact assessment shall be provided with all applications which address the prime objectives of limiting the impact of Child Care Centres on adjacent residential properties and also limit the impact of external noise sources on the Child Care Centre;
…
•Where located adjacent to noise sensitive uses, all noise generating activities such as outdoor and indoor play areas ... are to be located away from the noise sensitive use. Where located adjacent to noise sensitive areas amenity impacts are to be mitigated by appropriate fencing, non-openable and double glazing (or equivalent) windows together with landscaping.
…
•In order to assess the impact to the local community that a proposed Child Care Centre has on the level of service of similar or approved facilities, applications are to include information on the level of existing (or proposed) services in the locality ... population catchments for the proposed centre …
Approvals should only be issued where it can be demonstrated that the Child Care Centre will have minimal impact on the functionality and amenity of an area and will not create or exacerbate any unsafe conditions for children or families using the centre, or for pedestrians, cyclists or road users[.]

LPP 206 sets out that parking for staff and children is to be at a rate of one space per five children. Where located in areas with limited capacity for overflow parking, on-site parking should be increased at a rate of 0.5 bays per staff member.
As stated, the Proposed Development provides for 27 bays.

Applicable principles of interpretation

LPS 3 is a local planning scheme continued pursuant to s 68(1)(a) of the Planning and Development Act 2005 (WA) (PD Act). LPS 3 is also a 'written law' for the purposes of s 5 of the Interpretation Act 1984 (WA) (Interpretation Act). LPS 3 is to be read and applied in accordance with the orthodox canons of construction.
As a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel: Sanders v City of South Perth [2019] WASC 226 at [98] - [99]. As a result, planning schemes should be construed broadly and sensibly, not pedantically: Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing).
In accordance with the orthodox principles of construction, LPS 3 is to be read as a whole: City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 at [48] (Murphy JA, Mazza JA and Edelman J) (Lamont); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] (Brennan CJ, McHugh J, Gummow J, Kirby J and Hayne J) (Project Blue Sky).
LPS 3, like all local planning schemes in Western Australia, includes the Deemed Provisions. The Deemed Provisions are contained in Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (LPS Regulations). The Deemed Provisions apply perforce of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations).

Site view and locality

As stated, at the commencement of the final hearing the Tribunal viewed the Land and its immediate context. The Tribunal, together with the parties, walked the length of Butler Avenue. The intersection between Alfred Road and Butler Avenue was also viewed, including the approaches from both east and west.
In our view, the relevant 'locality' for the purposes of the question of amenity under cl 67(2) of the Deemed Provisions corresponds with the land that was observed during the site view at the commencement of the final hearing.

Oral evidence

In this proceeding we had evidence from 15 witnesses. In terms of expert evidence we heard from:
(a)Tim Reynolds (applicant) and Marti Warpenius (respondent) on noise issues;
(b)Benham Bordbar, Darren Levey and Donald Veal (applicant) and Darryl Paterson and Marty Symmons (respondent) on traffic and road safety;
(c)Chris Abery (applicant) on questions of need and demand. Mr Abery was not required to give oral evidence; and
(d)Nathan Stewart (applicant) and Joe Algeri (respondent) on planning issues.
Evidence was also provided by the following witnesses:
(a)Bob Hindle (who will operate the Proposed Development); and
(b)Zane Randell, John Adcock, Julien Flack and Jane Muirsmith (who each reside near the Land).

Noise as a planning issue

Before we address Issue 1, it is first necessary for us to reiterate the principles that apply to a noise assessment for the purposes of assessing a proposed development under LPS 3.
Noise is a central issue in this proceeding. In this regard, we heard from two qualified and experienced acoustic experts which we will come to shortly. Aside from the evidence from the experts, there was a contest between the parties as to the nature of the noise arising from the Proposed Development.
This is because the applicant submits that the noise emitted from the Proposed Development would be 'community noise' for the purpose of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).
Before we address that question, it is important that we set out the relevant principles relating to noise.
The Tribunal has discussed the question of noise, in the context of a planning assessment, in Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76 at [57] - [68] and, more recently, in Cann and Shire of Augusta-Margaret River [2021] WASAT 22 at [51] - [56].
The Noise Regulations constitute the regulatory regime for the control and management of noise in Western Australia. That regulatory regime was recently discussed by the Court of Appeal in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; at [35] - [49] (Murphy JA, Mitchell JA and Beech JA) (Ammon).
The Noise Regulations set out the maximum permissible noise levels for land uses based on levels, frequency and matters such as impulsiveness and tonality. As was explained by the Court of Appeal in Ammon (at [35]):
In broad overview, the [Environmental Protection Act] creates various offences which may be committed by the emission of noise from premises in excess of a standard prescribed by regulations. The [Noise Regulations] do not themselves create an offence, but rather operate to define the circumstances when an offence may be committed under the Act. The [Noise Regulations] exclude certain kinds of noise emission from the standards they prescribe, and provide for the Minister to approve the emission of noise above the prescribed levels where the premises cannot reasonably or practicably comply with the prescribed standard.
As is plain from the Court of Appeal's analysis, the Noise Regulations arise under the Environmental Protection Act 1986 (WA). They are not an instrument created under, or for the purposes of, the PD Act.
In a planning sense, as a general proposition, land uses that will cause noise impacts on adjoining properties which exceed the maximum noise permitted by the Noise Regulations are not considered to be acceptable in the context of development control: GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; 151 LGERA 74 at [61] (GMF).
In GMF the Tribunal set out that compliance with the Noise Regulations is a 'necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality': at [61].
That is, even where a land use complies with the Noise Regulations, it does not automatically follow that the noise does not constitute an adverse impact on the amenity of the locality in a planning sense: Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39] (Land Alliance).
An analysis of the reasonableness, or otherwise, of noise for the purposes of a planning assessment, will very much depend on the land use in question, the noise emitted and the planning context of the land. This planning analysis overlaps with and is informed by, but is ultimately separate from, the question as to whether a noise exceeds the maximum permissible levels contained in the Noise Regulations.
Having regard to the case put by the applicant, it is necessary for us to stress that the two inquiries are separate and should not be conflated. The reasonable expectations of residents, in terms of amenity, will inform the question of whether noise is an issue in a planning context. For example, in general terms, residents who live adjacent to commercial or industrial zoned land cannot expect the same amenity, in terms of noise from adjacent land uses, as those who live in a residential hinterland: Warr and Town of Cambridge [2019] WASAT 27; (2019) 97 SR (WA) 27 at [60] (Warr); St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [57] (St Patrick's).
However, bare compliance with the Noise Regulations does not mean that noise cannot still be an issue in a planning sense. In Del Giacco and City of Melville [2008] WASAT 134 the Tribunal refused a proposed storage yard adjacent to a residential area even though the proposal complied with the Noise Regulations: at [38]. Noise associated with traffic arising from a proposed place of worship was an issue in Association of Islamic Dakwah in Western Australia and City of Gosnells [2011] WASAT 80 at [50] - [59].
Having set out those initial comments on noise, we turn now to address the question of land use classification.

