Smith and City Of Bayswater
[2006] WASAT 176
•3 JULY 2006
SMITH and CITY OF BAYSWATER [2006] WASAT 176
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 176 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:689/2005 | 4 APRIL 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 3/07/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | KAREN SMITH CITY OF BAYSWATER |
Catchwords: | Town planning Development application Family day care Care of two additional children under schoolage in the family home Refusal Small lots Neighbouring restricted outdoor recreation areas abutting each other Impact on amenity of adjoining properties Council policy on family day care Effect of restrictive covenant against commercial activity Use to be conducted under governmentaccredited family day care scheme Structured care programme Restricted outdoor activity times Normal residential area Noise not considered greater than that of a family |
Legislation: | Children and Community Services (Family Day Care) Regulations 2006 (WA), reg 66 Children and Community Services Act 2004 (WA), s 205(1) City of Bayswater District Town Planning Scheme No 24, cl 1.6(b), cl 2.10, cl 2.10.1, cl 7.2.4 Community Services (Child Care) Regulations 1998 (WA) Environmental Protection (Noise) Regulations 1997 (WA) Planning and Development Act 2005 (WA) |
Case References: | Nil Nil |
Orders | 1. The application for review be allowed.,2. Planning approval be granted for a family day care use at 83 Wright Street, Bayswater, subject to compliance with the following conditions:,(i) The family day care shall operate only in those rooms of the house and outdoor play area as shown on the sketch signed by Karen Smith and date stamped 22 November 2005 by the City of Bayswater and in the remainder of the rear yard.,(ii) The western side setback of the house shall be fenced off and not used for family day care.,(iii) The family day care shall only operate on Monday, Wednesday, Thursday and Friday.,(iv) The family day care shall not operate before 7.30 am or after 5.30 pm.,(v) The family day care shall not involve the care of any more than four children at any time, including the children of the carer.,(vi) Family day care activity with the children in family day care shall only be carried out in the rear yard and patio areas between 9 am and 11 am, and 2 pm and 5 pm.,(vii) Noise generated by the family day care is not to exceed the levels as set out under the Environmental Protection (Noise) Regulations 1997. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SMITH and CITY OF BAYSWATER [2006] WASAT 176 MEMBER : MR J JORDAN (MEMBER) HEARD : 4 APRIL 2006 DELIVERED : 3 JULY 2006 FILE NO/S : DR 689 of 2005 BETWEEN : KAREN SMITH
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning Development application Family day care Care of two additional children under schoolage in the family home Refusal Small lots Neighbouring restricted outdoor recreation areas abutting each other Impact on amenity of adjoining properties Council policy on family day care Effect of restrictive covenant against commercial activity Use to be conducted under governmentaccredited family day care scheme Structured care programme Restricted outdoor activity times Normal residential area Noise not considered greater than that of a family
(Page 2)
Legislation:
Children and Community Services (Family Day Care) Regulations 2006 (WA), reg 66
Children and Community Services Act 2004 (WA), s 205(1)
City of Bayswater District Town Planning Scheme No 24, cl 1.6(b), cl 2.10, cl 2.10.1, cl 7.2.4
Community Services (Child Care) Regulations 1998 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
Applicant : Ms F Lefante
Respondent : Ms S Taylor
Solicitors:
Applicant : As Agent
Respondent : As Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 Mrs Karen Smith applied to the City of Bayswater for planning approval to conduct a family day care use at her home at 83 Wright Crescent, Bayswater. The use would be operated under the "Lyla Elliott Family Day Care Scheme". Mrs Smith proposed the care of four under schoolage children, two of which would be her own, for four days a week.
2 The City of Bayswater refused the application because it considered that the noise associated with family day care would adversely affect the amenity of the adjoining neighbours. The neighbours to the rear and to the west said that the proposed use would adversely impact on their capacity to quietly enjoy their homes because the yard at 83 Wright Street was too small and too close to their external and internal living areas.
3 The applicant advised that under the family day care scheme she would receive training in how to conduct the use and would have a structured program restricting hours of outdoor play.
4 The Tribunal noted the proximity of the yards of the neighbouring houses, but came to the conclusion that a properly structured and conducted family day care for not more than four children would not have an impact significantly different from what would normally be expected in a residential location.
