Shri Shirdi Sainath Perth Inc and City Of Gosnells
[2017] WASAT 24
•12 JANUARY 2017
SHRI SHIRDI SAINATH PERTH INC and CITY OF GOSNELLS [2017] WASAT 24
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 24 | |
| 02/02/2017 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:231/2016 | 28, 31 OCTOBER AND 8 NOVEMBER 2016 | |
| Coram: | MS M CONNOR (MEMBER) | 12/01/17 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of the respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | SHRI SHIRDI SAINATH PERTH INC CITY OF GOSNELLS |
Catchwords: | Town planning Development application Place of Worship Restrictions on hours of operation and number of persons attending sessions Whether proposed use consistent with stated objective of General Rural zone Whether proposed use will have a detrimental impact on prevailing amenity of locality Whether proposed development can be approved without preparation of a bushfire management plan Weight to be accorded to draft scheme amendment |
Legislation: | City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 4, cl 5, cl 11.2, Sch 1, Pt 2, Pt 5 Environmental Protection Act 1986 (WA), s 48 Planning and Development Act 2005 (WA), s 81, s 241(1), s 252(1), s 257B, Pt 3 Planning and Development (Local Planning Scheme) Regulations 2015 (WA), Sch 2, cl 67 State Administrative Tribunal Act 2004 (WA), s 9(a), s 27(2) |
Case References: | Association of Islamic Dakwah in Western Australia and City of Gosnells [2001] WASAT 80 Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Falc Pty Ltd and Others v State Planning Commission (1991) 74 LGRA 68 Humich and City of Gosnells [2008] WASAT 298 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 Puma Energy Australia and City of Cockburn [2016] WASAT 35 Randall and Town of Vincent [2005] WASAT 147 Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
Summary | Shri Shirdi Sainath Perth Inc applied to the Tribunal for review of a decision of the City of Gosnells to refuse to grant planning approval for the construction of a 'Place of Worship' on Lot 1 (No 91) Reservoir Road, Orange Grove. ,The particulars of the proposed development before the Tribunal were as follows: a purposebuilt building of approximately 830m2 in area incorporating a temple accommodating a maximum of 100 persons; ancillary facilities such as meeting rooms, kitchen, mother's room, toilet and a mediation hall; 30 car parking bays and the use of the existing dwelling as a caretaker's dwelling. The applicant also agreed to restrictions being imposed on the hours of operation of the place of worship and number of persons attending the site during those time periods.,The following four issues arose for determination in this matter:,1) whether the proposed use is consistent with the stated objectives of the General Rural zone;,2) whether the proposed use would have a detrimental impact upon the prevailing amenity of the locality;,3) in light of cl 6.6 of State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7), whether the proposed development can be approved without the preparation of a bushfire management plan; and,4) what weight should be accorded to draft Scheme Amendment No 172.,Although the Tribunal considered the proposed development was capable of approval in the General Rural zone and that the degree of impact of the proposed development on the prevailing amenity of the locality was acceptable, the Tribunal was not persuaded that there was a cogent reason to depart from the planning principles embodied in SPP 3.7 and considered the preparation and approval of a bushfire management plan, in this case, to be a critical aspect in determining whether the proposed development could proceed. The application for review was therefore dismissed and the decision of the respondent affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SHRI SHIRDI SAINATH PERTH INC and CITY OF GOSNELLS [2017] WASAT 24 MEMBER : MS M CONNOR (MEMBER) HEARD : 28, 31 OCTOBER AND 8 NOVEMBER 2016 DELIVERED : 12 JANUARY 2017 PUBLISHED : 2 FEBRUARY 2017 FILE NO/S : DR 231 of 2016 BETWEEN : SHRI SHIRDI SAINATH PERTH INC
- Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning Development application Place of Worship Restrictions on hours of operation and number of persons attending sessions Whether proposed use consistent with stated objective of General Rural zone Whether proposed use will have a detrimental impact on prevailing amenity of locality Whether proposed development can be approved without preparation of a bushfire management plan Weight to be accorded to draft scheme amendment
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 4, cl 5, cl 11.2, Sch 1, Pt 2, Pt 5
Environmental Protection Act 1986 (WA), s 48
Planning and Development Act 2005 (WA), s 81, s 241(1), s 252(1), s 257B, Pt 3
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), Sch 2, cl 67
State Administrative Tribunal Act 2004 (WA), s 9(a), s 27(2)
Result:
Application for review dismissed
Decision of the respondent affirmed
Summary of Tribunal's decision:
Shri Shirdi Sainath Perth Inc applied to the Tribunal for review of a decision of the City of Gosnells to refuse to grant planning approval for the construction of a 'Place of Worship' on Lot 1 (No 91) Reservoir Road, Orange Grove.
The particulars of the proposed development before the Tribunal were as follows: a purposebuilt building of approximately 830m2in area incorporating a temple accommodating a maximum of 100 persons; ancillary facilities such as meeting rooms, kitchen, mother's room, toilet and a mediation hall; 30 car parking bays and the use of the existing dwelling as a caretaker's dwelling. The applicant also agreed to restrictions being imposed on the hours of operation of the place of worship and number of persons attending the site during those time periods.
