SNS CUSTODIAN NOMINEES PTY LTD and CITY OF BUNBURY - [2024] WASAT 45

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   SNS CUSTODIAN NOMINEES PTY LTD and CITY OF BUNBURY [2024] WASAT 45
MEMBER:   MS M CONNOR, MEMBER
MS R LAVERY, MEMBER

HEARD: 24, 25, 26 AND 27 OCTOBER 2023 AND 25 JANUARY 2024
WRITTEN SUBMISSIONS RECEIVED ON 5 FEBRUARY 2024 AND 8 FEBRUARY 2024

DELIVERED          :   9 MAY 2024
FILE NO/S:   DR 231 of 2022
BETWEEN:   SNS CUSTODIAN NOMINEES PTY LTD
Applicant
AND
CITY OF BUNBURY
Respondent

Catchwords:

Town planning - Development - Child care premises - Noise - Adequacy of the number of bays provided - Functionality of car park - Landscaping - Built form - Height - Setbacks - Building footprint - Compatibility with its setting - Amenity - Conditions

Legislation:

City of Bunbury Local Planning Scheme No 8, cl 7(2), cl 16, cl 17, cl 34, cl 34(1), cl 36, cl 40, cl 41, cl 41(1), cl 43, cl 43(1), cl 43(2), cl 43(4), cl 43(5), cl 49
City of Bunbury Local Planning Strategy
City of Bunbury Town Planning Scheme No 7
Environmental Protection (Noise) Regulations 1997 (WA), Sch 3, cl 1, cl 2(1), cl 2(2A),
Greater Bunbury Region Scheme
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 16A
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, Div 2, cl 1, cl 3, cl 3(5), cl 4, cl 64, cl 67, cl 67(2), cl 67(2)(b), cl 67(2)(m), cl 67(2)(n), cl 71
Planning and Development Act 2005 (WA), s 241(a), s 252(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Application for review allowed
Decision of respondent set aside and a decision substituted

Category: B

Representation:

Counsel:

Applicant	:	Mr M Flint
Respondent	:	Mr A McGlue

Solicitors:

Applicant	:	Flint Legal
Respondent	:	Lavan

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 11
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
Sharon Properties Pty Ltd and the Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63:
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

SNS Custodian Nominees Pty Ltd (applicant) seeks review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Bunbury (City, Council or respondent) on 29 November 2022 to refuse to grant development approval for a child care premises at No 88 (Lot 1) Beach Road, Bunbury (subject land or site).
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of them in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to grant development approval for the proposed development under the City of Bunbury Local Planning Scheme No 8 (LPS 8 or Scheme) subject to 21 conditions set out in Attachment A to these reasons.

Subject land

The subject land is more particularly described as Lot 1 on Diagram 5380 being the whole of the land contained in Certificate of Title Volume 1121 Folio 6 and is 905m² in area.
The site is located within the street block extending from Spencer Street to the east and Karri Street to the west and is situated on the northeastern corner of Beach Road and Karri Street. The site is vacant as a timber, single residential cottage circa 1920's and associated structures has recently been demolished.