Issue 1 – land use classification

As we will come to explain, the question of the classification of the Proposed Development is not really a central issue in these proceedings nor is it substantially in contest.
This is because both parties agree that the Proposed Development is properly classified as a 'Day Care Centre' for the purposes of LPS 3. Pursuant to cl 10 of LPS 3 a 'Day Care Centre' is defined as follows:
'Day Care Centre' has the same meaning as is given to that term in the Child Welfare (Care Centres) Regulations 1968 as amended or reenacted from time to time and includes a facility providing similar services for adults[.]
The real contest between the parties is whether a 'Day Care Centre' emits 'community noise' for the purposes of the Noise Regulations.

The question of 'community noise'

In this proceeding the applicant made submissions as to whether the Proposed Development was 'community noise' for the purposes of the Noise Regulations.
Ultimately, this is not an issue we need to determine in any substantive sense because we are not administering the Noise Regulations. Our jurisdiction does not extend to the Noise Regulations: The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 (Pullin JA, Newnes JA and Murphy JA). However, in fairness to the parties we will set out the various arguments.

Applicant's submissions

In terms of the applicant's case, the starting point is that the land use 'Day Care Centre' is defined in LPS 3 to have 'the same meaning given to that term in the Child Welfare (Care Centres) Regulations 1968 (WA) (CW Regulations) as amended or re-enacted': cl 10 of LPS 3.
The CW Regulations, which were made pursuant to the Child Welfare Act 1947 (WA), were Gazetted on 15 July 1968. Regulation 2 provided that a 'day care centre' means:
'a child minding centre that is not a family care centre or an occasional care centre'.
Mr Hotchkin's submissions were as follows:
1.Although it appears to be accepted by the Respondent that the proposed use is a 'Day Care Centre' as defined in LPS3, it is necessary to explain what that means in the context of LPS3 and in considering the amenity issues in this matter.
2.'Day Care Centre' is defined as having 'the same meaning as is given to that term in the Child Welfare (Care Centres) Regulations 1968 as amended or re-enacted from time to time and includes a facility providing similar services for adults' (page 1253). Those Regulations were repealed a number of years ago. However, as the definition contemplates, that use class has been 're-enacted' in subsequent legislation, which is currently captured by two primary pieces of legislation in Western Australia: the Education and Care Services National Law (WA) Act 2012 and its Regulations (respectively the ECS Act and the ECS Regulations), and the Child Care Services Act 2007 and its Regulations.
3.The explanatory memoranda for the ECS Act explains that, in December 2009, the Council of Australian Governments endorsed the 'National Partnership Agreement on the National Policy Agenda for Early Childhood Education and Care'. Early childhood education is a well-known branch of education theory that relates to the teaching of children (formally and informally) from birth up to the age of 8 (reference: Wikipedia).
4.Under that legislative framework, a 'day care centre' as defined in LPS3 may be either premises which provide an 'education and care service' under the ECS Act or the provision of similar services on an ad hoc or casual basis, a mobile service provider of those services or one which provides services under the auspices of the Department of Education and Training of the Commonwealth, which are regulated under the Child Care Services Act 2007 (see section 4(b) of the Child Care Services Act 2007 and Regulation 6(2) of the Child Care Services (Child Care) Regulations 2006).
5.The provision of early childhood education to young children is a key express objective of the ECS Act, clause 3(2)(b) of the Schedule to which provides that 'the objectives of the National Education and Care Services Quality framework are … to improve the educational and development outcomes for children attending education and care services'. As addressed further below, one can see that objective finding practical expression in many aspects of the ECS Act and the ECS Regulations.
6.The description of the early childhood education which takes place in a 'day care centre' may also reflect what is contemplated by the defined use class of 'educational establishment', which lists a number of types of institutions and includes 'other educational centre'. Clause 14(4) of LPS3, however, provides that where such a generic term directed to the purpose of a 'centre' may encompass a more particular use class (such as 'Day Care Centre'), the general class is deemed to exclude the particular use. Therefore, although a 'Day Care Centre' is an 'Educational Centre', because of its provision of early childhood education, the more particular use class of 'Day Care Centre' is the proper use class for this matter.
7.That distinction matters for the application of clause 18 of LPS3, but not for the operation of clause 14(3) (because both use carry an 'SA' designation of use permissibility), which requires examination of the proper construction (and application) of clause 14(3)(d)(vii).
The gravamen of that submission is that CW Regulations have been repealed and, in short summary, a child care centre is now to be properly regarded as 'educational'. This is so having regard to the governing regime for such centres is now established by the Education and Care Services National Law (WA) Act 2012 (WA) (ECS Act), the Education and Care Services Regulations 2012 (WA), the Child Care Services Act 2007 (WA) (CCS Act) and the Child Care Services (Child Care) Regulations 2006 (WA) (CCS Regulations) (together the Education and Child Care Instruments).
As a consequence, the applicant submits that the noise associated with a child care centre is to be regarded as 'community noise' for the purposes of the Noise Regulations.
Item 4 of Sch 2 to the Noise Regulations provides that 'noise emitted as a consequence of … [an] educational activity from premises occupied for educational purposes …' is community noise.
Regulation 7 of the Noise Regulations provides, in general terms, that noise emitted from any premises 'must not cause, or significantly contribute to, a level of noise which exceeds the assigned level in respect of noise received at premises of that kind'. However, reg 16(3) of the Noise Regulations provides that reg 7 does not apply to community noise.
The overarching effect of that, if the applicant's submissions are accepted, is that the Proposed Development will emit community noise and as such does not need to comply with the assigned noise levels established by reg 8 of the Noise Regulations.