The following four issues arose for determination in this matter:
1) whether the proposed use is consistent with the stated objectives of the General Rural zone;
- 2) whether the proposed use would have a detrimental impact upon the prevailing amenity of the locality;
3) in light of cl 6.6 of State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7), whether the proposed development can be approved without the preparation of a bushfire management plan; and
Although the Tribunal considered the proposed development was capable of approval in the General Rural zone and that the degree of impact of the proposed development on the prevailing amenity of the locality was acceptable, the Tribunal was not persuaded that there was a cogent reason to depart from the planning principles embodied in SPP 3.7 and considered the preparation and approval of a bushfire management plan, in this case, to be a critical aspect in determining whether the proposed development could proceed. The application for review was therefore dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr Hall
Respondent : Mr Algeri
Solicitors:
Applicant : Borello Graham Lawyers
Respondent : Altus Planning & Appeals
Case(s) referred to in decision(s):
Association of Islamic Dakwah in Western Australia and City of Gosnells [2001] WASAT 80
Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Falc Pty Ltd and Others v State Planning Commission (1991) 74 LGRA 68
Humich and City of Gosnells [2008] WASAT 298
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Puma Energy Australia and City of Cockburn [2016] WASAT 35
Randall and Town of Vincent [2005] WASAT 147
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Introduction
1 Peter Webb and Associates on behalf of Shri Shirdi Sainath Perth Inc (applicant) made application to the City of Gosnells (respondent, Council or City) in January 2016 for planning approval for a 'Place of Worship' on Lot 1 (No 91) Reservoir Road, Orange Grove (subject land or development site).
2 The respondent, at its meeting of 4 July 2016, resolved to refuse to grant planning approval for a 'Place of Worship, Caretakers (sic) Dwelling, and Community Purpose' on the subject land. In refusing the application, the respondent gave the following four reasons:
• The use is not consistent with the stated objectives of the General Rural zone.
• The scale of the use, in relation to building bulk and the number of people likely to attend the site, exceeds what could reasonably be expected within an established ruralresidential area.
• The proposed use would have a material impact upon the prevailing ruralresidential amenity of the area.
• The application is not supported by the Bushfire Attack Level Assessment or Bushfire Management Plan prepared by an accredited Bushfire Planning Practitioner in accordance with the Western Australian Planning Commission's Guidelines for Planning Bushfire Prone Areas.
3 The applicant, on 29 July 2016, made application under s 252(1) 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 planning approval be granted.
Subject land
4 The subject land comprises Lot 1 (No 91) Reservoir Road, Orange Grove and has a total land area of 7840m². Lot 1 is situated on the corner of Reservoir Road and Grant Street and has a frontage of 61.66 metres to Reservoir Road and 111.45 metres to Grant Street.
5 The subject land currently contains an existing single dwelling and associated outbuildings, and is accessed from Reservoir Road. The existing dwelling is to be retained and some of the outbuildings may require removal as the new development is to be constructed on the rear of the property.
The proposal
6 The proposed development that was submitted to the respondent in January 2016 proposed the construction of a Place of Worship comprising the temple accommodating a maximum of 150 persons, ancillary facilities such as meeting rooms, kitchen, mother's room and toilets and a mediation hall. The total floor space of the complex was 1070m² in area. It was also intended that the existing single dwelling be used as a 'Caretaker's Dwelling'.
7 A total of 45 car parking spaces were provided onsite, the majority situated along the Grant Street frontage of the site. Access to the site was proposed via a modified crossover from Reservoir Road and a new crossover to Grant Street.
8 The hours of operation proposed were as follows:
Place of Worship
• 6.30 am to 12.30 pm and 6 pm to 9 pm on Monday to Friday;
• 6.30 am to 12.30 pm and 5 pm to 10 pm on Saturday and Sunday; and
• 6 am to 10 pm for one day in July/August for a special event.
Mediation/Yoga Hall
• 4 pm to 5 pm on Monday to Friday.
Library and Art Gallery
• 4 pm to 9 pm on Monday to Friday; and
• 6 pm to 9 pm on Saturday and Sunday.
9 A revised proposal, attempting to address the concerns of the respondent, was incorporated in the witness statement of Mr Nik Hidding, the applicant's planning consultant (Exhibit 7).
10 The modified elements of the revised proposal, as detailed in Mr Hidding's witness statement at paragraph 10, included:
a. Reduced number of parking bays (total 30) to reflect the maximum number of people (100) attending the site on one (1) day of the week only (Saturday evening);
b. Increased side and rear setbacks to the development, to a minimum of 8.00m;
c. Oneway entry and exit to and from the site to assist with directing headlights away from the neighbouring residence(s);
d. Modified built form, including more 'rural residential' in appearance; and
e. Reduced area of the proposed facility (to a total of 830m²).
11 By orders of the Tribunal on 6 October 2016, the respondent was given the opportunity to either, file evidence in response to the applicant's evidence, or reconsider its decision to refuse the application. The respondent chose to file responsive evidence in respect to the revised proposal.
