SHAW and CITY OF STIRLING
[2018] WASAT 81
•10 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SHAW and CITY OF STIRLING [2018] WASAT 81
MEMBER: MS M CONNOR (MEMBER)
HEARD: 6 AND 7 JUNE 2018
DELIVERED : 10 AUGUST 2018
FILE NO/S: DR 296 of 2017
BETWEEN: LEANNE SHAW
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - 'Place of Worship' - Appropriateness of the proposed development having regard to the shortfall in car parking spaces provided on site - Number of car parking spaces required to be provided on site - Demand generated - Use of onstreet and verge parking to accommodate overflow demand generated by the proposed development - Monopolisation of existing public car parking spaces - Whether the proposed development is consistent with planning framework
Legislation:
City of Stirling Local Planning Scheme No. 3, cl 4.2.6, cl 4.3, cl 4.3.1, cl 5.5.1, cl 5.9, cl 5.9.1, cl 5.9.2, cl 5.9.4, cl 10.2, Sch 2, Table 1
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 3, cl 67, cl 68
Planning and Development Act 2005 (WA), s 252(2), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
Ms Leanne Shaw applied to the Tribunal for review of a decision of the City of Stirling to refuse to grant development approval for a 'Place of Worship' on Lot 7 (No 14) Mumford Place, Balcatta.
The principal issue for determination in this matter related to the appropriateness of the proposed development having regard to the shortfall in car parking spaces provided on site to accommodate the demand generated by the proposed development.
The Tribunal found that the proposed development was not consistent with objective b) of cl 4.2.6 of the City of Stirling Local Planning Scheme No. 3 or the objectives of Local Planning Policy 6.7 - Parking & Access as the proposed development did not provide adequate car parking facilities on site to ensure that a major parking problem was unlikely to occur in the locality or that the car parking arrangements were conducive to safe, convenient and efficient access for motorists and pedestrians. The Tribunal also determined the degree of reliance on public car parking and verge areas to accommodate the shortfall in car parking spaces required to be provided by the proposed development to be inappropriate and as such, the application for review was dismissed and the decision of the City of Stirling to refuse development was affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Mrdja |
| Respondent | : | Mr J Algeri |
Solicitors:
| Applicant | : | Urbanista |
| Respondent | : | Altus Planning and Appeals |
Case(s) referred to in decision(s):
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Hunter & Anor and City of Rockingham [2008] WASAT 28
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Randall and Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ms Leanne Shaw (applicant) made application to the City of Stirling (respondent, Council or City) on 21 October 2016 for development approval for a 'Place of Worship' on Lot 7 (No. 14) Mumford Place, Balcatta (subject land).
The respondent, on a number of occasions, requested amended plans and additional information in respect to the development application, of which a full set of amended plans and further information was received by the respondent on 24 July 2017.
The application was refused by the respondent under delegated authority on 31 August 2017 for the following reasons:
1.The development does not address the requirements of the City's Local Planning Policy 6.7 Parking and Access as the car parking bays do not meet the minimum width required by the Australian Standards AS2890.1 (as amended) and are not unobstructed to allow a vehicle overhang as required by the Australian Standards AS2890.1 (as amended). (Refer Note 3).
2.The development does not address the requirements of the City's Local Planning Policy 6.7 Parking & Access as it does not facilitate the provision of adequate parking facilities and it does not ensure that a major parking problem is unlikely to occur.
3.The development does not address the requirements of the City's Local Planning Policy 6.7 Parking and Access as the proposed shortfall of vehicle parking bays will cause traffic issues in the area, will not provide a safe environment for pedestrians and motorists and will have an adverse impact on the amenity of the adjoining properties.
4.The development is contrary to Clause 10.2 of Local Planning Scheme and is not consistent with orderly and proper planning.
The applicant, on 19 September 2017, made an application under s 252(2) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and the application for development be granted.
As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in an amended application being provided to the respondent.
The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised proposal.