5 The Tribunal determined that the proposed family day care could be granted conditional approval.
Introduction
6 This is an application by Ms Karen Smith (applicant) for review of the decision by the City of Bayswater (respondent) to refuse her application for planning approval to conduct a family day care in her home at Lot 8 (No 83) Wright Crescent, Bayswater (subject land).
The locality
7 Wright Crescent is in a discrete residential locality bounded to the east by Tonkin Highway, to the south by open space on the Swan River foreshore, to the west by regional and public open space, and to the north by Gobba Lake. The area is being subdivided as "Riverside Gardens" and the subject land and neighbouring lots are of similar size.
(Page 4)
8 Adjoining the subject land to the west is 81 Wright Crescent, which has its main outdoor seating area at the northeast corner of the house against the boundary with the subject land. Adjoining to the rear is 89 Wyatt Road, which faces northeast but is designed with an outdoor area off living rooms between what is the side boundary of that lot and the rear boundary of the subject land.
The subject land
9 The subject land has an area of 407 square metres and a width of about 15.8 metres. The house on the subject land faces south and is set back 1.5 metres from the western boundary and 1.0 metre from the eastern boundary. At the rear, two bedrooms and a laundry are 2.5 metres from the rear boundary, and a patio at the northeast corner adjacent to a family room has a depth of about 6.5 metres from the rear boundary and a width of about 6.0 metres from the side boundary. The total outdoor area at the rear is about 65 square metres.
The proposed use
10 The applicant proposes to operate a family day care under license to and the supervision of the Lyla Elliott Family Day Care Scheme. The application was for family day care of four children, two being the applicant's two under schoolage children. The family day care would operate four days of the week: Monday, Wednesday, Thursday and Friday. There would be no children before 7.30 am and none after 5.30 pm.
11 The application sketch showed that, in the house, the family day care would involve the use of the lounge room as a play room, the home theatre for "rest time", three of the four bedrooms as sleeping rooms, the dining area for eating, and the family room as an activity room. The backyard and patio area off the activity room would be the outdoor play area.
12 The applicant submitted that the family day care would operate a structured and supervised programme tailored to the age and stage of development of the children. A typical programme would include indoor activity, perhaps including breakfast, from when children arrive until 9 am. Supervised, structured play in the yard or an excursion would then follow. Morning excursions might be play at a local park, or if it suited the children, Wednesday playgroup, Thursday playgroup at the Lyla Elliot Family Day Care Scheme building or Friday story time at the library. Sun smart principles required no outdoor activity between 11 am and 2 pm.
(Page 5)
- During this period would be lunch and a quiet time or sleep if appropriate, indoors. After 2 pm would be gross motor skills in a local park and sometimes play in the yard. The specific activities would vary within this structure depending upon the weather and the interests of the particular children. While a specific programme could not be nominated as it is not known what age and stage of development the children would be, the Tribunal noted that this programme provided a clearer structure than that originally provided to the respondent.
Planning controls
13 The subject land and surrounding lots are zoned "Residential" with a density coding of R 17.5/25 in the respondent's District Town Planning Scheme No 24 (TPS 24). Under "Interpretations" in Appendix 1 of TPS 24, it states:
"Family Day Care: means premises used to provide family day care within the meaning of the Community Services (Childcare) Regulations 1998, but does not include a Child Day Care Centre."
14 Under "Interpretation" in the Community Services (Child Care) Regulations 1988, it stated:
"'family day care' means a child care service provided to a child in a private dwelling in a family or domestic environment."
15 To note is that the Community Services (Child Care) Regulations 1998 have been repealed. Relevant to this matter, under s 205(1) of the Children and Community Services Act 2004 (WA) (CCS Act), a licence can be issued for a specified type of child care. The Children and Community Services (Family Day Care) Regulations 2006 (Regulations) set out the requirements when applying for a licence to conduct a family day care and requirements for the operation of a family day care. The licence can be subject to conditions, including the number of children being cared for.
16 Family day care is not listed in the use classes of Table 1 Zoning Table of TPS 24. Applications for this use are processed as a "use not listed" under cl 7.2.4. The respondent has adopted Policy No TP - P 3.3 Family Day Care (Lyla Elliot[t] Scheme) (the Policy) for the purposes of assisting in the assessment of applications for family day care.
17 The Policy states:
(Page 6)
- "1. Prior to an application being lodged with the City of Bayswater, the application must be submitted through the Lyla Elliot[t] Family Day Care Scheme and that scheme has advised that they support the proposal.