Respondent's submissions

In brief overview, the respondent does not agree that the Education and Child Care Instruments are, in any meaningful way, to be regarded as a 'reenactment' of the Education and Child Care Instruments. The respondent submits that care needs to be taken in considering the question of what is properly a 're-enactment'.
This is especially so given that s 16 of the Interpretation Act does not, unlike Interpretation Acts from other jurisdictions, include the words 'with or without modification'.
The respondent submits that whether legislation constitutes a 'reenactment' of a former Act is a question of substance rather than form: Day v Adam; ex parteDay [1989] 2 Qd R 9 (Thomas J) (Day v Adam). Legislation which establishes 'a completely new statutory scheme and approach' to a subject will not be a 're-enactment': Day v Adam at [11].
The respondent submits that 'a re-enactment of the definition of 'day care centre' requires a close analysis to determine whether any purported reenactments are functionally the same': (Respondent's Closing Submissions at 161).
The respondent submits the Education and Child Care Instruments are not, in any sense, a 'reenactment' of the CW Regulations but are aspects of a completely new statutory scheme creating a national approach to early childhood education and care. Accordingly, the Education and Child Care Instruments cannot be relied upon to inform the definition of 'day care centre' under LPS 3.

Issue 1 - consideration

In our view, the question of the classification of the Proposed Development has taken on a significance it does not have in the context of this case.
This is because both parties agree that the Proposed Development is a 'Day Care Centre' for the purposes of LPS 3. The debate is actually whether the classification of the Proposed Development is drawn from the Education and Child Care Instruments. If that be so, the applicant then submits that the Proposed Development must emit 'community noise' for the purposes of the Noise Regulations.
Because of the decision we have reached, it is not ultimately necessary for us to reach a concluded view on which definition of 'Day Care Centre' should apply.
The applicant's broad argument that day care regulation has taken on an educational aspect has merit, and is perhaps even forceful. However, the applicant's submissions do not include any detailed analysis, as to where the Proposed Development sits in the context of the Education and Child Care Instruments, in terms of how a child care centre might actually be defined.
The applicant's submissions in this regard were that:
'[The Proposed Development] may be either premises which provide an 'education and care service' under the [ESC Act] or the provision of similar services or an ad hoc or casual basis, a mobile service provider of those services or which provides services under the auspices of the Department of Education and Training of the Commonwealth, which are regulated under the [CCS Act] (see s 4(b)) of the [CCS Act] and reg 6(2) of the CCS Regulations.
We accept that pursuant to PB 72 that a child care centre can be said to have an educational component. However, for the purposes of classification, we are not dealing with PB 72. We are dealing with how the term 'Day Care Centre' is defined in LPS 3. That definition is plainly drawn from some time ago. The last amendment to the 'Day Care Centre' use class in LPS 3 appears to be Amendment 47 which was Gazetted on 27 November 1996, prior to the consolidation of LPS 3 on 1 June 1999.
As can be seen, the applicant submits the Proposed Development could be classified in a number of ways under the Education and Child Care Instruments. However, the applicant takes this analysis no further.
The absence of further analysis by the applicant confirms our view that the contest between the parties is not about the classification of the Proposed Development. Rather, the debate is whether the Proposed Development emits community noise.
For the following three reasons, we do not accept the applicant's submissions on the question of classification such that the Proposed Development must be taken to emit community noise under the Noise Regulations.
Firstly, in our view, even if we accepted that there was an educational component associated with the Proposed Development, we are not satisfied that the entirety of the Proposed Development would be used for education purposes.

This is so because the Proposed Development includes up to 30 children between the ages of zero and two and between two and three years of age. While some of the older children may be the subject of some education and learning, including social learning, there is no evidence to suggest that is the case for all children at the Proposed Development, especially the very young children between zero and three years old. This is confirmed by the evidence of Robert Hindle which we discuss later in these reasons at [143] - [144].
Therefore, even if we accepted that some of the noise may be 'community noise' for the purposes of the Noise Regulations, there would, on the evidence before us, still be noise from the Proposed Development that must comply with the assigned levels. In this sense the argument is somewhat moot. In this regard, we also note that Mr Reynolds' view is that regardless of whether the emitted noise is community noise, compliance with the noise levels set out in the Noise Regulations should still be achieved: Exhibit 23, page 6. This only reinforces the academic nature of the debate around this point.
Secondly, we generally accept the respondent's submissions that the Education and Child Care Instruments do not constitute a 'reenactment' of the CW Regulations in any substantive sense.
We agree that for that to be the case there must be some semblance of the original, in the 're-enacted', legislation. This is a question of substance rather than form: cf Beamont v Yeomans (1934) 34 SR (NSW) 562 at 569 (Jordan CJ). Where a completely new statutory regime and approach is established, it cannot be said that there has been a re-enactment: Day v Adam at 173; see also R v Wright [2004] ACTSC 83; (2004) 149 A Crim R 298 (Higgins CJ).
In this instance, it would appear that the child welfare regime which established a 'Day Care Centre' for the purposes of the definition in LPS 3 has completely given away to a new national approach to child education and care. That is, there is no 'substantial identity of function' of the CW Regulations within the Education and Child Care Instruments: Albury City Council v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220, 222 (Priestly JA).
Thirdly, we agree with the respondent that the separate references to 'education' and 'child care premises' in Item 3 of Part C of Sch 1 to the Noise Regulations (Part C of Sch 1 outlines premises which are considered to be 'noise sensitive premises' for the purposes of the Noise Regulations) is a powerful textual indication that, for the purposes of the Noise Regulations, a child care centre is not used for education purposes.

Further discussion on noise in the context of a planning assessment

Aside from the reasons set out above, it is apparent that the applicant's submissions don't actually inform the substantive question that is before us. For the reasons we have explained, we are not making a decision under the Noise Regulations. In any event, we do not accept that the discretion we exercise under LPS 3 is anchored to a decision on whether the Proposed Development emits community noise for the purposes of the Noise Regulations.
While such a finding would not be irrelevant, the planning discretion on the question of amenity is a different question to characterisation of a noise emission under the Noise Regulations. As we have explained, the Tribunal has consistently held that compliance with the Noise Regulations is part of the assessment of the question of noise, but is not a complete answer to the question of whether noise is acceptable in a planning sense: Land Alliance at [39]; GMF at [61]; Del Giacco and City of Melville at [38]; Ursula Frayne at [66].
Even if we were satisfied that the Proposed Development emitted community noise such that compliance with the assigned levels in the Noise Regulations was not strictly required (for the purposes of environmental law), that does not mean the noise emitted must not still be regarded as reasonable, appropriate or acceptable in a planning sense.
In Rossetto & Co Pty Ltd v District Council of East Torrens (1984) 54 LGRA 390 (Rossetto), Matheson J made the following comments (at 401) regarding the Noise Control Act 1976-1977 (SA):
The Act is thus an Act to control excessive noise, and provides a penalty for breach of its provisions. I can understand the reference to it by the acoustical engineers, but I do not think it by any means follows that emission of noise that is not excessive pursuant to its provisions and to the said regulations has of necessity no effect on the amenity of a particular locality.
(emphasis in original)
Rossetto was cited with approval by the Tribunal in Land Alliance: at [37].
The fact that a noise emission does not breach the Noise Regulations does not, of itself, mean a noise emission is acceptable for the purposes of assessing amenity under LPS 3. If there was a legislative intent for the issue of noise in a planning sense to be completely answered by the question of compliance or otherwise with the Noise Regulations, it would have been very easy to do so in the context of cl 67(2) of the Deemed Provisions.
It therefore follows that the question of the classification of the Proposed Development is not actually in contest. Both parties submit that the Proposed Development is properly characterised as a 'Day Care Centre' for the purposes of LPS 3.
What is in contest is whether the Proposed Development falls within the terms of Item 4 of Sch 2 to the Noise Regulations on the issue of whether it would conduct 'educational activities'.
For the reasons we have expressed, we are not satisfied that the Proposed Development would emit community noise for the purposes of the Noise Regulations. Furthermore, even if the noise was community noise, that is not the end of the planning inquiry.