Proposed development

On 22 June 2022, the applicant applied for development approval for the construction of a child care premises on the subject land.
The development application, together with additional supporting information, was advertised in accordance with cl 64 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) and a total of 49 submissions were received objecting to the proposed development.
The development application was presented to the Council at its meeting of 29 November 2022, with a recommendation for conditional approval by the City's assessing planning officers. However, the Council resolved to refuse to grant development approval for the proposed development for the following reason:
The application is not conducive to the amenity of the area and is not consistent with the heritage area.
On 22 December 2022, the applicant sought review by the Tribunal of the Council's decision and seeks an order that the respondent's decision be set aside and a decision substituted granting development approval to the proposed development subject to appropriate conditions.
On 28 July 2023, the Tribunal granted the applicant leave to amend the plans the subject of this review, which included, amongst other things, the removal of a crossover on Karri Street, modification to the car parking layout, and consequential reconfiguration of other design elements (July 2023 plans).[1]
[1] The witness statement of Gary Miller Fitzgerald (Exhibit 21) at para 9 details all the changes incorporated in the amended plans.
The amended development application, before the Tribunal, proposes the construction of a two-storey building with its entry point and under croft parking accessed off Beach Road. The car parking layout provides for seven parent drop off bays, an ACROD bay, a delivery bay, and 10 staff bays (six in a tandem configuration). Two external play areas adjacent to Karri Street are proposed, consisting of a 230m²outdoor play area on the ground floor and a 264m²outdoor play area located on the first floor.
According to the draft Operational Plan of Management it is intended that the proposed child care premises will cater for three different age groups (0-2 years – 12 children; 2-3 year olds – 15 children; and 3+ year olds – 40 children) with a maximum limit of 67 children at any one time and 11 staff (10 primary care staff and one chef) operating on weekdays between the hours of 6.30 am to 6.30 pm Monday to Friday, with children arriving from 7.00 am.[2] It is also intended that a maximum of 15 parent/teacher information sessions and a maximum of 15 teacher training/staff meetings per annum will be held after hours between 6.30 pm and 8.30 pm.
[2] Respondent's s 24 Bundle of Documents dated and filed on 28 August 2023 (Exhibit 3) pages 109-133.
At the commencement of the final hearing (hearing) the applicant sought leave to substitute amended plans dated 17 October 2023 (October 2023 plans) in response to the draft without prejudice conditions 5A and 5C, as well as tendering two supplementary witness statements addressing the further amended plans.[3] Mr Garry Miller Fitzgerald, a town planning consultant called on behalf of the applicant, detailed the changes to the further amended plans as follows:
Redesign of the northwest corner boundary/Street fencing/wall incorporating a 1.5m x 1.5m truncation in the wall.
A combination of a reduction in height of the limestone boundary wall/fence in the southwest corner of Karri Street and Beach Road to a height of 1.8m as measured from the natural ground level of 9.88m and a reduction in finished ground level of the children's play area in the southwest corner of the Lot to a lowest level of 10m which ensures that the maximum height of the wall/fence when viewed from Karri Street and Beach Road is 1.8m.
On Karri Street the wall/fence reduces from a maximum of 2.4m in height to a maximum of 1.8m in height for a length of 7.2m.
On Beach Road the wall/fence reduce from a maximum of 2.4m in height to a maximum of 1.8m in height for the length of 10m.
[3] Supplementary Witness Statement of Timothy Campbell Reynolds dated 19 October 2023 (Exhibit 18) and Supplementary Witness Statement of Gary Miller Fitzgerald dated 19 October 2023 (Exhibit 22).
The respondent opposed the leave application on procedural grounds rather than substantive grounds. The respondent argued that the July 2023 plans form the basis of the parties' statement of issues, facts and contentions, the bundle of documents, the primary witness statements and the draft conditions and the consequence of granting leave to substitute the plans would be that nearly every exhibit received by the Tribunal will be referring to a superseded set of plans. Further, the respondent also raised procedural fairness concerns relating to the lateness of the leave application causing prejudice as the parties had prepared on the basis of the July 2023 plans and that the respondent's planning expert 'might not have had a chance to properly digest the new information'.[4] Notwithstanding, the respondent did concede that the October 2023 plans would satisfy proposed draft conditions 5A and 5C if these conditions were imposed.
[4] ts 5, 24 October 2023.
The Tribunal dismissed the leave application but marked as exhibits the supplementary witness statements of Mr Gary Fitzgerald and Mr Timothy Reynolds which attached the October 2023 plans, enabling the parties the opportunity to address the proposed modifications in the context of the draft without prejudice conditions during the course of the hearing.