2. Letters of nonobjection to the proposed use must be submitted from all adjoining landowners.
3. The proposal for a 'Family Day Care' shall not involve the care of more than four children at any time, including the children of the carer that are not of school age.
4. An application for a Family Day Care must meet the planning and environmental health requirements of the City.
5. As applications to operate a Family Day Care from a property with a swimming pool are not considered eligible under the Lyla Elliot[t] Scheme, the Council shall consider applications for a family day care in such circumstances separate from the Lyla Elliot[t] Scheme."
The refusal
18 The respondent refused the application for the reason:
"The existing and likely future amenity of the neighbourhood, in particular the immediate adjoining neighbours, will be adversely affected by noise associated with the proposed Family Day Care."
The respondent's position
19 The respondent called as witnesses Cr Alan Radford and Ms Francesca Lefante, the Director of Planning and Development Services for the respondent. It was the respondent's submission that the proposed use was a form of business/home occupation because income would be derived from caring for the two additional children. This was seen as the primary difference between the proposed use and having a family of four children reside at the house.
20 Ms Lefante said that as the use was considered a business, the respondent considered it important to gauge the impact the proposal would have on the adjoining residences. She referred to the objective of
(Page 7)
- TPS 24 at cl 1.6(b) which is "To secure the amenity, health, and convenience of the Scheme Area and the inhabitants thereof".
21 Cr Radford said the benefits of the proposed use had been carefully weighed against the submissions made by the neighbours. The conclusion reached was that because of the smaller sized lots and limited play space, noise would be readily transferred from the subject land to the neighbouring yards such that there would be a negative impact on the ability of the neighbours to enjoy their outdoor living areas. The respondent had refused the application because it considered the impact on the amenity of the neighbours was unacceptable.
22 The respondent called as witnesses the neighbours at 81 Wright Crescent adjoining to the west, Mr Robert Rogers and Ms Audrey Bowran, and the neighbours adjoining to the north, Mr John Doyle and Mrs Margaret Doyle of 89 Wyatt Road.
23 Mr Rogers and Ms Bowran made separate submissions. Both believed the proposed family day care use would have a large impact on their daily life due to the noise it would generate, the size of the lots and the proximity of the back areas one to another. Both said they were retired and had chosen to move to this location because it was peaceful and the small lot suited their requirements at this time of their lives. Mr Rogers said he often used a room opening on to their outside area for his hobby of painting. It is necessary that he have his studio doors and windows open because of the materials, and he said that from past experience, noise from children next door was very distracting and disruptive both when he was working and also when resting during the day.
24 Mr Rogers and Ms Bowran both referred to the deed of restrictive covenants, disclosed to them when purchasing their property, which stated that properties in Riverside Gardens shall not be used for any business activity. This, they said, was a clear intention that the area was to be residential only and they never envisaged the use proposed could happen.
25 Ms Bowran said she used the small outdoor living area extensively. In her experience of having grandchildren at her house, outdoor activity can be noisy and even dangerous because of the small size of the rear yard.
26 Mr John Doyle and Mrs Margaret Doyle have a southern side boundary common with the rear boundary of the subject land. They too made individual submissions, with both saying that they also had chosen
(Page 8)
- the locality for its tranquil surroundings. They had both been made aware of the restrictive covenant, which they said had given them "peace of mind", and had designed their house in the belief that the area would remain residential.
27 Mr Doyle said their outdoor retreat area was only about 30 square metres and immediately abutted the outdoor area of the subject land. There was just the dividing fence between them and so they would be effectively sharing their outdoor area with the several children in family day care. The doors of their living area were less than 3.0 metres from the fence, and the noise experienced from next door would be distressing.
28 Mr and Mrs Doyle both said they had experienced discomfort when in the past additional children were visiting next door. Mrs Doyle gave evidence of a chronic spinal condition that requires her to sit for lengthy periods, and her circumstances meant she could not cope with excessive noise. She said she treasured a peaceful, quiet atmosphere and spent a great deal of time in the outdoor retreat or the living room adjacent.
29 Mr Doyle advised that he was a permanent shift worker which necessitates sleeping during the day on average two working weeks out of three. He believed the noise from next door would interfere with his sleep after evening and night shift.