The Council at its meeting of 20 February 2018 reaffirmed its previous decision stating the following reasons:
a.The development does not address the requirements of the City's Local Planning Policy 6.7 Parking and Access, as it does not facilitate the provision of adequate parking facilities and it does not ensure that a major parking problem is unlikely to occur;
b.The development does not address the requirements of the City's Local Planning Policy 6.7 Parking and Access as the proposed shortfall of vehicle parking bays will cause traffic issues in the area, will not provide a safe environment for pedestrians and motorists, and will have an adverse impact on the amenity of the adjoining properties;
c.The development is contrary to Clause 67 (b) and (s) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the proposal does not provide for the adequate parking of vehicles and is not considered to meet the requirements of orderly and proper planning;
d.The development does not meet the objectives of the Industry zone as the proposal does not provide for safe and convenient access for clientele; and
e.The development does not meet the requirements of the City's Local Planning Policy 6.11 Trees and Development as the development does not provide sufficient soil space around each advanced tree.
Further amended plans were provided by the applicant on 9 March 2018 for the purposes of the final hearing (refer to Exhibit 8). It is agreed by the parties that the amended plans show a reduced public floor space internally, including a reduction in the number of seats in the auditorium, and addresses reason (e) of the respondent's refusal of 20 February 2018. It is this final iteration of the application that the applicant relies on at the final hearing of the matter.
Subject land
The subject land is more particularly described as Lot 7 on Diagram 57150, being the whole of the land contained within Certificate of Title Volume 1537 and Folio 984 and is 3889m² in area.
The subject land is currently vacant and has direct access to Mumford Place. Mumford Place is classified as a 'Local Road' under the City of Stirling Functional Road Hierarchy and is a dual lane single carriageway, between 9 and 10 metres wide. Together with Bendsten Place, it forms a loop road with Balcatta Road.
The proposal
The development, the subject of these proceedings, seeks approval to construct a four storey building with a gross floor area of 3724.62m² comprising the following:
•ground floor 87 car parking bays, 18 bicycle spaces and 272.11m² (Gross Floor Area) GLA;
•first floor 2142m² GLA which includes the auditorium; foyer and passageways, Sunday School area, toilets, baby crying rooms, green roofed grassed play areas and landscaping;
•second floor 972.64m² GLA which includes office area, second floor foyer and passageway; and
•third floor 336.87m² GLA which includes Sunday School area for upper primary and high school students, the stairs and lobby.
According to the plans, the auditorium area equates to 792.81m² and is capable of accommodating 828 seats. The hours of operation and expected number of persons for church services and other associated activities are shown in Table 1 below:
Table 1 - Table of Activities
| DAY | TIME | ACTIVITY | NUMBER OF PERSONS |
| Monday | 9am - 3pm | Office | 4 |
| 10am - 11am | Church Service | 40 | |
| 12pm - 1pm | Church Service | 40 | |
| Tuesday | 9am - 3pm | Office | 4 |
| 10am - 11am | Church Service | 40 | |
| 12pm - 1pm | Church Service | 40 | |
| 6.30pm- 7pm | Worship Practice | 20 | |
| 8pm - 8.30pm | Worship Practice | 20 | |
| Wednesday | 9am - 3pm | Office | 4 |
| Thursday | 9am - 3pm | Office | 4 |
| 6.30pm - 7pm | School of Impartation | 80 | |
| 9pm - 9.30pm | School of Impartation | 80 | |
| Friday | 9am - 3pm | Office | 4 |
| 10am - 11am | Church Service | 40 | |
| 12pm - 1pm | Church Service | 40 | |
| Saturday | 4pm - 5pm | Church Service | 80 |
| 6pm -7pm | Church Service | 80 | |
| Sunday | 7.30am - 8.30am | Church Service | 75 |
| 9.30am - 10.30am | Church Service | 100 | |
| 12.30pm - 1.30pm | Church Service | 200 |
Planning framework
The subject land is zoned 'Industrial' in the Metropolitan Region Scheme and 'Industry' under the City of Stirling Local Planning Scheme No. 3 (LPS 3 or Scheme).