12 A further revised plan (second revised proposal) was handed up at the commencement of the hearing by the applicant's representative (Exhibit 8). The second revised plan involves modification to the car parking layout so that 10 of the car parking bays fronting onto Grant Street are relocated to east of the proposed facility along the internal road. The effect of the modification is an increase in distance from the adjoining lot (No 64 Grant Street) to the commencement of the first car bay from approximately 27 metres to 52 metres.
13 Mr Hall also told the Tribunal that the applicant was prepared to accept a 'without prejudice' condition on an approval restricting the number of people attending the site at any one time and the hours of operation to the following:
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14 It was agreed by the parties, and accepted by the Tribunal, that the revised proposal was not so different from the original plan as to effectively convert the proposal into a new proposal: Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269.
Planning framework
15 The subject land is zoned General Rural in the City of Gosnells Town Planning Scheme No 6 (TPS 6 of Scheme).
16 Clause 1.6 of TPS 6 sets out the aims of the Scheme. The relevant aims in relation to this matter include:
…
(d) To ensure the orderly and proper use and development of land within the District.
(e) To protect and enhance the quality of the urban and rural living environments of the District, and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community.
…
(g) To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
…
17 Clause 4.2 of the Scheme sets out the objectives of the zones. The objective for the General Rural zone is:
To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality.
18 'Rural Pursuits' is defined in Schedule 1 Dictionary of Defined Words and Expressions (Schedule 1) of the Scheme as meaning:
… any premises used for
(a) the rearing or [adjustment] of animals;
(b) the stabling, [adjustment] or training of horses;
(c) the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d) the sale of produce grown solely on the lot,
but does not include agriculture extensive or agriculture intensive[.]
19 The respondent, in its determination of the matter, classified the proposed development as 'Place of Worship', 'Caretaker's Dwelling' and 'Community Purpose', which are defined in Schedule 1 of the Scheme as follows:
'place of worship' means premises used for religious activities such as a church, chapel, mosque, synagogue or temple;
'caretaker's dwelling'means a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant;
'community purpose'means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organizations involved in activities for community benefit[.]
20 Clause 4.3 of the Scheme makes provision 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 the various zones.
21 Clause 4.3.1 and cl 4.3.2 of the Scheme state follows:
4.3.1 The Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones. The permissibility of any uses is determined by cross reference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
4.3.2 The symbols used in the cross reference in the Zoning Table have the following meanings:
'P means that the use is permitted by the Scheme providing the use omplies with the relevant development standards and the requirements of the Scheme;
'D' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
'A' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 10.4;
'X' means a use that is not permitted by the Scheme.
23 Part 5 of the Scheme sets out the General Development Requirements for the zones identified in the Scheme. More specifically, cl 5.11 of the Scheme provides the development requirements relating to the Rural zones, which includes the General Rural zone. The minimum setback requirement for the General Rural zone are set out in Table 2C, which form part of the requirements of cl 5.11, and are as follows:
| Minimum Setbacks | ||
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| 15m primary 15m secondary |
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24 Clause 5.13 of the Scheme sets out the vehicle parking access requirements for development within the Scheme area. All nonresidential development is required to provide concrete or bitumen sealed, kerbed, marked and drained onsite car parking in accordance with requirements in Tables Nos 3A and 3B (cl 5.13.1).
25 Table 3A of the Scheme sets out the parking standards for specific developments/uses and prescribes the following standards for the proposed uses:
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1 space for every 4 persons the facility is designed to accommodate, or 1 space for every 2.5m2 seating area, whichever is the greater |
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26 Clause 5.13.5 and cl 5.13.7 and Table 3B of the Scheme provides for the design and maintenance requirements for car parking bays and cl 5.13.3 provides for variations to parking requirements as specified in cl 5.13.1 of the Scheme.
27 Clause 11.2 of the Scheme sets out the matters to be considered in determining an application. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 35, found that pursuant to s 257B of the PD Act, cl 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) is deemed to form part of the Scheme. Clause 67 of Sch 2 of the Regulations (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, those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
(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 including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
…
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
...
(m) the compatibility of the development with its setting including 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) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
…
(p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
(q) the suitability of the land for the development taking into account the possible risk of … bush fire, … or any other risk;
...
(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;
…
(zb) any other planning consideration the local government considers appropriate.
28 Clause 67(g) of Sch 2 of the Regulations refers to any local planning policy for the Scheme area. Clause 2.2 of the Scheme empowers the council to make planning policies in respect to any matters relating to planning and development of the Scheme area. These policies may apply to all or part of the Scheme area and may apply generally or for a particular class or classes of matter. The respondent has adopted Local Planning Policy 2.8 Planning Guidelines for Places of Worship (LPP 2.8). According to the respondent, LPP 2.8 has been formulated and adopted pursuant to Pt 2 of the Scheme. This evidence was not challenged by the applicant.
Issues
29 The respondent filed a 'Statement of Reasons' setting out the reasons for the decision, which formed the basis of the issues agreed at the hearing. The issues for determination in this matter are as follows:
1) Whether the proposed use is consistent with the stated objectives of the General Rural zone;
2) Whether the proposed use would have a detrimental impact upon the prevailing amenity of the locality;
3) In light of cl 6.6 of State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7), whether the proposed development can be approved without the preparation of a bushfire management plan; and
4) What weight should be accorded to draft Scheme Amendment No 172?