Planning Framework

The subject land is zoned 'Urban' in the Greater Bunbury Region Scheme (GBRS) and is zoned 'Mixed Use – Residential' with a density coding of R20/40 under LPS 8.
Despite the subject land being zoned in the GBRS, the proposed development does not require development approval under the GBRS.[5]
[5] Refer to Resolution under clause 27 of the GBRS, Res 2014/03 (Government Gazette, Western Australia, 9 May 2014)
LPS 8 is comprised of the Scheme Text; the deemed provisions; the Scheme Map (sheets 1-13); and the plans, maps, diagrams, illustrations or materials – Map A and B. To the extent of any inconsistency between a deemed provision with another provision of LPS 8, the deemed provision prevails, and the other provision is, to the extent of the inconsistency, of no effect.[6] Further, pursuant to cl 7(2) of LPS 8 the Scheme is to be read in conjunction with the City of Bunbury Local Planning Strategy (Jan 2018) (LP Strategy).
[6] Section 257B(3) of PD Act.
Clause 16 of the Scheme sets out the objectives of the Mixed Use – Residential zone, which states:
•To facilitate development of residential and non-residential land uses in strategic locations that complements the hierarchy of designated activity centres, including the Mixed Use - Commercial Zone, with a predominantly residential character and amenity that meets both the medium to higher density housing and employment needs of the city.
•To facilitate the development of walkable and vibrant places:
.with a distinctive sense of place that maintains a high standard of urban design and amenity;
.with a land use mix appropriate to the role and functions of the locality in supporting desired economic and social activity that services the needs of predominantly residents; and
.with provision of greater transit oriented development that supports the viability of public transport and other infrastructure.
To ensure that the scale of development and intensity of land use activity does not generate nuisances detrimental to the health, welfare and safety of residents and transitions sensitively into surrounding residential areas.
There is no dispute that the category of land use being applied for is 'Child care premises' which is defined as follows:[7]
Child care premises means premises where-
(a)an education and care service as defined in the Education and Care Services National Law (Western Australia) section 5(1), other than a family day care service as defined in that section, is provided; or
(b)a child care services as defined in the Child Care Service Act 2007 section 4 is provided.
[7] Part 6 – Terms referred to in Scheme: cl 49 of LPS 8.
Clause 17 of the Scheme provides for a Zoning Table which indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones. Child care premises is designated an 'A' use in the Mixed Use – Residential zone in Table 3 - Zoning Table of the Scheme. A class 'A' use is not permitted in the Mixed Use – Residential zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with cl 64 of the deemed provisions. As noted above, the application was advertised and a total of 49 submissions objecting to the proposed development were received.
Clause 34 of LPS 8 relates to Environmental, Public Health and Amenity Protection. Of particular relevance, cl 34(1) provides that '[t]he emission of noise … that may potentially impact on environmental and/or public health are to be mitigated within the boundaries of the premises and must not impact on public health and/or cause nuisance to users or occupants of adjoining premises' set outs provisions relating to environmental, public health and amenity protection.
Clause 36, together with Schedule 5 – Additional Zone Development Requirements Table (Table 8) of LPS 8 sets out the following relevant requirements for Non-Residential Development in the Mixed Use – Residential zone:
Schedule 5 – Additional Zone Development Requirements Table
Table 8 – Additional Zone Development Requirements Table

Zone

Front Setback

Side and Rear Setbacks

Other requirements

Mixed Use – Residential zone

Non- Residential Development:

(a) Minimum 2m.

(b) Upper floor balconies must be located entirely behind the 2m front setback line.

(a) Minimum nil (0m) for ground floor and first floor, except where required to provide access for parking.

(b) Where the development adjoins the Residential zone, setbacks are at the discretion of the local government, having regard to any local planning policy.

Floor Space Restrictions: Maximum net lettable area (nla) per lot (including a strata or survey strata lot):

• Office - 200m²; and

• Shop - 300m².

Drive through facilities are not permitted.

Clause 40 of LPS 8 requires that the primary and secondary front street setback areas and other setback areas not used for access, parking and/or waste management are to be landscaped in accordance with the provisions of the relevant local planning policy and Schedule 5.
Clause 41, together with Schedule 4 – Car Parking Table (Table 7) of the Scheme sets out the minimum number of car parking bays required for each land use class specified within the Scheme area. The minimum number of car parking bays required for Child Care Premises is:
.1 bay per 10 children the premises is designed and approved to accommodate; plus
.1 bay per employee.
Clause 43 of LPS 8 provides discretion to approve an application for development approval that does not comply with the additional site and development requirements, as defined in subclause (1),[8] subject to a number of preconditions.
[8] Additional site and development requirements mean requirements set out in clauses 26, 27, 28 and 34 to 42 inclusive: cl 43(1).
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government (and the Tribunal on review) is to have due regard to a range of specified matters to the extent that, in the opinion of the decisionmaker, those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of LPS 1 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy; (subclause (c));
•any local planning strategy for this Scheme endorsed by the Western Australian Planning Commission (Commission) (subclause (fa));
•any local planning policy for the Scheme area (subclause (g));
•the compatibility of the proposed development with its setting, including desired future character and its relationship with adjoining land or on other land in the locality (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•whether adequate provision has been made for the landscaping of the land to which the application relates (subclause (p));
•the adequacy of the proposed means of access to and egress from the site and arrangements for the loading and unloading, manoeuvring and parking of vehicles (subclause (s));
•the amount of traffic likely to be generated by the development and the probable effect on traffic flow and safety (subclause (t));
•the history of the site (subclause (w));
•the impact of the proposed development on the community as a whole notwithstanding the impact of the proposed development on particular individuals (subclause (x));
•any submissions received on the application (subclause y); and
•any other planning consideration the local government considers appropriate (subclause zb);
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme area. The respondent relied on the following two policies adopted pursuant to cl 3 of the deemed provisions, being:
•City of Bunbury LPP-3 Local Planning Policy for Zone Development Requirements (LPP 3); and
•City of Bunbury LPP-5.4 Local Planning Policy for NonResidential Development Adjoining Residential Development (LPP 5.4);
The respondent also relies on the City of Bunbury Local Planning Policy 3.1 - Access and Parking for Pedestrians, Bicycles and Vehicles (LPP 3.1). According to the document, LPP 3.1 was adopted on 30 November 2010 and 'made under section 2.1' of the City of Bunbury Town Planning Scheme No 7. During the course of the hearing Mr McGlue, counsel for the respondent, informed the Tribunal that 'there had not been any wholesale update since [its adoption in 2010].[9]
[9] ts 56, 25 October 2023.
The parties also referenced the following state planning documents:
•State Planning Policy No 7 – Design of the Built Environment (SPP 7);
•Bulletin 72/2009 – Child Care Centres (Aug 2009) (Bulletin 72); and
•Draft Position Statement – Child Care Premises (Nov 2022).