Clause 4.2.6 of the Scheme sets out the following objectives for the Industry zone:
a)To provide for a range of industrial and business development, as well as facilities for the storage and distribution of goods.
b.To ensure a high standard of development appropriate to a modern industrial area and which is conducive to safe and convenient access by all clientele.
There is no dispute between the parties the land use being applied for is a 'Place of Worship' as defined as follows in Sch 2 - Land Use Definitions of LPS 3:
Place of Worship: means premises used for religious activities such as a church, chapel, mosque, synagogue or temple.
The respondent accepts for the purposes of use classification, and rightly so, that the 'Office' component of the proposed development is incidental to the dominant use, namely, a 'Place of Worship'.
Clause 4.3 of the Scheme makes provisions for a Zoning Table, which pursuant to cl 4.3.1 indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones.
'Place of Worship' is designated as a 'D' use in the Industry zone in Table 1 - Zoning Table (Zoning Table) of the Scheme. 'D' means that the use is not permitted unless the Council has exercised its discretion by granting development approval.
Clause 5.1.1 of LPS 3 provides that 'any development of land is to comply with the provisions of the Scheme and have due regard for any relevant Local Planning Policies effective under the Scheme.' Clause 3 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme area.
There are no particular requirements in LPS 3 relating to the provision of the number of car parking spaces required to be provided for land use categories, and such, the parties identified Local Planning Policy 6.7 Parking and Access (LPP 6.7) as the relevant local planning policy for the purposes of determining the number of car parking spaces required to be provided on-site.
The objectives of LPP 6.7 are:
a)To facilitate the development of adequate parking facilities;
b)To ensure safe, convenient and efficient access for pedestrians, cyclists and motorists;
c)To ensure that a major parking problem is unlikely to occur;
d)To ensure that car parking areas and access ways do not have a detrimental impact on the character and amenity of the area; and
e)To ensure that an oversupply of parking does not occur that discourages alternative forms of transport and is detrimental to the urban design and character of the locality.
Clause 5.1 of LPP 6.7 sets out the number of car parking bays required to be provided for particular uses. The car parking ratio to be provided for a 'Place of Worship' is 1 bay per 4m² of public floor space (PFS) and 1 bay per staff member. Clause 5.2.1 of LPP 6.7 also provides performance criteria for consideration of parking reductions for nonresidential development. The parties agreed that as 'end of journey' facilities are proposed to be provided, a 10% concession could be considered in this case.
Clause 5.9.1 of LPS 3 provides discretion to permit the car parking space for a non-residential development or uses that do not provide the number of car parking spaces required by LPP 6.7 to be provided 'jointly with one or more other developments or uses whether or not those other developments or uses have the number of car parking spaces required by [LPP 6.7]'. Clause 5.9.2 of the Scheme sets out criteria that needs to be satisfied in the exercise of discretion and cl 5.9.4 provides the ability for the Council to:
… require the owner of the land to which the application relates and the owner of the land which is not the subject of the application and which is to provide car parking spaces and any other person specified by the City, to enter into a legal agreement, to which the City may also be a party, which provides for the provision and use of car parking spaces.
Clause 5.2.2 of LPP 6.7 provides guidance relating to the exercise of discretion when considering reciprocal parking arrangements.
Clause 10.2 of the LPS 3 sets out the matters to be considered in determining an application. However, the Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36, found that, by virtue of s 257B(3) of the PD Act, cl 67 of the deemed provisions has replaced all the equivalent provision in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text. Clause 10.2 of LPS 3 is such a provision.
Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The pertinent matters regarding this application, as identified by the parties are as follows:
•the aims and provisions of the scheme (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any local planning policy for the scheme area (subclause (g));
•the compatibility of the development with its setting (subclause (m));
•the amenity of the locality (subclause (n));
•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 (subclause (s)); and
•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.