30 The Tribunal will address each issue in turn.
Whether the proposed use is consistent with the stated objective of the General Rural zone
31 The issue of use classification was raised in relation to this matter. The respondent asserts that the proposed application involves a number of distinct uses, namely, Place of Worship, Community Purpose and Caretaker's Dwelling. The applicant disputes this use classification and says that the various activities proposed on site fall within the definition of Place of Worship. There is no dispute that the proposed temple is a Place of Worship. The activities in issue relate to the meditation/yoga hall and associated facilities (meeting rooms, library and art gallery, kitchen and mothers' room) and the existing dwelling.
32 The respondent called Ms Tracey Baglin, Planning Officer at the City, to give evidence on its behalf. Ms Baglin considers the various activities proposed on site involve distinct uses and as such, each use should be classified separately. She considers the meditation/yoga hall and associated facilities fall within the use class definition of Community Purpose, as the use of these facilities also involves use by the general public. As to the existing dwelling, Ms Baglin submits that as the priest is going to be living in the dwelling, it is a caretaker's dwelling.
33 Mr Hidding, is of the view that the existing dwelling and meditation/yoga hall are not distinct uses as they form part of the operations of the Place of Worship and considers these uses to be incidental uses to the predominant use.
34 The mediation/yoga hall and existing dwelling are proposed as an adjunct to the Place of Worship, and whether they are activities within their own right and enhance the primary use is a question of fact and degree: Humich and City of Gosnells [2008] WASAT 298. In this instance, the Tribunal does not consider it necessary to determine this issue as it makes no difference as the permissibility of the uses are not relevantly different. Further, the assessment of car parking is not impacted and the distinction does not affect the assessment of the consistency or otherwise the objective of the zone.
35 Clause 4.2 of the Scheme sets out the objective of the General Rural zone, and states:
To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality.
36 It was accepted by the parties, and the Tribunal agrees, that the proposed development does not fall within the definition of 'rural pursuit' as defined under TPS 6 (see paragraph 18). However, the permissibility of uses within the General Rural zone, as designated in the Zoning Table, are wide ranging and include a considerable number of uses that could not be considered as falling with the definition of 'rural pursuit' The use permissibility is as follows:
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37 The fact that the proposed development is not a 'rural pursuit' is not fatal to the application. As articulated by Tribunal in Association of Islamic Dakwah in Western Australia and City of Gosnells [2001] WASAT 80, '[c]onsistent with orderly planning, discretionary uses other than rural pursuits should also be weighed against the zoning objective of retaining the rural character and amenity of the locality'. Such an assessment would also include 'the compatibility of the development with its setting including 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': cl 67(m) of the deemed provisions. The conclusions drawn in respect to issue 2 will determine whether the proposed development is consistent with the stated objective of the General Rural zone.
38 This leads to consideration of issue 2.
Whether the proposed use will have a detrimental impact upon the prevailing amenity of the locality
39 In order to determine whether the proposed development will have detrimental impact on the prevailing amenity of the locality, it is first necessary to determine 'the locality'.
40 Ms Baglin and Mr Hidding agree that the immediate locality could be described as the area shown within the yellow 500 metre radius circle identified on the Aerial Context Plan (Exhibit 12), although Ms Baglin considers that it should extend a little further northwest to Maddington Road. Mr Hidding also identified a broader locality that includes the area bounded by Tonkin Highway to the west, Maddington Road to the north and the Scarp to the south and east which he says more relevantly defines the character of the locality.
41 The term 'locality' is not defined in the Scheme. As the Tribunal observed in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [42]:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
42 The Tribunal considers the 500 metre radius circle as contained on the Aerial Context Plan to be an arbitrary line that does not assist in establishing the character of the locality. This is evident by Ms Baglin's need to include an additional area of land extending to Maddington Road. Further, in oral evidence, she also referred to the lots along Staniland Street informing the character of the locality, some of which fall outside the 500 metre radius circle. The Tribunal prefers the boarder locality as defined by Mr Hidding as it more appropriately reflects the area that relevantly affects or is affected by the proposed development.
43 The term 'amenity' is defined in Sch 1 of TPS 6 as follows:
'amenity' means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
44 As the Tribunal observed in St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [39], the Tribunal is required to undertake 'an objective inquiry as to the character of the area that represents that state of amenity'.
45 Ms Baglin characterised the locality as rural residential in nature with predominantly hobby farm/rural interests. In her witness statement, she described the existing amenity of the locality as follows:
The area on and around Reservoir Road and its intersection with Grant Street retains a high level of rural amenity, with vegetation including vineyards, grasslands, trees and a natural bushland aspect. The area includes large areas of vacant land, orchards, horse paddocks, vineyards and single storey residential properties on relatively large sites. This combination gives the impression of a natural landscape with intermittent residential living being entwined with the landscape to produce a rural living atmosphere[.]
46 As to the likely future amenity of the locality, Ms Baglin did not envisage the character of the locality changing in the future due to the direction of the City of Gosnells Rural Foothills Strategy, which adopts a 1000 meter buffer around the Boral quarry (consistent with State Planning Policy 4: State Industrial Buffer (Amended)) to protect the operation of the quarry and to minimise potential conflict with sensitive uses. It was her view that given the effect of the buffer area of the locality, there was limited potential for change.