Issues

The parties formulated the sole issue for determination in this matter as follows:
Should development approval be granted for the proposed "child care premises" at 88 Beach Road, Bunbury …, having regard to the likely impact of the proposed development on the amenity, streetscape and character of the locality (and, if so, on what conditions)?
In closing submissions, the respondent further distilled the issue into subheadings which included land use permissibility, noise, carparking, built form, character and amenity.
The Tribunal is required by the statutory framework to determine whether to grant development approval with or without conditions or to refuse the development application. This is not an issue. The formulation of issues by the parties should focus on clearly identifying the real and determinative issues in the proceedings. Expressing the issue as '[h]aving regard to the impact of the proposed development on the amenity, streetscape and character of the locality', which are matters to be given due regard to under cl 67(2) of the deemed provisions, is nebulous and does not extract the crux of the issues in dispute.

The counsel for the respondent in closing submissions proceeded to argue it's case on the following basis:
(i)Technical matters relating to noise, parking and landscaping have not been satisfactorily addressed and as such the impacts arising from these technical matters will adversely impact upon the amenity, streetscape and character of the locality; and
(ii)The built form of the proposed development will adversely impact on the amenity, streetscape and character of the locality.
(iii)Is the proposed development compatible with its setting and amenity of the locality.
The Tribunal will address each of these issue in turn.

Technical matters relating to noise, parking and landscaping have not been satisfactorily addressed and as such the impacts arising from these technical matters will adversely impact upon the amenity, streetscape and character of the locality

Mr Stephen Geoffrey Allerding, who is a consultant town planner with 30 years' experience, was called to give evidence by the respondent. After reviewing the proposed development in light of the applicable planning framework Mr Allerding concluded that a child care premises is an appropriate use of the subject land having regard to mixed use zoning of the site, its location relative to other commercial development in the area and the general suitability of the location subject to the resolution of outstanding matters relating to noise, traffic and parking, landscaping and waste management treatments.[10]
[10] Witness Statement of Stephen Geoffrey Allerding dated 4 October 2023 (Exhibit 10) para 113.
The respondent contends that these technical matters have not been satisfactorily addressed and that the shortcomings in relation to traffic and parking, noise and landscaping will adversely impact on the amenity, streetscape and character of the locality.
It is accepted that the original planning, acoustics and traffic reports that accompanied the development application lodged with the respondent have largely been superseded by the witness statements filed in this proceeding.
During the course of the hearing, the Tribunal heard expert evidence from Mr Reynolds, who is a qualified Engineer and Managing Director of Herring Storer Acoustics with over 25 years' experience as an acoustic consultant, Mr Paul Nguyen, a traffic engineer with over eleven years' experience, Ms Gemma Dewar, who is a heritage planner and consultant with over 20 years' experience, Mr Vadim Boyko, an architect with 10 years' experience, and Mr Fitzgerald, a town planner with over 20 years' experience working in both local government and private practice called on behalf of the applicant; and Mr Allerding and Mr Cameron Scott, the Coordinator Engineering Design at the City of Bunbury called on behalf of the respondent. The Tribunal admitted into evidence witness statements from four nearby residents: Ms Rita Haines of No 13 Karri Street (No 13); Mr Luke Bird of No 16 Karri Street (No 16); Mr Geoff Simes of No 90 Beach Road (No 90); and Mr Phil Johnston of No 18 Karri Street (No 18) (resident witnesses). The resident witnesses raised amenity concerns relating to noise associated with the operation of the child care centre, design and scale, visual impact, increased traffic and parking issues.
Further, the Tribunal, together with representatives of the parties and their experts, had the benefit of view of the subject land and surrounding locality.