Pursuant to cl 68 of the deemed provisions, the local government (and the Tribunal on review) may determine an application for development by -
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
Issue
During the course of the final hearing, it was agreed by the parties that the sole issue for determination is the appropriateness of the proposed development having regard to the shortfall in car parking spaces provided on site. Further, the applicant clarified its position in respect to the reciprocal parking arrangements contained in the material submitted to the respondent on 9 January 2018 (refer to pages 261-263 and 270-276 of Exhibit 3) and informed the Tribunal that it does not rely on the reciprocal parking arrangements to satisfy the car parking requirement of LPS 3. Rather, the applicant submits that the reciprocal parking arrangements show informal support for the proposed development.
Car parking assessment
The Tribunal had the benefit of expert evidence from Ms Bianca Sandri, a town planning consultant, and Ms Marina Kleyweg, an architectural engineer, director and cofounder of KC Traffic and Transport Pty Ltd (KCTT), called on behalf of the applicant and Ms Christine Collins, Senior Planning Officer at the City and Mr Damir Vagaja, a qualified Engineer and the Design Engineer - Traffic, Engineering Design Business Unit at the City, called on behalf of the respondent.
It is agreed by the parties that a total of 87 car parking bays are capable of being provided on site based on the proposed design.
Ms Collins, in calculating the required car parking for the proposed development turned to LPP 6.7, and identified the following car parking ratios relevant to this application:
•Place of Worship - 1 bay per 4m2 of PFS and 1 bay per staff member; and
•Office - 1 bay per 30m2 of gross leasable area (GFA).
Ms Collins also considers that the number of car parking bays derived by the application of the car parking ratios can be reduced by 10 per cent as the proposed development satisfied the performance criteria relating to the provision of 'end of journey' facilities on-site.
According to Ms Collins, the plans dated 9 March 2018 show a total of 1,103.33m2 of PFS and indicate that four staff members will be employed. On these particulars, she concludes that a total of 257 car parking bays are required to be provided on site and as only 87 car parking bays are provided on site, there is a 170 car parking bay shortfall.
Ms Sandri in her evidence considers that it is more appropriate to calculate car parking ratios based on the number of seats available or maximum occupancy of a 'Place of Worship' rather than PFS. However, Ms Sandri accepts that the relevant local planning policy effective under LPS 3 is LPP 6.7, which calculates car parking requirements based on PFS. In her assessment of PFS she considers there to be areas, such as the floor space dedicated to 'Sunday School' and 'Babies Room' (which equates to 310.52m2 of PFS), that should not be included in the calculation of PFS as these area are associated with activities that do not contribute to parking and traffic demand. Ms Kleyweg also holds this view and considers that 'only areas directly influencing traffic and parking demand should be considered, in this case it is the area of auditorium only or the number of seats in the auditorium'.
On this premise, the car parking requirements for the auditorium (792.81m2) reduces to 178 car parking bays to be provided on site, of which the development proposes to provide 87 car parking bays on site. On Ms Sandri's calculation, there is a 91 car parking bay shortfall.
The applicant also provided information relating to the hours of operation and expected maximum number of occupants during service times as justification for the number of car parking bays provided on site (refer to Table 1 at para 12). Ms Collins and Mr Vagaja both accept that the number of car parking bays provided on-site would be sufficient for the activities as identified for Monday, Tuesday, Wednesday and Friday. Both these witnesses did not consider there to be sufficient car parking spaces on site to cater for the activities to be held on Thursday, Saturday and Sunday, based on the number of attendees being greater than the number of car parking spaces provided. Whereas, both Ms Sandri and Ms Klegweg in their assessment consider there to be sufficient car parking spaces on site to accommodate the expected attendees on all days except for Sunday. Both the applicant's witnesses accept that on-street parking may be required for Sunday services.