47 Mr Hidding accepts that the locality could broadly be described as semirural, although he does not consider it to be a 'high quality, pristine rural residential environment'. He asserts that the eclectic mix of land uses as listed in his witness statement at paragraph 24 and comprising of:
a. Residences in rural setting;
b. Vineyards;
c. Commercial vehicle parking;
d. Karinya sporting oval and Equestrian Facility[;]
e. Wine-selling premises;
f. Boral quarry[;]
g. Austria Club premises;
h. Orange Grove Shooting Association range; and
i. 330kV power transmission lines traversing private properties with 60m easements;
- together with the heavy vehicle movements from the Boral quarry operations, all contributed to the existing fabric of the locality. As to the future amenity of the locality, Mr Hidding expects the locality to remain a Rural zone but that other land use, other than rural pursuits, may be accommodated within the locality due to the influence of industrial area north of Maddington Road.
48 The Tribunal prefers Mr Hidding's assessment of the existing character of the locality as the Tribunal is concerned that Ms Baglin's assessment did not give due consideration to the effects of the nonresidential/nonrural uses, such as the sporting and pony club facilities and the impacts of the Boral quarry operations, on the level of amenity on immediate surrounding locality. As to the likely future amenity of the locality, the Tribunal does not envisage the character of the locality changing significantly in the short to medium term as there is no intention to amend the zoning of the locality, particularly as there is a strategic objective to protect the Boral quarry operations from sensitive land uses.
49 The respondent contends that the proposed development will have a detrimental impact on the prevailing amenity of the locality for the following reasons. Firstly, the scale of operation and the built form of the revised development proposal will have a detrimental impact on the character of the amenity of the locality as the number of people likely to attend the site and the built form of the development is inconsistent with the intensity of development in the locality and exceeds what could reasonably be expected within a ruralresidential area. Further, the respondent maintains, in accordance with LPP 2.8, that the possible future capacity of the building, asserted to be 300 persons, is the appropriate figure to assess the proposal against. This being the case, there would be a requirement of 75 car parking bays onsite. The respondents submits that the building is purposebuilt for the proposed use and whilst that may not be problematic in itself, the respondent is concerned that should the use of this particular place of worship cease, the building will need to be adapted to cater for some other function which may have similar or exacerbated impacts. Secondly, the car parking area will have an adverse visual impact on the character of the locality as it will be highly visible from Grant Street and will detract from the visual amenity of owners of adjoining and adjacent lots to the subject land. Thirdly, the noise from car engines, car doors and patrons when arriving and leaving the venue will have an adverse impact on the quiet amenity of the adjoining properties. Fourthly, the additional traffic, which is non-local in nature, directly relates to peak attendances at specific times (including weekends and public holidays), and coincides with times when local residents seek to take advantage of the rural enjoyment of their properties, will adversely affect the opportunity for residents to enjoy the peaceful amenity of the area and may impinge on horse riding pursuits in the locality. Fifthly, the proposed lighting of the car parking area as well as vehicle headlights will have a negative impact on the amenity of the adjoining properties.
50 The respondent contends that the degree of adverse impacts arising from the proposed development is such that the proposed development does not warrant approval.
51 One of the main objectives of the Tribunal in dealing with matters within its jurisdiction is 'to achieve the resolution of … review decisions, fairly and according to the substantial merits of the case': s 9(a) of State Administrative Tribunal Act 2004 (WA) (SAT Act). Further, the Supreme Court in Falc Pty Ltd and Others v State Planning Commission (1991) 74 LGRA 68 at [79] found, '… it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case.' Although his Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
52 The Tribunal in determining this matter is obliged to focus on the substantial merits of this particular application in light of the planning framework and to produce the correct and preferable decision at the time of the decision upon review: s 27(2) of the SAT Act. The Tribunal is not charged with determining applications that may or may not present themselves in the future.
53 The applicant called Mr Ramesh Narayanaswamy, a member of the Shri Shirdi Sainath Perth Community and Vice President of the Executive Committee, to give evidence about the religious activities and the conduct of the Hindu worship to be carried out at the proposed place of worship.
54 Mr Narayanaswamy explained that worship involves devotee(s), either individually or as family groups, attending the temple and the priest reciting verses to and praying with the devotee(s) for approximately 5 to 10 minutes followed by an 'obeisance' for approximately one minute and then the devotee(s) move to the back of the temple and sit on the floor for about another 10 to 15 minutes in prayer. There is no singing or amplification of music or speech involved in the worship. It is also usual for devotees to bring flowers or food for consecration by the priest to be either taken home after worship or distributed amongst the worshipers.
55 Mr Narayanaswamy clarified that the time period identified for worship allowed devotees to attend at any time during that period; there was no requirement to attend at a specific time. He also told the Tribunal that Saturday evening is the usual day for attendance and the number of devotees attending varies during the year, with February to June being the months of highest attendance. From his understanding of the pattern of attendance, it is expected that for those months approximately 80 persons would attend the temple on Saturday evening, spread over the three hour period.