Noise

Clause 34(1) of the Scheme requires that noise emissions be mitigated within the boundaries of the premises and must not impact on public health and/or cause nuisance to users or occupants of adjoining premises.
The respondent submits that based on the evidence, the Tribunal cannot confidently conclude that the noise associated with the proposed development will not cause nuisance to occupants of adjoining premises.
The applicant engaged Mr Reynolds to undertake an environmental noise assessment of the noise that would be received at the neighbouring residences from the proposed childcare premises (noise assessment).[11] Mr Reynolds also undertook a noise assessment of the October 2023 plans.[12]
[11] Environmental Acoustic Assessment – Proposed Child Care Centre 88 Beach Road, Bunbury dated October 2023 (Exhibit 17 Annexure 2).
[12] Exhibit 18.
For the purposes of the modelling, the neighbouring premises included 84 Beach Road, No 18, No 13, No 90 and 105A and 105B Beach Road. The noise sources assessed included outdoor play, mechanical plant and car doors closing. Mr Reynolds determined the influencing factor[13] to be +2dB and established the assigned noise levels as set out in the table reproduced below:
[13] Influencing factor, in relation to noise received at noise sensitive premises, means the influencing factor determined under Schedule 3 of the Environmental Protection (Noise) Regulations 1997.

Table 2.4 Assigned Outdoor Noise Level

Premises Receiving Noise	Time of Day	Assigned Level (dB)
Premises Receiving Noise	Time of Day	L_A10	L_A1	L_Amax
Noise Sensitive premises	0700 – 1900 hours Monday to Saturday	47	57	67
	0900 – 1900 hours Sunday and Public Holidays	42	52	67
	1900 – 2200 hours all days	42	52	57
	2200 hours on any day to 0700 hours Monday to Saturday and 0900 hours Sunday and Public Holidays	37	47	57

Note:L_A10 is the noise level exceeded for 10% of the time.
L_A1 is the noise level exceeded for 1% of the time.
L_Amax is the maximum noise level.

The results of the noise modelling for the July 2023 plans (Tables 5.1 and 5.2) and the October 2023 plans (Table 2), as set out in the evidence,[14] are reproduced below.
[14] Exhibit 17 and Exhibit 18.
Table 5.1 – Acoustic Modelling Results for L_A10 Criteria Outdoor Play areas and Mechanical Plant

Neighbouring Premises

Calculated Noise Level (dB(A))

Children Playing

Mechanical Services

Day Period

Night Period

84 Beach Road

45

28 (33)

27 (32)

18 Karri Street

46

29 (34)

28 (33)

13 Karri Street

47

27 (32)

26 (31)

90 Beach Road

40

24 (29)

23 (28)

105A and B Beach Road

43

23 (28)

23 (28)

( ) Includes +5 dB(A) penalty for tonality.
Table 5.2 – Acoustic Modelling results L_AMaxCriteria Door Closing

Neighbouring Premises

Calculated Noise Level (dB(A))

Day Period

Night Period

84 Beach Road

25 (35)

25 (35)

18 Karri Street

39 (49)

39 (49)

13 Karri Street

47 (57)

47 (57)

90 Beach Road

47 (57)

46 (56)

105A and B Beach Road

47 (57)

47 (57)

( ) Includes +10 dB(A) penalty for impulsiveness.
Table 2 – Resultant Noise Levels for Revised Boundary Fencing Outdoor Play Areas

Neighbouring Premises

Calculated Noise Level (dB(A))