Both Ms Sandri and Ms Klegweg consider that LPP 6.7 should be departed from in this instance as the 87 car parking bays provided onsite, together with the available on-street and verge parking, will be sufficient to satisfy the parking demand generated by the land use and will not create a parking problem within the locality. Ms Klegweg, in her witness statement at para 43 Exhibit 13, expresses the following reasons for her opinion:
a.Although auditorium is designed to cater for 828 people, it is anticipated that auditorium might be used to the capacity only on days such as Easter and Christmas service. Regular peak use is anticipated for Sunday service and, as conservatively assumed …, it is not likely to exceed 375 worshippers … The assumption of the number of worshippers is based on current practice of the Proponent.
b.Sunday service is likely to be attended by families where vehicle occupancy is high and significantly reduces parking requirement.
c.The proponent has written approval from several tenants in the vicinity of the subject site to utilise their parking as reciprocal parking … This allows access to additional 218 parking bays should need arise.
d.The neighbouring roads have exceptionally wide carriageways and verges which allows for abundant on-street parking. When assessed via aerial imagery provider Nearmap, the carriageway on Mumford Place is 10 metres wide, while verges are 4.5m wide. Carriageway width of 10m can safely accommodate on-street parking.
e.On street parking is barely used on weekends, as confirmed in parking surveys performed by KCTT on Saturday, 28.04.18 and Sunday, 29.04.18 between 10:30 and 12:30, and the most recent aerial imagery, therefore it is a sound option for additional parking should the need arise.
f.City of Stirling's LPP 6 .7 stipulates that the parking requirement for a place of worship should be determined in relation to the public floor area which in this case can lead to direct contravention of one of the main goals of LPP 6 .7 - avoiding overprovision of parking. Expansive and impressive building will attract more parking under this assessment regardless of the capacity of the building. [I] believe this notion warrants a variation of LPP 6.7 requirements.
g.If this development was to be developed in any other neighbouring council, the parking requirement would be drastically lower, and the parking provision would be within the council requirement. It is hard to believe that a place of worship of the same capacity in the City of Stirling is likely to attract more vehicles than in any other neighbouring local government.
Tribunal's consideration
As previously stated, LPS 3 does not contain any specific provisions relating to the provision of car parking spaces for land uses within the Scheme area and relies on LPP 6.7 for the purpose of calculating the number of car parking spaces required to be provided on-site for a particular development. Clause 5.1.1 of LPS 3 provides that any development of land is to have due regard for any relevant local planning policy effective under the Scheme. Further, cl 67 of the deemed provision provides that in considering an application for development due regard is to be given to any local planning policy for the Scheme area.
As articulated in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 24, Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.
His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to the] particular application[.]
In this instance, the planning framework identifies the method of calculating the provision of car parking bays based on PFS. In respect to this calculation, the parties disagree on the area of the building that should be included in the calculation of PFS. On this point, the Tribunal prefers the evidence of Ms Sandri and Ms Kleyweg as it is reasonable in the calculation of car parking bays to exclude the floor space dedicated to the 'Babies Room' and 'Sunday School' as these areas are associated with ancillary activities related to the dominant use 'Place of Worship' and because the nature of the activities do not generate demand for car parking spaces. Excluding these areas from the PFS there would be a 91 car parking bay shortfall associated with the proposed development.
The applicant also submits that the more appropriate method of calculating car parking requirements for places of worship is to base the assessment on the number of seats available or maximum occupancy as this calculation provides a more accurate prediction of the need for car parking. The applicant adduced evidence showing that a number of other local governments in the north-west region of the Perth Metropolitan area used this method to determine car parking requirement for places of worship/assembly. The Tribunal is not persuaded that this is the case as there was no evidence led to substantiate the assertion that this approach is superior to that utilised by the City in LPP 6.7. Furthermore, the applicant's argument is not advanced through the application of this methodology as 'the parking requirement [for the proposed development] would be 207 parking bays', reducing to 186.4 car parking bays if the City's 10% concession was applied for 'end of journey' facilities. On this calculation, there would be a 99 car parking bay shortfall (para 34 of Exhibit 13).