56 Mr Narayanaswamy explained that the possibility of community participation in meditation and yoga sessions is not intended as a commercial enterprise but as a community service, which stems from the religious philosophy and is an integral component of Shirdi Sai devotion.
57 The evidence of Mr Narayanaswamy was uncontested and the Tribunal accepts his evidence as an account of the conduct and activities to be undertaken at the place of worship.
58 The Tribunal is of the view that the degree of impact of the proposed development on the prevailing amenity of locality is acceptable for the following reasons. Firstly, the built form of the proposed development has been substantially modified from the proposal that was originally considered by the Council, in that the floor area of the building has been reduced by approximately 220m2 and the height of the building has been reduced from 6 metres to 4.3 metres. The design modifications have significantly reduced the bulk and scale of the building so that the appearance of the building is more in keeping with the ruralresidential amenity of the locality. Furthermore, the relocation of 10 car parking bays from the Grant Street frontage to the internal access road, east of the building, has significantly reduced the visual impact of the proposed development. Ms Baglin accepts that this is the case, although she is still concerned that the remainder of the car parking bays along Grant Street, together with the built form will adversely affect the visual amenity of the owners of adjoining and adjacent properties. The Tribunal is of the view that the visual impacts of the second revised proposal are acceptable as the appearance of the development, given that it is a nonresidential/nonrural use, together with the retention of the trees along Grant Street which will soften the visual impact of the development, is in keeping with the character of the locality and can be supported.
59 Secondly, as to whether the intensity of the development is such that the number of people likely to attend the site is inconsistent with the intensity of development in the locality and exceeds what could reasonably be expected with a rural/rural residential area, the Tribunal finds that the agreed restrictions on the hours of operation and the number of persons that can attend a session are sufficient to ensure that the amenity impacts that result as a consequence of the use are acceptable in this locality. The Tribunal found the description of the conduct of worship given by Mr Narayanaswamy to be informative and assisted in the Tribunal understanding the rituals and practices of Shirdi Sai devotion. From this evidence, it is clear that that the session most likely to affect the amenity of the locality is on Saturday between the hours of 6 pm to 9 pm, where a maximum of 100 persons could attend worship at some time during that period. However, in the words of Mr Hidding, the locality in question is 'not a high quality pristine rural residential environment' comprised only of residential living and rural pursuits. This locality consists of various uses including a considerable number of nonresidential and nonrural pursuits, which combine to form the character of the locality. The intensity of uses such as the sporting oval, equestrian facility and the Austria club are not that dissimilar to that of the proposed use, in that the land uses are attractors to the locality. The issue of vehicle headlights impacting on the neighbouring residents has been significantly reduced by modification to the access and egress arrangements and any potential impacts arising from the lighting of the car parking area could be managed by imposing a condition on the approval requiring a car park lighting strategy. Similarly, the concerns raised by the respondent in respect to noise resulting from car engines, car doors and patrons can be managed by the preparation and implementation of a noise management plan. Further, as accepted by Ms Baglin, the additional traffic likely to be generated from the proposed development is relatively minor and is well within the design capacity of the existing road network. On the evidence, the Tribunal is satisfied that the intensity of the development will not adversely affect the ability of the roads to function at their required level of service or pedestrian movements and equestrian activities in the locality. As such, the Tribunal does not consider that the intensity of the proposed use to be such that it will be incompatible with the rural character and amenity of the locality.
60 Given the conclusions reached on this issue, the Tribunal is satisfied that the proposed development is consistent with the stated objective of the General Rural zone.
In light of cl 6.6 of SPP 3.7, whether the proposed development can be approved without the preparation of a bushfire management plan
61 Under s 241(1) of the PD Act, the Tribunal is required to have due regard to any State Planning Policy which may affect the subject matter of an application for review. Furthermore, cl 67(c) of the deemed provisions of the Regulations also identified 'any approved State Planning Policy' as a matter to which the decision-maker is to have due regard in considering an application for development approval.
62 SPP 3.7 is a State Planning Policy made under Pt 3 of the PD Act and provides the foundation for land use planning to address bushfire risk management in Western Australia and is intended to be used to inform and guide decisionmakers, referral agencies and landowners/proponents to help achieve acceptable bushfire protection outcomes.
63 SPP 3.7 is also to be read in conjunction with the deemed provisions contained in the Regulations. The deemed provisions of the Regulations apply to development (or use) and/or the construction of habitable buildings within bushfire prone areas.
64 Both parties called expert witnesses to give evidence in relation to this issue. The respondent called Mr Mike Scott, a Level 3 Bushfire Planning and Design (BPAD) accredited Practitioner and the applicant called Mr Roger Banks, a Level 2 BPAD accredited Practitioner who is undertaking studies to obtain a Level 3 BPAD accreditation.
65 Both experts agreed that the development site is located in a bushfire prone area and that the proposed development is a 'vulnerable land use' as defined in SPP 3.7, that being, '[a] land use where persons may be less able to respond in a bushfire emergency'. Examples of what constitutes a vulnerable land use are given in the Guidelines for Planning in Bushfire Prone Areas (Guidelines) and a Place of Worship is a use specified as a vulnerable land use.