Issue 2 – whether the Proposed Development warrants approval in the exercise of discretion

The evidence of Mr Robert Hindle

Mr Hindle prepared two witness statements in these proceedings. He outlines his experiences in running and operating child care centres and notes that the majority of the centres are within, or opposite, residential dwellings. He has never received a complaint from either a local government or a neighbour.
In his supplementary statement, Mr Hindle outlines the activities that ordinarily take place at child care centres. He highlights that 'the early childhood education taught in our centres is geared towards children meeting developmental milestones to prepare them for integration into primary school': Exhibit 29 at para 13.
He further observes (at Exhibit 29 at para 14) that:
[F]or babies up to the age of 18 months, their developmental milestones are largely focused on attachment skills and developing their sense of identity. Whereas, the four to five year old children's developmental milestones consistent of learning through play, self-help skills, as well as basic numeracy, literacy and technology skills, in preparation for primary school.

The residents' evidence

The respondent also filed witness statements from four residents. All of these residents are concerned about the traffic and amenity impacts that will arise if the Proposed Development is approved. Mr Flack considers the Butler Avenue residential community to be 'strong and vibrant': Exhibit 19 at para 6.
Mr Randell lives in very close proximity to the Land. He refers to the lifestyle impacts that will affect his family if the Proposed Development is approved. He also refers to the quiet nature of Butler Avenue and the existing low levels of traffic: Exhibit 14 at para 13.
Mr Adcock lives on Alfred Road. Since 2002 Mr Adcock has worked from home. His evidence outlines his observations of traffic on Alfred Road in the vicinity of the Land. He also observes that, at present, there is 'not much time' to walk across Alfred Road due to the speed of vehicles: Exhibit 15 at para 20.
Ms Muirsmith lives on Butler Avenue. She outlines her view on the community spirit within Butler Avenue including 'a community funded trampoline' which sits on the front verge on which children from the street socialise. She describes Butler Avenue as 'a very special place': Exhibit 16 at para 7. She further sets out (at Exhibit 16 at para 7) that:
… Due to its peacefulness, tranquillity and small number of residents, it is akin to living in a small country town. The community know each other and look out for each other - particularly as there is a wide span of ages of residents in the street. It also have a very diverse array of culture and ethnic backgrounds.
Ms Muirsmith is concerned about the negative impacts of the Proposed Development on residents within Butler Avenue arising from 'introducing a large-scale commercial development on our street': Exhibit 16 at para 19.

Expert evidence - need and demand

Mr Chris Abery (a director from Deep End Services) gave evidence on behalf of the applicant on the questions of need and demand. Mr Abery is a qualified planner but also has qualifications in statistical analysis.
The general position is that a developer is under no obligation to demonstrate that a proposed land use is needed by the community: BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 at [116 117].
However, community need is not an irrelevant consideration in the exercise of planning discretion. It arises for consideration as an aspect of cl 67(2)(v) and cl 67(2)(x) of the Deemed Provisions. Furthermore, the question of need and demand (or put another way, the 'level of service' available) in the context of child care centres is even more nuanced.
This is because PB 72 speaks to issues of demand and notes, at least at the time of its drafting in 2009, that child care centres are more readily provided in outer suburban areas rather than in areas which are closer to the Perth central business district. The general thrust of PB 72 is that a proponent may be requested (at page 4 of PB 72):
to provide further information in regard to the level of existing services in the locality, proximity to other centres, population catchments for the new centre and the number of primary schools and kindergartens in the locality, in relation to the development of a new facility.

It is against this backdrop that Mr Abery's evidence falls for consideration. Mr Abery's evidence is that the Swanbourne area has favourable characteristics to support a higher than average provision of childcare places. This is because the population is growing and it is a very high income area with high levels of workforce participation: Exhibit 13 at para 95.
The Land would be accessible to a catchment area of 10,000 people that currently has a low provision of child care centres: Exhibit 13 at para 96. The distribution of existing (and proposed) child care centres is generally within 2-3 kilometres of the Land, to the east, south and west. There is also an apparent gap in the northern moiety of the Town which can also conveniently serve the southern areas of Mt Claremont: Exhibit 13 at para 96.
Mr Abery notes that the Land is located between two primary schools which are 900 metres apart. He considers that the Proposed Development will improve and expand the care and early learning services available in the locality, where children can then transition to the nearby primary schools: Exhibit 13 at para 97.
Mr Abery's conclusions include the following (Exhibit 13 at para 99):
There is a large and growing demand for child care places from the tightly-defined catchment area for the proposed centre. The proposed 90 places can be absorbed by the available demands while still leaving residual demand levels to support other centres nearby.

Mr Abery's evidence was not challenged by the respondent nor did the respondent call any evidence on the question of the level of service available in the locality. We accept Mr Abery's evidence that there is sufficient demand, even a community need, for the Proposed Development.

Expert evidence - noise

Both Mr Reynolds and Mr Warpenius are qualified and experienced acoustic experts.
In short summary, Mr Reynolds is of the view that with appropriate noise mitigation measures, the Proposed Development will comply with the Noise Regulations: Exhibit 8 at para 27.
For Mr Reynolds, in terms of noise mitigation, that would include (Exhibit 8 at para 28):
(a)elevated boundary walls (2.2 metres high) at the east and south boundary; and
(b)a 1.6 metre high balustrade to the first floor outdoor play area.
Mr Warpenius, on the other hand, is of the opinion that the noise emitted from the Proposed Development would likely exceed the assigned levels contained in the Noise Regulations and would result in a 'significant and severe' impact on the amenity of neighbours: Exhibit 20 at paras 90 - 94.
Mr Warpenius considers that to ensure the Proposed Development complies with the Noise Regulations, a 3.6 metre high noise barrier would be needed at the southern boundary. At the eastern boundary, the noise barrier would need to be between 3.6 metres and 5.8 metres high: Exhibit 20 at para 95.