If the Tribunal considers car parking provision on the presently anticipated attendance of services as outlined in Table 1, and accepts the joint evidence of the traffic engineers that vehicle occupancy for this category of use is higher than the Perth Metro average of 1.2 person per vehicle, the Tribunal is satisfied that the 87 car parking spaces provided on site will be adequate to accommodate the expected number of attendees for any one service on Monday to Saturday. However, the Tribunal is not convinced that the 87 on-site car parking spaces will be adequate to cater for the demand generated by the Sunday 9:30am and 12.30am services and the evidence clearly evinces that when the auditorium is used to capacity all of the on street and verge parking in the locality will be required to accommodate the overflow demand. There is also potential for the overflow demand to spill onto surrounding properties in the area.
In determining the car park requirements for the proposed development it is not appropriate, in this instance, to restrict the consideration to just the currently anticipated attendance provided by the applicant given the scale of the development and the stated seating capacity of the auditorium, which could potentially accommodate 828 persons. To place any reliance on the figures produced in Table 1, a condition limiting the number of attendees would need to be imposed on any approval. A condition of this nature would strike directly at activity being applied for, as the scale of the proposed development obviously provides for substantial potential increase in attendees and would be difficult for the respondent to police and enforce: see Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119.
The applicant also explored the possibility of utilising other premises' carpark areas in the locality and submitted into evidence letters from seven tenants of businesses (letters) within an 800 metre walkable catchment giving permission for the 'Living Faith Community Church' to utilise their parking spaces on Saturday evenings and Sunday mornings. The number of potential car bays accessible from this source equated to 218 bays. As previously stated, the applicant accepts that these letters are not legally binding and do not satisfy reciprocal parking arrangements as provided for by cl 5.9 of LPS 3, but submits that they are an indication of support for the proposed development in the locality.
As the applicant rightly acknowledges, the letters cannot be taken as providing legal agreements for the use of car parking spaces of other development(s) as a solution to the car parking space shortfall of this development.
It is a generally accepted planning principle that any parking demand generated by a development should be provided on site, although the Tribunal has previously found that consideration of limited use of existing public parking in the exercise of planning discretion may be acceptable (see Randall and Town of Vincent [2005] WASAT 129 and Hunter & Anor and City of Rockingham [2008] WASAT 28).
The respondent accepts that the idea of some parking being available off site in the immediate vicinity would be acceptable, but not the entire street (ts 43-48, 7 June 2018).
The applicant asserts that onstreet and verge parking on Mumford Place and Bendsten Place is mostly vacant on Sundays and capable of accommodating any overflow car parking demand generated by the development. Ms Kleywey prepared a plan to show that within an 800 metre walking catchment there are potentially 91 on-street car parking bays and 33 verge parking bays available on Mumford Place and Bendsten Place (refer to Exhibit 16). Mr Vagaja, in oral evidence observed, which the Tribunal accepts, that this calculation is dependent on 'ideal parking behaviours' which if not adhered to would reduce the availability of car parking spaces and that the proposed tandem verge parking would be difficult if there were no traffic management strategies in place directing traffic. The Tribunal was also informed that verge parking in the City is governed by a local law and can be prohibited at the request of the landowner of the adjacent verge. In this context, reliance on verge parking as a solution to overflow demand is considered to be tenuous at best.
The evidence before the Tribunal clearly demonstrates that the 87 car parking spaces provided on site are not sufficient to cater for the car parking demand generated by a place of worship of the scale contemplated by this proposal, and as such, any overflow demand for car parking spaces will be reliant on the availability of onstreet and verge parking. The Tribunal considers the extent of the shortfall in car parking spaces for the proposed development to be significant and the overflow car parking demand generated for Sunday services and for isolated events will result in a private development monopolising what is presently available public car parking spaces in the locality and as such, will have a detrimental impact on the amenity of the locality. It is accepted that based on the current anticipated number of attendees the monopolisation of the public car parking spaces is likely to coincide with times when most businesses in the locality are unlikely to be operating and therefore the conflict between land uses for onstreet and verge parking is unlikely to be a critical issue at present. However, the incidence of such monopolisation could increase with more intense use of the building and as such the potential for conflict between land uses and businesses in the locality is a relevant consideration. Furthermore, the notion of a single land use effectively being granted approval to monopolise the available public car parking space in a locality is contrary to orderly and proper planning as such an approach would undermine the potential for other sites in the locality to avail themselves of the same opportunity to access a public resource.