66 SPP 3.7 and clause 5.4 of the Guidelines require all development applications in bushfire prone areas to be accompanied by a Bushfire Attack Level (BAL) assessment. A BAL assessment is required to be prepared in a manner and form set out in the Australian Standard 3959: Construction of buildings in bushfireprone areas (AS 3959) to determine a BAL. The BAL assessment that accompanied the application was prepared by Bushfire Ready Consultants who assessed the development site as being subject to a BAL rating of BAL29.
67 Mr Scott and Mr Banks reviewed the BAL assessment and reassessed the development site, and although there is some disagreement on the classification of certain vegetation and whether certain areas should or should not be excluded from the assessment, both conclude that the BAL rating for the development site is in fact BAL40.
68 AS3959 describes BAL40 as follows:
The risk is considered to be VERY HIGH
There is a much increased risk of ember attack and burning debris ignited by windborne embers, a likelihood of exposure to a high level of radiant heat and some likelihood of direct exposure to flames from the fire front.
69 Clause 6.6 of SPP 3.7 relates to 'Vulnerable or high-risk land uses', and more particularly, cl 6.6.2 of SPP 3.7 relates to areas where BAL40 or BALFlame Zone applies and states as follows:
… development applications for vulnerable … land uses in areas of BAL40 … will not be supported unless they comply with policy measures 6.6.1 and 6.7.2.
70 Both bushfire experts agree that cl 6.7.2 of SPP 3.7 is not a relevant consideration as the development site does not meet the definition of 'unavoidable development'.
71 Clause 6.6.1 of SPP 3.7 pertains to areas where BAL12.5 to BAL29 applies and states that:
… development applications for vulnerable … land uses in areas between BAL-12.5 to BAL-29 will not be supported unless they are accompanied by Bushfire Management Plan jointly endorsed by the relevant local government and the State authority for emergency services[.]
72 To date, no bushfire management plan has been prepared for the development site.
73 The bushfire experts agree that in order for the development to precede the development site is required to achieve a BAL29 or less. Mr Scott told the Tribunal, and Mr Banks agrees, that a bushfire management plan cannot be completed for a vulnerable site if it has a BAL40 rating and that this rating would prevent the development proceeding.
74 Mr Banks held the view that with a bushfire management plan the development site could be managed so that a BAL29 rating could be achieved. He contends that the road reserves could be managed in a low threat state and broken up to comply with AS3959, thereby reducing the bushfire risk to a BAL29. He also concedes that in order to achieve a BAL29 rating, the building would need to be modified so that the setback to the south/southwest boundary of the development site would need to be increased to 9 metres or an agreement reached with the owner of the adjoining property identifying a protection zone.
75 Mr Scott was hesitant to agree that a BAL29 could be achieved for the development site as the road reserves are in the control of a third party, namely the local government, and would need to be managed in perpetuity. He told the Tribunal that the local government would need to place the road reserves on their Management Plan for road reserves and give approval to the bushfire management plan. In regards to the south/southwest boundary of the development site, an agreement would be required with the owner of the adjoining property identifying an exclusion low threat zone that would be required to be kept in perpetuity. This agreement would attach to the fire management plan and a notification placed on the property's title.
76 Both bushfire experts agreed that if there were no agreement with the local government and the owner of the adjoining property to the south/southwest, then the design of the building would require significant modifications as the building would be required to be set back 21 metres from Grant Street and a minimum of nine metres from the south/southwest boundary of the development site. Mr Scott and Mr Banks further agreed that if in undertaking a Method Two assessment it was found that the BAL rating could not be reduced to BAL29 then the development could not proceed and a building licence could not be issued for the development.
77 A further area of disagreement between the bushfire experts was the point of time at which a bushfire management plan should be submitted for approval. Mr Scott referred to cl 6.6.1 of SPP 3.7 which clearly states that a bushfire management plan and evacuation plan is required to accompany development applications for the development of sites defined as meeting the definition of vulnerable land use. It was his view that there may be risks in making the assumption that a bushfire management plan and related evacuation plans will be adequate and capable of implementation after planning approval is given. He considers that they should be properly prepared and assessed, in their entirety, as part of the application. In his oral evidence, Mr Scott articulated that even if the site was assessed as a BAL29, a bushfire management plan needed to be prepared prior to a development approval as key elements of the site, such as location, siting and design, water and access, would need to be addressed, and if one of those elements could not be satisfied then the building could not proceed.
78 Mr Banks, at paragraph 29 of his witness statement, sets out reasons why he considers that it is appropriate in this case, for a bushfire management plan to be provided after development approval is granted. These reasons include:
29.1 the project area has very good access and potential evacuation points;
29.2 onsite and landscape scale potential bushfire risks can be adequately managed;
29.3 the use of the proposed facility is on the lower end of 'vulnerability';
29.4 the proposed facility has very restricted hours of operation and number of attendees allowed at the Site; and
29.5 for a building such as that proposed in this application, by preparing Bushfire Management Plan at building licence stage, there will be sufficient design and level of construction detail to inform where the emergency hydrants, hose reels, emergency must points and confirmed evacuation sites will be located.