Assumptions which informed the acoustic evidence

Some of the assumptions which underpinned the modelling undertaken by the acoustic consultants included:
(a)A maximum of 50 children will be outside at once (notwithstanding there will be up to 90 children attending the Proposed Development): ts 358, 21 October 2020.
(b)The children will be 'well behaved'. That is the model does not include children that are inter alia, upset, crying, singing, yelling and banging: (ts 338, 340, 21 October 2020). However, such noises are reflected in the overall L₁₀ measurement: ts 338, 21 October 2020.
(c)No staff are making noise outside. No staff are talking loudly at the children: ts 340, 21 October 2020.
(d)The outdoor area comprises only soft and absorbent surfaces. This is despite some evidence that bike paths and other hard surfaces will be provided: ts 379, 21 October 2020.
(e)The noise has been modelled with children being on the ground. Not elevated on play equipment: ts 380, 21 October 2020.
(f)There will be no noise generated from within the facility. The only noise generated will be from outside. The modelling assumes all windows and doors will be closed at all times.
(g)Acoustic walls at the eastern and southern boundaries would be provided up to 2 metres high, possibly with a splay.
Before we turn to address some of the modelling issues that were in contest between the acoustic experts, we note here that we do not regard the assumptions that underpin this modelling as conservative. In the context where the Proposed Development is to be located on residential land and in almost a purely residential locality, we would ordinarily expect a more conservative set of assumptions to have been established.
For example, the assumption that children won't be able to climb onto play equipment, and utilise swings, seems generous to the point of being unrealistic to us. Likewise, it is unlikely that children, especially young children, will always be well-behaved. Furthermore, while we accept that the more elevated noise from yelling and banging may be reflected in the L₁₀ measurement, the model fails if such noise continues for more than 10% of the time: ts 340, 21 October 2020.

Noise Regulations

The relevant assigned noise levels for these premises are as follows:

Premises Receiving Noise	Time of Day	Assigned Level (dB)
Premises Receiving Noise	Time of Day	LA 10	LA 1	LA max
Noise sensitive premises : Highly sensitive area	0700 - 1900 hours Monday to Saturday	49	59	69
	0900 - 1900 hours Sunday and Public Holidays	44	54	69
	1900 - 2200 hours all days	44	54	59
	2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and Public Holidays	39	49	59

The following definitions are contained in reg 8 of the Noise Regulations.
L_A1 assigned level means an assigned level which, measured as an L_{A Slow} value, is not to be exceeded for more than 1% of the representative assessment period;
L_A10 assigned level means an assigned level which, measured as an L_{A Slow} value, is not to be exceeded for more than 10% of the representative assessment period;
L_{A max}assigned level means an assigned level which, measured as an L_{A Slow} value, is not to be exceeded at any time.
The following definition is contained in reg 2 of the Noise Regulations:
L_{A Slow} means the reading in decibels (dB) obtained using the 'A' frequency weighting characteristic and the 'S' time weighting characteristic, as specified in AS IEC 61672.1-2004 ElectroacousticsSound level meters Part 1: Specifications, for class 1 and class 2 meters, with sound measuring equipment that complies with the requirements of Schedule 4.

Differences in the acoustic modelling assumptions

Sound power level

The noise experts have adopted considerably different assumptions in terms of the sound power level of children playing. The 'sound power level' is, in reality, how noisy children are when outside and, in particular, when playing. The noise generated must then be managed in terms of how it impacts surrounding properties.
The experts disagreed about the level of noise that would be generated by 10 children playing. However, the experts agree that a 'worst case scenario' would be:
(a)20 children, 3 to 5 years playing in the southern play space;
(b)15 children, 2 to 3 years playing in the eastern play space; and
(c)15 children, 0 - 2 years, playing in the western play space.
Mr Warpenius considers that the sound power level of the children playing in this scenario would be 93 dB(A). Mr Reynolds considers that the sound power level would be 90 dB(A). This difference of opinion could result in forecast variations of 4 to 5 dB at 160B Alfred Road and 3 to 5 dB at 4 Butler Avenue.
Leaving aside the worst case scenario, Mr Reynolds considers that the sound power level for 10 children will be 83 dB(A). Mr Reynolds has relied on the same sound power level of 83 dB(A) for over 15 years: Exhibit 23, page 15.
Mr Warpenius does not agree with Mr Reynolds that the sound power level for 10 children will be 83 dB(A). Mr Warpenius produced the following table which is drawn from data published by the Association of Australasian Acoustical Consultants (AAAC Guidelines).

Table 2 – LA10 Sound Power Levels – children outside

Group of children

Sound Power Level (dB)

Reverberate

Sound Power Level (dB)

AAAC

10 children (3-5 yo) 88 84 - 90

10 children (2-3 yo) 86 83 - 87

10 children (0-2 yo) 80 77 - 80

In short, Mr Warpenius considers that 83 dB(A) would be regarded as 'quiet' and that it would routinely be exceeded. As stated, Mr Warpenius data suggests the sound power level will routinely be closer to 90 dB(A). That difference in noise level is significant.
Mr Warpenius is of the view that, given the nature of the noise source - being young children - it is appropriate to consider and measure the 'louder noises generated by children in playgrounds': Exhibit 23, page 13.
Both Mr Reynolds and Mr Warpenius have been involved in countless assessments of the noise impacts arising from child care centres.
As stated, Mr Reynolds has relied on his assumption of 83 dB(A) for over 15 years. His assumptions predate the AAAC Guidelines which were first released in 2008.
Mr Warpenius has been assessing child care centres for 30 years and relies on the data outlined in the AAAC Guidelines which was, as outlined, introduced in 2008 and updated in 2013.
Once adjusted to the L_A10measurement, Mr Warpenius modelling is consistent with, albeit slightly lower than, the AAAC Guidelines.
While we are not in any way critical of Mr Reynolds, on the question of sound power level, we prefer the evidence of Mr Warpenius. His approach is consistent with the independent guidelines prepared by acoustic consultants across Australia and New Zealand.

We therefore share Mr Algeri's view that the Proposed Development is potentially going to make a bad situation worse by intensifying the use of the intersection, especially during peak periods. We do not accept Mr Stewart's opinion that the Proposed Development will cause only minor traffic issues. In our view, the likely traffic impacts arising from the Proposed Development are not minor, but are likely to be substantial.