84 Beach Road

47

18 Karri Street

46

13 Karri Street

47

90 Beach Road

40

105A and B Beach Road

46

Based on the results of the modelling, Mr Reynolds concludes that noise received at the neighbouring premises would comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (Noise Regs) if the following noise mitigation measures were undertaken:
•no music to be played in any outdoor areas at any time;
•first floor balustrading to the outdoor play to be a minimum of 1.2 metres high;
•western ground floor boundary fence to be a solid to a height of 1.8 metres;[15]
•the western portion of the northern masonry wall (ie the western 8.5 metres from Karri Street boundary) to be 2.1 metres high;
•soft finishes (e.g soft grass, sand pits, rubber mats) to be favoured over timber or plastic (wherever practical) to minimise the external impact of noise; and
•air conditioning condensing units be installed with 'low noise' night period modes and located on the roof and screened from the neighbouring residences.
[15] Mr Reynolds notes that to maintain the permeable nature of the fence Perspex could be used.
The respondent did not adduce any countervailing expert evidence but rather, attempted to discredit aspects of the noise assessment through the cross examination of Mr Reynolds. The respondent submits that the Tribunal should not be satisfied that the proposed development will not cause nuisance to the occupants of adjoining premises for the following reasons.
Firstly, the respondent is concerned that the noise modelling demonstrates that there is no margin for error as the forecast noise emissions will be either equal to or just below the relevant assigned level under the Noise Regs in the various modelled scenarios. Given the results, the respondent submits that other activities, such as noise from above ground play equipment, car movements within the car park area, children and parents walking through the car park and noise generated by staff could result in actual noise emissions being slightly greater than those modelled resulting in an exceedance of the assigned levels and noncompliance with the Noise Regs.
Mr Reynolds explained that 'the modelling is actually reasonably conservative, so that there's a bit of a margin of error in there that would allow for variation so I'm quite confident in the modelling and what we have achieved.'[16] Mr Reynolds also told the Tribunal that the critical noise sources had been modelled and that if the loudest noise generating sources were compliant then all the other noise source will quite easily comply.
[16] ts 147, 26 October 2023.
The respondent also asked Mr Reynolds whether the cumulative noise emissions from all the noise sources of the child care premises would be higher than the modelled noise. Mr Reynold confidently responded 'No' and explained that due to the design of the child care centre the only two noise sources that could possibly be added together would be the noise from the children in the outdoor play area and the mechanical services, which are assessed under the same criteria and would not add to it.[17]
[17] ts 120, 25 October 2023.
As there is no countervailing evidence, the Tribunal accepts Mr Reynolds' explanation in regards to the conservative nature of the modelling and his confidence that the noise received at the neighbouring premises will comply with the Noise Regs.
Secondly, the respondent contends that Mr Reynolds has not applied the proper influencing factor in this case and submits that the proper influencing factor should either be zero decibels or one decibel, which based on the modelling would result in non-compliance with the Noise Regs. The respondent says that the correct approach in calculating the influencing factor is to not treat the Mixed Use – Residential zone as a commercial premises area, as Mr Reynold did in his assessment, because there are significant differences between the land uses permissible in the Mixed Use – Residential zone under LPS 8 and those land uses defined as commercial under the Noise Regs. Alternatively, rather than using the LPS 8 Scheme map as the land use map referred to in Sch 3 cl 2(1) of the Noise Regulations, use the GBRS map which designates the subject land as 'Urban' zone.
The Tribunal is satisfied that Mr Reynolds' methodology in determining the influencing factor, in this case, is correct. The Tribunal considers Mr Reynolds to be a competent acoustic expert that demonstrated in his evidence a comprehensive understanding of the methodology for determining the influencing factor as set out in Sch 3 of the Noise Regs and a rudimentary understanding of the zones and zoning table contained in LPS 8. The Tribunal is of the view that Mr Reynolds chose the most appropriate land use map as defined in cl 1 of Sch 3, that being the Scheme Map of LPS 8 because the local scheme map is 'fine grained' in distinguishing between zones and land uses permissibility whereas the nature of the GBRS is broad-brush identifying broad zoning categories that are not precisely defined or limited.
The Tribunal also considers Mr Reynolds' reasoning for selecting the north-west corner of No 13 to draw the two concentric circle and his identification of the Mixed Use – Residential zone as commercial premises, which he submits is in accordance with cl (2A) of Sch 3,[18] to be sound. Clearly the intent of the Mixed Use – Residential zone is to provide for a mix of residential and commercial land uses, with the caveat that the scale of development does not generate nuisances detrimental to the health, welfare and safety of residents and transitions sensitively into surrounding residential areas. The respondent is correct that the commercial land uses that may be permitted within the Mixed Use – Residential zone is not as extensive as that in the Mixed Use – Commercial zone but that does not negate the aim of the zone is to facilitate mixed use development which provides for appropriate and permissible commercial premises being developed. Further, Part B of Sch 1 of the Noise Regs classifies offices, small retail shops, restaurants, fast food outlets, indoor premises used for public amusement (such as, 'Art Gallery', 'Community Purpose') premises used for medical and allied services (such as, 'Consulting Room' and 'Medical Centre'), Veterinary centre as Commercial premises, all of which, subject to any qualifications specified in the notes of the Zoning Table, are discretionary uses of land in the Mixed Use – Residential zone of LPS 8.
[18] Clause (2A) of Sch 3 states as follows: 'If the land within either of the circles is categorised on the land use map as land in respect of which mixed uses are permitted, the use of that land that results in the highest influencing factor is to be used in the determination of the influencing factor'.
Thirdly, the respondent submits that compliance with the Noise Regs is not conclusive for assessing whether noise will cause nuisance for the purpose of cl 34 of LPS 8. The respondent contends that the evidence of Mr Reynolds does not consider the existing acoustic amenity of the locality and is thereby limited in its ability to assess the degree of impact of the proposed development of the existing amenity. The resident witnesses expressed concerns that the noise from the operations of the child care premises will be disruptive causing a great deal of stress and anxiety and will have a negative impact on the quiet enjoyment of their properties.
The Tribunal has previously articulated in numerous decisions that land use compliance with the Noise Regs does not necessarily mean that noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.[19]
[19] Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 11, Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17, Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63. Also see: Sharon Properties Pty Ltd and the Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2022] WASC 332 at [183].
As articulated in Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63:
An analysis of the reasonableness, or otherwise, of noise for the purposes of a planning assessment, will very much depend on the land use in question, the noise emitted and the planning context of the land. This planning analysis overlaps with and is informed by, but is ultimately separate from, the question as to whether a noise exceeds the maximum permissible levels contained in the Noise Regulations.
The Tribunal acknowledges the perceived noise impacts raised by the resident witnesses and accepts that the establishment of a nonresidential use may affect the level of amenity currently enjoyed by the residents of adjoining properties, particularly No 13 and No 90. The evidence before the Tribunal demonstrates that the noise emissions will be mitigated within the boundaries of the premises and when consideration is given to the contemplation for approval of nonresidential land uses in the Mixed Use – Residential zone abutting residential land use, the nature of the noise, and the ameliorative measures recommended by the acoustic expert, the Tribunal is of the view that the noise impacts from the activities of the proposed development would not be so unreasonable as to warrant refusal of the application.