The respondent also contends that the use of onstreet and verge parking to address the overflow demand generated by the proposed development is contrary to the objective b) of cl 4.2.6 of the Scheme and the planning objectives of LPP 6.7 because, in this case, the car parking arrangements are not 'conducive to safe and convenient access' by attendees and do not 'ensure safe, convenient and efficient access to pedestrians … and motorists' for the following reasons. Firstly, there are no footpaths on Mumford Place or Bendsten Place therefore pedestrians will be exposed to the risk of being hit by a vehicle or tripping and injuring themselves as they are forced to walk on the road or uneven verges. Secondly, the lack of parking management strategies to direct patrons to available parking is likely to result in congestion and safety problems as drivers try to navigate to find a parking space. Thirdly, the safety issues associated with vehicles parking onstreet, vehicles driving around looking for a parking space and pedestrians walking on the road is further exacerbated by the fact that Mumford Place is part of the RAV2-4 heavy vehicle route network, which means that vehicles up to 27.5m length and 87.5 tonnes can utilise this road without any restrictions.
The applicant submits that Mumford Place is a wide and open road which can safely accommodate vehicle movements and cars parking on both sides of the street. This arrangement was observed during the view undertaken by the Tribunal and representatives of the parties. The Tribunal was told that there have not been any recorded accidents or injuries on Mumford Place to date. The applicant argues that the risk of accident in this case is low given that the peak period of visitors attending the site will be at a time when businesses in the locality are unlikely to be operating and the use is a 'homogenous' use where attendees come for one single purpose and will establish a pattern of movement. As to the lack of footpath, Ms Klegweg believes 'that the lack of footpath is not a greater hazard for visitors to the proposed development than what it is for other tenants of Mumford Place'.
It was agreed by the traffic experts, and the Tribunal accepts, that Sunday 12.00 pm will be the peak period of visitors attending the site and that the number of vehicles in that concentrated period would be relatively busy in the context of a local road, such as Mumford Place. It was further agreed that the peak traffic volumes and pedestrian movements generated by the proposed development will align, therefore elevating exposure to risk and that exposure to risk for this period is not comparable with weekdays as patterns of movement would be different. Ms Klegweg accepts that on occasions when the proposed development is operating at capacity there will be a risk of conflict between vehicles and pedestrians on Mumford Place. The Tribunal considers there to be an appreciable potential for conflict between vehicles and pedestrian given that there will be periods of concentrated activity where drivers will be looking for car parking spaces and pedestrians walking up to 800 metres along the road pavement or uneven verges of Mumford Place.
Further, the Tribunal also considers there likely to be congestion in the cul-de-sac section of Mumford Place as drivers try to navigate access and egress, drop-offs and pedestrians, creating an unsafe environment for both motorists and pedestrians. Although there may be traffic solutions which could probably be addressed in a Traffic Management Plan, the Tribunal at present does not have any evidence which it can rely on to be satisfied that this conflict can be resolved satisfactorily.
The Tribunal, in considering the circumstances of this case, does not consider the proposed development to be consistent with objective b) of cl 4.2.6 of LPS 3 or the objectives of LPP 6.7 for the following reasons. Firstly, the proposed development does not provide adequate car parking facilities on site to ensure that a major parking problem is unlikely to occur in the locality. Secondly, the car parking arrangements are not conducive to safe, convenient and efficient access for motorists and pedestrians. Thirdly, the degree of reliance on public car parking and verge areas to accommodate the shortfall in car parking spaces required to be provided by the proposed development is not appropriate for the reasons expressed above. Therefore, the Tribunal declines to exercise discretion to approve the proposed development. Consequently, the proposed development warrants refusal.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
10 AUGUST 2018
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