Visual amenity of the parking hardstand

Mr Stewart considers that visual impacts of the hardstand area 'is an acceptable outcome that will not impact on the streetscape and amenity of the locality': Exhibit 9 at para 75. He notes that driveways are typically brick paved in this locality.
Mr Stewart notes that other properties on Alfred Road have substantial hard stand areas. He further notes there is a property which contains a tennis court on Butler Avenue.
Mr Algeri commends the proposed use of brick paving as it has a 'residential aesthetic as opposed to commercial developments that are more likely to have an asphalt surface': Exhibit 9 at para 86. However, Mr Algeri is concerned about the scale and extent of the proposed hardstand area. Mr Algeri calculates that hard stand area to be 840m² which equates to 45% of the area of the Land.
Mr Algeri considers the scale of the hardstand area 'is not in keeping with the character of surrounding development and will be unsightly on a prominent corner site': Exhibit 21 at para 87.
We agree with Mr Algeri. The scale of the hardstand to accommodate the parking arrangements necessary for the Proposed Development is incompatible with its planning context. That planning context is largely suburban. The inclusion of 840m² of brick paving on the Land would be alien and unsympathetic in its context. The amount of brick paving proposed is almost four times the hardstand area of any other property referred to by Mr Stewart.
As an aspect of visual amenity, the applicant points to the rundown state of the existing dwelling on the Land. The applicant points to the fact a new development will be an improvement on the existing state of the Land. That submission may be accepted. However, the question for us is not whether the Proposed Development will be an improvement on the existing visual presentation of the Land. Rather, the question is for us is whether the Proposed Development is acceptable having regard to the impacts that will arise in its context having regard to the applicable planning framework.

Issue 2 - consideration

Before we set out our relevant findings on this issue, we turn first to a construction issue that was in contest between the parties. That issue is the effect of cl 14(3)(d) in the context of uses which are 'SA' for the purposes of LPS 3.

Clause 14(3)(d) of LPS 3

Under LPS 3, the nature of an 'SA' use is that the 'Council may specially approve' of such uses provided that the proposal in question has been advertised pursuant to cl 64 of the Deemed Provisions.
The contest between the parties appears to relate to cl 14(3)(d) and subclause (vii) and the requirement that a use may only be approved if it 'will not have any adverse or detrimental effect on the residents or of the amenity of or properties in the locality'.
The applicant submits that cl 14(3)(d)(vii) is inconsistent with cl 67(2) of the Deemed Provisions and therefore, by reason of s 257B of the PD Act, of no effect.
That submission cannot be accepted. There is no inconsistency between cl 67(2) and s 14(3)(d) of the LPS 3. If there is a relevant inconsistency it is between cl 67(2)(n) and cl 86(2)(e) of LPS 3, which provides that a relevant consideration for the Town in the exercise of discretion is 'the need to preserve the amenities of the locality'.
As was explained in Ursula Frayne, no relevant inconsistency arises where a particular provision sets out the amenity expectations for particular localities: at [50][56]. The Deemed Provisions do not mean that there cannot be general and specific considerations within local planning schemes; nor do the Deemed Provisions displace the requirement for a local planning scheme to be read as a whole: Project Blue Sky at [69]. Clause 14(3)(d) is a provision which sets out that, in the context of SA uses, there is a requirement for the proposal in question to not generate adverse planning impacts for the relevant locality.
Of course, cl 14(3)(d)(vii) of LPS 3 is a provision that has to be interpreted sensibly and consistent with its town planning purpose. It is not the case that any 'adverse or detrimental effect' must result in a proposal being refused in the exercise of discretion. Any adverse or detrimental impact must be such that it has tangible adverse or detrimental town planning consequences.
The applicant says that the test should be whether the impact is 'unacceptable' in planning terms. We do not disagree with this. This is because the word 'unacceptable' takes its meaning from the context in which it is used. In this instance, the meaning of cl 14(3)(d)(vii) is clear. Applied in its context it means that only minor amenity impacts may be tolerated. That is, if there is an adverse or detrimental amenity impact that is of tangible town planning consequences, then that impact is 'unacceptable' having regard to cl 14(3)(d)(vii).
We should also say, for the avoidance of doubt, that cl 14(3)(d)(vii) is not the provision on which this case turns. The combination of the amenity impacts arising from traffic, car parking, noise and the visual amenity considerations take the impact of the Proposed Development beyond the low tolerance level of amenity impacts that may arise from cl 14(3)(d)(vii) of LPS 3. Even without cl 14(3)(d)(vii) in LPS 3 we would have made the same decision.

The exercise of planning discretion

Pursuant to cl 67(2) of the Deemed Provisions, we are required to give 'due regard' to the relevant factors that inform the exercise of discretion. It is also the case that we are required to have 'due regard' to 'relevant planning considerations' including any State planning policy which may affect the subject matter of the application: s 241(1)(a) PD Act. The term 'relevant planning considerations' is plainly one of 'broad import': Zampatti v Western Australian Planning Commission [2010] WASCA 149, (2010) 176 LGERA 150 at [12] (Kenneth Martin J).
In the context of the PD Act, the term 'due regard' has been interpreted to mean that we must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 at [46] (Martino J).
It is also the case that in giving 'due regard', we are not required to give a consideration any particular, or minimum, weight. The task should be approached flexibly in the sense set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41].
It follows that regardless of our findings in relation to any particular factor that arises under cl 67(2) of the Deemed Provisions we have discussed in the reasons, there remains discretion to approve the Proposed Development.
Before we proceed further, we must first address LPP 206 which is a local planning policy and therefore a relevant consideration pursuant to cl 67(2)(g) of the Deemed Provisions. The weight to be given to LPP 206 was also an issue between the parties.