79 However, during the hearing Mr Banks agreed that the 'easiest solution', in this case, was the preparation and approval of a bushfire management plan prior to development approval so that all the assumptions and concerns raised as to whether the development site could achieve a BAL29 were resolved. He also conceded that Mr Scott's position was technically correct particularly in this instance because it was a vulnerable landuse and therefore, the Department of Fire and Emergency Services (DFES) and the local government have to sign off on the bushfire management plan.
80 Barker J held in Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002)122 LGERA 433 at [24], 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.
81 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.
82 The Tribunal is not persuaded that there is a cogent reason to depart from the planning principles embodied in SPP 3.7 in the circumstances of this case. The intent of the policy is to 'implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure'. The fact that the proposal is a vulnerable land use and that the BAL rating for the development site is assessed as a BAL40 is compelling. The Tribunal is not convinced, on the evidence, that the necessary measures that will reduce the risk of bushfire to an acceptable level can be implemented and achieved, particularly given that some measures rely on the agreement of third parties. It was clear from the evidence of the bushfire experts that the preparation of a bushfire management plan is necessary, firstly, to establish whether the proposed land use can be approved on the development site and secondly, to determine whether the design and siting of the building is affected by the assessment of the proposal against the bushfire protection criteria.
83 Given the importance of the bushfire management plan in establishing the development potential of this development site to accommodate a place of worship, the Tribunal is of the view that a bushfire management plan should be prepared and approved prior to the issuing of a development approval. In the circumstances of this particular case, the Tribunal does not consider it appropriate to impose a condition on the development approval requiring the preparation and approval of a bushfire management plan prior to the issuing of a building licence for the following reasons. Firstly, the bushfire management plan requires endorsement by third parties, namely the local government and DFES, and there is no certainty in respect to this application given the nature of the development and the BAL rating for the development site that such endorsement will be obtained. Secondly, a condition cannot lawfully defer, for later consideration, a nonincidental aspect of a development and cannot 'leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made' (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at [737] per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. In this case, the approval of a bush fire management plan cannot be considered an incidental aspect of the development as the outcome of the fire management plan is a critical aspect in determining whether the proposed development can proceed. Furthermore, there is no certainty that the design and siting of the proposed building will not be significantly different as a consequence of the bush fire management plan.
84 The Tribunal considers that, in the circumstance of this case, the preparation and approval of a bushfire management plan is a determinative consideration and given the findings of the Tribunal in respect to this issue the proposed development warrants refusal in the exercise of discretion.
What weight should be accorded to draft Scheme Amendment No 172?
85 The respondent at its meeting on 9 August 2016 resolved to initiate a standard amendment to TPS 6 to modify Table 1 (Zoning Table) of the Scheme to change the land use permissibility for the Place of Worship use class in the General Rural zone and the Special Rural zone from 'A' to 'X'. The intent of the amendment is to prohibit Places of Worship in the General Rural and Special Rural zones within the Scheme area of TPS 6.
86 The justification provided in the amendment states as follows:
Places of worship are often built to accommodate large congregations from locations well beyond the local area. Peak activities usually take place on weekends and often during public or religious holidays, thus coinciding with times when local residents seek to take advantage of the rural enjoyment of their properties. Land uses such as Place of Worships [sic] in rural areas can therefore compromise rural lifestyles and the overall amenity of the area. There is a need to ensure that the existing rural amenity is protected and that the objectives of the General Rural zone are maintained.
87 Draft Scheme Amendment No 172 (Amendment No 172) was referred to the Environmental Protection Authority in accordance with s 48 of the Environmental Protection Act 1986 (WA) and s 81 of the PD Act on 29 August 2016.
88 The Tribunal was told that Amendment No 172 was currently being advertised and that the submission period closes on 8 November 2016. Ms Baglin told the Tribunal that she expected the submissions to be presented to the Council at its meeting in December 2016.
89 The respondent included in its evidence a submission from DFES regarding Amendment No 172 (Exhibit 11). DFES in essence supports the amendment and states:
… Large portions of the General Rural and Special Rural zoned land within the City of Gosnells is designated as bushfire prone on the Map of Bushfire Prone Areas. A 'Place of Worship' is considered a vulnerable land use within SPP 3.7 and therefore the proposed amendment will reduce the threat of bushfire to this type of land use by prohibiting it within the zones.
90 As previously mentioned, orderly and proper planning is a relevant consideration in the determination of this development application and as such, cl 67(b) of the deemed provisions require the Tribunal to have due regard to any proposed amendment that has been advertised under the Regulations. Amendment No 172 has been advertised under the Regulation and as such, is automatically a relevant matter for consideration in the exercise of planning discretion and is to be given 'due regard' under cl 67 of the deemed provisions.
91 However, in light of the Tribunal's determination in relation to issue 3, it is unnecessary to consider and express findings in relation to the weight to be accorded to Amendment No 172.
Conclusion
92 Although the Tribunal considers that the proposed development is capable of approval in the General Rural zone and that the degree of impact of the proposed development on the prevailing amenity of the locality is acceptable, the Tribunal is not persuaded that there is a cogent reason to depart from the planning principles embodied in SPP 3.7 and considers that the preparation and approval of a bushfire management plan is a critical aspect in determining whether the proposed development can proceed. Therefore, the Tribunal finds that the proposed development warrants refusal in the exercise of discretion.
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 this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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