30 Mr and Mrs Doyle both submitted that they considered that the lots were too small and the outdoor areas of the subject land and their own were too close for a family day care. Mr Doyle believed that the family day care would create unreasonable noise for an ongoing and undefined duration, to the extent that the noise would interfere with his health, welfare, comfort, and amenity. He believed that the use of their outdoor retreat would become limited to evenings and weekends. Mrs Doyle submitted that she should not have to forfeit her lifestyle in order for Mrs Smith to earn an additional income.
The restrictive covenant
31 The restrictive covenant referred to by the objectors stated that a registered proprietor shall not:
"Use any part of the Land in any way (either directly or indirectly) for any business, commercial, manufacturing, mercantile, storage, vending or nonresidential use."
(Page 9)
32 The deed also stated that "the restrictive covenants shall expire and cease to have effect from and including 31 December 2008".
33 Ms Lefante said the respondent became aware of the restrictive covenant, but had determined the matter on its planning merits in accordance with the provisions of TPS 24. In respect of restrictive covenants, cl 2.10 of TPS 24 provides for the processing of applications where there is a restrictive covenant, stating, relevantly:
"2.10 RESTRICTIVE COVENANTS
2.10.1 Subject to the provisions of subclause 2.10.2, a restrictive covenant affecting any land in the Scheme Area whereby or the effect of which is that the number of residential units that may be constructed on the land is limited or restricted to a number less than that permitted by the Scheme, is hereby extinguished or varied to the extent that it is inconsistent with the provisions of the Residential Design Codes which apply under this Scheme.
2.10.2 Where subclause 2.10.1 operates to extinguish or vary a restrictive covenant the Council shall not grant planning approval to the development of the land which would but for the operation of subclause 2.10.1 have been prohibited unless the application has been dealt with as an [sic] 'D' or 'A' use and has complied with all of the advertising requirements of subclause 3.3.2.
The applicant's position
35 Ms Sandra Taylor, then from Lyla Elliott Family Day Care Association (Inc), supported the applicant in her application to the
(Page 10)
- respondent and acted as her agent in the proceedings before the Tribunal. Ms Taylor explained that the proposed family day care use would operate under license from the "Lyla Elliott Family Day Care Scheme", one of 20 Commonwealthfunded family day care schemes in Western Australia. Funding was used to monitor, support, resource and provide training for a network of family day care providers "in order to provide accessible, affordable, quality home based child care".
36 If the applicant satisfactorily completed training, she would be granted a trial membership for six months. If then still performing satisfactorily, a two year full membership would be granted. The applicant would have to comply with the Scheme Care Provider Membership Agreement and the Carer Policy Manual, which include standards for and guidance on the operation of a service.
37 Ms Taylor said Lyla Elliott Family Day Care would also assist the applicant in her application for a family day care licence issued under the CCS Act. That licensing authority concentrated on the physical arrangements of the property, although Ms Taylor said her organisation considered the applicant's home lent itself to family day care use and would support the applicant in her application for a license under the CCS Act.
38 The applicant said her application for a licence under the CCS Act would be for a licence with a condition restricting the number of children consistent with the respondent's policy. With a family day care service, play would be more structured and supervised than would be the case with her children and their visiting friends. She described how the outdoor area would not be an area of continuous play and she would block off the western side setback of the house to keep the children further away from the outdoor area of 81 Wright Crescent. The applicant said she could not understand how four young children playing for only short periods in a structured way could have an adverse effect on the neighbours. She submitted that there would be no comparison between the noise of the children and the noise allowed under the noise regulations.
39 Mrs Smith said that family day care as proposed would provide places for children in a home environment in the locality where there is demand for alternatives to large group child care. It would also assist her family's financial circumstances and enable her to meet the needs of her own children.
(Page 11)
Comment
40 It is not the concern of the Tribunal in these proceedings to attempt to predict what might be the outcome of the applicant's licence applications under the Lyla Elliott Family Day Care Scheme and CCS Act. What is relevant in relation to the licences is that the applicant is required to operate the family day care service and implement a programme for the children in her care to the requirements and standards of both licensing bodies and the Regulations. Ms Taylor explained that this will not just be children gathering at the house, but will be an organised family day care for which the applicant will receive training and be required to comply with appropriate standards of care. Each home of a provider is visited on a regular basis and the Coordination Unit provides additional training sessions and play sessions.