LPP 206

We have set out in detail the provisions of LPP 206 at [67] - [76]. LPP 206 includes a number of provisions which might provide some difficulty for the Proposed Development. For example, LPP 206 provides that child care centres should be 'close to or part of appropriate commercial, recreation or community nodes or education facilities'. Preferred locations include lots zoned 'Local Centre, Town Centre, Highway or Education or on Residential lots immediately adjacent to these zones'.
Furthermore, LPP 206 provides that child care centres are not be located 'where access is from major roads or in close proximity to a major intersection where there may be safety concerns or where access is from a local access street which may result in traffic, parking or associated amenity concerns in the street'.
The applicant asserts that LPP 206 is a 'reactive' policy in that it was a policy formulated by the Town in response to the lodgement of the Proposed Development.
We were taken through the relative history of events. It can fairly be surmised that having received the Proposed Development (in April 2019) the Town realised it had no policy framework in place. The Town then set about formulating a policy which became LPP 206 which was adopted in June 2019. The current planning framework includes LPP 206 although it did not at the time the Proposed Development was lodged with the Town.
There is a long line of Tribunal authorities which suggest that, as a general principle, 'little weight' should be given to a policy which is a 'substantive response to a particular pending development application': Ridgecity Holdings Pty Ltd and City of Albany [No. 2] [2006] WASAT 187; see also McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 [87][89], Vespoli and City of Stirling [2013] WASAT 161 at [41] - [45] and Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86 at [61].
In BHY Alexander Unit Trust and City of Nedlands [2021] WASAT 41 the Tribunal recently outlined (at [43]) that the concern with reactionary policies is that:
… Such a policy is unlikely to be based on sound town planning principles, is unlikely to have been conceived after considerable public discussion, would be in operation for a relatively short time and would not have been continuously applied (and, indeed, would be intended to be applied for the first time in assessing the particular pending development application). Furthermore, obviously, the pending development application would not have been conceived and designed to address a planning policy which was formulated in response to it. While strategic planning is necessarily fluid and constantly evolving, orderly and proper planning is premised on strategic planning guiding the formulation and assessment of development applications, rather than a particular development application being the catalyst for the formulation and adoption of a planning policy that is then used to assess that application[.]
We generally agree with these authorities. However, we would emphasise that a local planning policy made pursuant to the requirements of Div 2 of Pt 2 of the Deemed Provisions, which includes a mandatory minimum 21 day advertising period, should be regarded as prima facie a relevant consideration in the exercise of discretion pursuant to cl 67(2). It is also the case that, under cl 3(3) of the Deemed Provisions, a local planning policy is required to be consistent with sound planning principles.
Of course, the weight to be given to that policy is a matter for the decision-maker having regard to the relevant principles set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at 16 (Permanent Trustee), which were restated by the Tribunal decision in Land Alliance at [51] as follows:
(a)whether [the local planning policy] is based on sound town planning principles;
(b)where it is a public, rather than a secret policy;
(c)whether it is a public policy conceived after considerable public discussion;
(d)the length of time that a policy has been in operation; and
(e)whether it has been continuously applied.
In our view, the question of the weight to be given to that policy should be considered having regard to the fact as to whether the policy could be said to be consistent with sound planning principles as well as the other considerations identified in Permanent Trustee.
We say this having regard to the Court of Appeal's comments in Carcione Nominees Pty Ltd v Western Australian Planning Commission & Ors [2005] WASCA 56; (2005) 30 WAR 97; (2005) 140 LGERA 429 (Murray, Steytler and McKecknie JJ) (Carcione Nominees) where, in the context of what might be said to be a reactionary scheme amendment, it stated (at [90]):
By analogy of reasoning, it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister [for Planning] should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.
In Carcione Nominees the developer, who had an appeal pending in the then Town Planning Appeal Tribunal (TPAT), sought writs of certiorari and prohibition in relation to a scheme amendment process that was put in train in order to address the appeal pending before the TPAT. The application was dismissed by the Court of Appeal whose reasoning reflected the earlier decision of Brinsden J in Bonton Pty Ltd v City of South Perth [1982] WAR 213 at 219 - 220.
While it will often be the case that only limited weight can be given to a 'reactive' policy because it is relatively recent and has not been applied consistently, we would caution against the starting point being that such a policy should be given little weight, particularly if the policy itself is considered to have town planning merit. Of course, if the 'hastily' made policy has no planning merit, it follows that it should not be given any weight.
However, we see no reason why, as a matter of principle, what may be said to be 'hastily' made local planning policy, that has been duly made pursuant to Pt 2 of the Deemed Provisions, should not be subject to the ordinary evaluation of a policy in terms of the weight it should be afforded.
In this instance the amenity issues (arising from noise, traffic and the visual appearance of the hardstand) are such that it is unnecessary for us to grapple with the weight to be given to LPP 206, even if it strictly is 'reactionary'. While we consider that the Proposed Development does not appear to be consistent with the locational and other 'requirements' of LPP 206, in this instance, we have given LPP 206 little weight in the exercise of discretion.

Amenity considerations

The impact of the Proposed Development on the amenity of the locality is a central issue in these proceedings. It has been observed that 'except for 'development', 'amenity' is the hardest worked word in planning language': Ex Parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282 at [306] citing a progress report from the Minister of Local Government and Planning in the United Kingdom entitled 'Town and Country Planning 1943-1951' (1951) Journal of Planning Law, p 377.
The case authorities and relevant principles on evaluating amenity in Western Australia are well-known and settled. For many years the leading authority was Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) where the former Town Planning Appeal Tribunal (at 304) set out a three-step test in terms of evaluating amenity. The relevant steps are:
(1)establish the existing amenity in an objective sense;
(2)evaluate the manner in which the proposed use will affect the existing amenity; and
(3)assess the degree of impact on the locality.
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Sunbay) Barker P (as he then was) generally endorsed the approach to amenity set out in Tempora (save for one exception as to how amenity is evaluated which is not presently relevant) and confirmed that an evaluation of amenity should take account of future amenity: at [22]. The need to consider future amenity is expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.
Tempora and Sunbay remain the leading authorities on the question of amenity: see for example The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45 at [76]; Evangel at [54]; Urban Resources Pty Ltd and City of Swan [2016] WASAT 81 at [47] - [52]; John Cranston and Shire of Serpentine Jarrahdale [2019] WASAT 19 at [78].
Amenity arises as a consideration pursuant to cl 67(2)(n) of the Deemed Provisions. We have already set out in detail our findings on noise, traffic (and car parking) as well as the visual amenity impacts arising from the Proposed Development.
For the reasons we set out at [221] and [222] we accept the evidence of Mr Warpenius that the noise emitted by the Proposed Development is likely to exceed the assigned levels set out in the Noise Regulations. Regardless of whether that noise is 'community noise' for the purposes of the Noise Regulations, that level of noise will be unreasonable in a planning sense, particularly on 160B Alfred Road and 4 Butler Avenue.
With respect to amenity issues arising from traffic and car parking, for the reasons we set out at [320(e)] and [320(f)] we find that the Proposed Development will impact on the amenity of the residents of Butler Avenue in that it will increase, to a significant extent, the time taken to turn right onto Alfred Road, especially during the peak period.
On the issue of car parking, for the reasons set out at [320(h)] we find that the Proposed Development will, at times, have the effect that vehicles will have to queue in order to enter the car park, especially on account of the proposed tandem bays. As we set out at [338], the appearance of the hardstand is also problematic in this locality, given its size and scale.
We consider the noise and traffic issues to be particularly problematic from an amenity standpoint. The appearance of the hardstand is also far from ideal in what is, and what is planned to remain, a predominantly residential context. The issue of the car parking queuing we do not regard as being of the same significance.
We therefore find by reason of noise and traffic and the appearance of the hardstand that the Proposed Development will have an unacceptable impact on the amenity the locality.
Having viewed the Land and walked the length of Butler Avenue, we can understand the extent of the objections that have been raised by local residents, particularly those on Butler Avenue. We can understand why Ms Muirsmith considers that Butler Avenue is a 'special place'. That is no doubt due, at least in part, to the low traffic volumes on what is a relatively short cul-de-sac which provides a relatively safe haven for children to play.
While the Land is located at the intersection with Alfred Road, we consider that the impacts of the Proposed Development will be felt by all residents in Butler Avenue by reason of increased traffic as well as some parking. Having regard to the scale of the Proposed Development, we find these traffic amenity impacts to be unacceptable.
In reaching these findings, we have taken account of the fact the Land fronts Alfred Road which is a busy arterial road carrying a significant volume of traffic. That traffic already has amenity consequences in terms of noise and there are already difficulties associated with the intersection of Alfred Road and Butler Avenue. At some level, the amenity expectations of those who live closest to Alfred Road need to be tempered. As we set out at [97] in relation to the issue of noise, residents of these lots cannot have the same amenity expectations as those who live in a homogenous suburban environment.
However, even taking into account the context of the Land, the amenity impacts arising from the Proposed Development are unacceptable in our view. We say 'unacceptable' because of the range of impacts that arise and will need to be managed (to the extent that they can be managed). The noise impacts of the Proposed Development on the two closest dwellings (160B Alfred Road and 4 Butler Avenue) will be significant.

We note here that it is established law that a development can be refused based on the amenity impacts on one property. In Sunbay Barker J found at [28] that it is open:
… in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property[.]
We therefore conclude that the Proposed Development will have an adverse impact on the amenity of the locality.

Compatibility

By reason of recent amendments to the Deemed Provisions, cl 67(2)(m) requires that we give due regard to:
the compatibility of the development with its setting, including -
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]
The question of compatibility arises by reason of the visual impact of the car park hardstand which, as we have found, will have adverse amenity impacts on the locality. For the same reasons we explained at [338], we also find that 840m² of hard stand paving would not be compatible with the planning context of the Land. It is also the case that there is nothing in the 'desired future character' of this area which would suggest that it is an area where the introduction of significant nonresidential development might be anticipated, especially at the scale proposed in this instance.
The Proposed Development is not compatible with its setting for the purposes of cl 67(2)(m) of the Deemed Provisions.

Traffic safety

As we have explained at [315] traffic safety arises as an aspect of cl 67(2)(s) of the Deemed Provisions. We reiterate and rely on our findings at [320] in reaching our view that, while are there existing traffic issues in terms of access into, and egress from, Butler Avenue, we are concerned about the extent to which these issues will be exacerbated by the Proposed Development.
It is at this point when we note that the scale of the Proposed Development.
The Proposed Development is, by any measure, a significant child care centre. It will accommodate 90 children as well as staff. Although each proposal must be assessed on its merits and in its own context, by way of comparison, the proposed centre in Land Alliance was only for 80 children. By reference to [44], it is also larger than any other centre within close proximity of the Land. However, we accept it is not as large as some of the centres in the City of Nedlands.
In our view, when it comes to matters of traffic safety, it is no real answer to say simply rely on an argument that the existing situation is already a problem and that, sooner or later, the Town will need to act to address such issues.
We are not satisfied that access to, and egress from, the Proposed Development is appropriate for the purposes of cl 67(2)(s) of the Deemed Provisions.

The question of need and community impact

As we explained at [159], the uncontested evidence of Mr Abery is that there is a relevant demand for childcare in this region. The provision of additional childcare places in this region is a relevant factor that inclines towards granting approval. It is also the case that the community 'need' for a particular service may be relevant in terms of assessing the 'impact' of a proposed development.
That is, pursuant to cl 67(2)(x) of the Deemed Provisions, if the community is, in an overall sense, positively impacted by a proposed development then that may, in some circumstances, be an acceptable planning outcome even where some individuals may be adversely impacted by that development.
In terms of weighing and balancing the various factors, community need goes in favour of approving the Proposed Development. We also find that considerable weight should be given to the question of need.

Our decision

In the end, for a range of reasons, we find that the Proposed Development should be refused in the exercise of planning discretion.
In our view, the amenity impacts arising from the Proposed Development are unacceptable having regard to the planning context of the Land. As we have explained, the impacts of noise and traffic, as well as the appearance of the carpark hardstand, will, in our view, unreasonably compromise and erode the amenity of this locality. We consider that the Proposed Development will cause significant adverse amenity impacts for 160B Alfred Road and 4 Butler Avenue as well as the residents of Butler Avenue generally.
We are also concerned about traffic safety in terms of turning right from Alfred Road into Butler Avenue and also turning right from Butler Avenue onto Alfred Road. While we accept the existing traffic arrangements are not ideal, that, of itself, is no mandate to ignore or discount the safety issues that will inevitably arise having regard to the scale of the Proposed Development and the additional traffic movements it will generate.
In making this decision, we are mindful that the Proposed Development will provide an important community service in the form of additional childcare. The provision of a new child care centre in an inner city location would provide an important community service and function. However, in this instance, we are not satisfied that the community benefit arising from the Proposed Development outweighs its negative impacts such that approval should be granted.
Notwithstanding our findings on the various matters that arise for consideration under the Deemed Provisions, we acknowledge that we retain a discretion to approve the Proposed Development. However, the applicant has framed its case on the argument that the Proposed Development warrants approval pursuant to the applicable planning framework. For the reasons we have explained, we do not agree.
The applicant presented no further argument or evidence that the Proposed Development should be supported even in the event that we found (as we have) that it did not satisfy the requirements of the planning framework. While we expressly acknowledge that the Proposed Development will deliver a child care service that is needed in this area, in our view, that is not a sufficient basis on which to support the Proposed Development.
It follows that the correct and preferable decision is to affirm the respondent's decision to refuse the Proposed Development.

Orders

The Tribunal orders:
1.The decision under review is affirmed.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
7 MAY 2021

Group of children	Sound Power Level (dB) Reverberate	Sound Power Level (dB) AAAC
10 children (3-5 yo)	88	84 - 90
10 children (2-3 yo)	86	83 - 87
10 children (0-2 yo)	80	77 - 80