41 Ms Taylor said that inspections and monitoring will ensure the standard of care, management and reporting requirements for the family day care were maintained, otherwise the licences would be forfeited. Ms Bowran emphasised that there was no requirement under the licences or Regulations for checking on the impact a family day care was having on the neighbours, and no mechanism for acting on complaints from neighbours. Ms Taylor said that if there were any complaints, officers would work with Mrs Smith to address them because the Lyla Elliott Family Day Care Scheme was concerned for its reputation.
42 The applicant had indicated that, at a later date when her children were at primary school, she would seek to vary her licence to have additional places. The objectors were concerned that there was nothing to prevent her applying for the maximum allowed seven places. Ms Bowran, who had a clear understanding of the Community Services (Child Care) Regulations 1998, also pointed out that additional pre schoolage children can be present on an occasional or casual basis if properly supervised (now reg 66).
43 Ms Taylor included with her witness statement an information sheet from the Department for Community Development (Department). This sheet advised that a family day care provider may be licensed to care for up to seven children. The Department can approve a licence with a condition for fewer than seven children and the licensed child numbers will be displayed as a licence condition on a family day care licence. Children of the licensee who have not yet commenced Year 8 of high school may be at the place during a care session, but if present, must be counted in child numbers.
(Page 12)
44 The applicant advised that she would be applying for a licence under the CCS Act with a condition restricting the service to four children. This Tribunal cannot, of course, place a restriction on what a person might apply for under the CCS Act. The Tribunal can, however, impose a planning condition on a family day care restricting the number of children to, for example, a number consistent with the respondent's policy.
45 If the applicant were to have a variation to the licence under the CCS Act approved, this alone would not be sufficient to enable the applicant to change the family day care service. The conditions of the planning approval must still be complied with or there will be a breach of TPS 24 and action can be taken. A planning application for a different number of children would have to lodged and determined in the usual way.
46 The objecting neighbours were asked whether they had an unrealistic expectation of quiet, given that this was a normal residential area with small lots but family sized houses not specifically designated for retired persons. The reply was that the proposed use was an unexpected commercial activity, and noise would be in excess of what would be normal residential use. Mr Doyle was of the opinion that children not in their own family environment would make more noise than the same number of members of one family, who would be preoccupied with personal and family matters and therefore more subdued.
47 There is no dispute that child care places are in demand and the Commonwealth and State Governments have committed to family day care as a method of providing the places. There was no dispute that the proposed use complied with the Policy, other than that letters of objection had been received from adjoining neighbours. Impact on neighbours is a planning concern, so the question for the Tribunal is whether it would be appropriate to grant planning approval for a family day care on the subject land.
Conclusion
48 The subject land is just 407 square metres and the neighbouring lots are of similar size. The outdoor areas of the subject land and the neighbouring lots are limited in size and close to each other. The Tribunal notes, however, that a family day care service does not have random or continuous outdoor activity. The children would be cared for within a structured programme suitable for their age and stage of development, and this includes indoor sessions and, on occasion, sessions off site.
(Page 13)
49 The applicant has two children under school age. An application for four family day care places would add two additional children. The use is a business, but that also brings with it a structure and the potential for planning controls. The Tribunal has concluded that this number of children in a family day care would not add significantly to the level of noise a family would otherwise make in a residential locality such as this.
50 The Tribunal has therefore decided to grant a planning approval for a family day care service on the subject land, consistent with the numbers in the respondent's Policy, for the days identified in the application and with programme hours consistent with those explained by the applicant.
Orders
1. The application for review be allowed.
2. Planning approval be granted for a family day care use at 83 Wright Street, Bayswater, subject to compliance with the following conditions:
(i) The family day care shall operate only in those rooms of the house and outdoor play area as shown on the sketch signed by Karen Smith and date stamped 22 November 2005 by the City of Bayswater and in the remainder of the rear yard.
(ii) The western side setback of the house shall be fenced off and not used for family day care.
(iii) The family day care shall only operate on Monday, Wednesday, Thursday and Friday.
(iv) The family day care shall not operate before 7.30 am or after 5.30 pm.
(v) The family day care shall not involve the care of any more than four children at any time, including the children of the carer.
(vi) Family day care activity with the children in family day care shall only be carried out in the rear yard and patio areas between 9 am and 11 am, and 2 pm and 5 pm.
- (vii) Noise generated by the family day care is not to exceed the levels as set out under the Environmental Protection (Noise) Regulations 1997.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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