Traffic and parking

Clause 41(1) together with Table 7 of LPS 8, specifies the minimum number of car parking bays for a child care premises as:
.1 bay per 10 children the premises is designed and approved to accommodate; plus
.1 bay per employee.
The car parking layout provides for seven parent drop off bays, an ACROD bay, a delivery bay and 10 staff bays (six in a tandem configuration).
It is agreed that the seven drop-off bays satisfy the Scheme's requirements of one bay per 10 children. The dispute relates to the provision of bays for other purposes.
During the course of the hearing there was some interrogation regarding staffing arrangements for the child care premises. The Tribunal sought clarification from the applicant about the composition of the staff and the staffing requirements. Mr Flint, counsel for the applicant, sought instructions and told the Tribunal, which the Tribunal accepts, that at any one time there will be a maximum of 10 supervisory educators, the possibility of a part-time chef/kitchenhand but no additional centre manager as any managerial responsibilities will be undertake by one of the existing staff.[20] The Tribunal was also told that there is no staff changeover as such, as when a shift finishes there is no replacement although, there is the need to cover staff breaks so between the hours of nine and two there is the need for an addition of one or possibility two staff.[21]
[20] ts 45 and 46, 25 October 2023.
[21] ts 55 and 56, 25 October 2023.
The respondent submits that on an ordinary day the child care premises would require up to 13 or 14 staff members working at once, at least for part of the day, ie. 10 full time staff, an additional two staff to address shift changes and breaks, a cook and maybe a centre manager. On these particulars, the respondent asserts that the proposed development requires 20 bays, or 21 bays if a centre manager is required. The respondent contends that there is shortfall of three bays, or four bays if a centre manager is required, because in their submission, for the purposes of Table 7 of the Scheme the ACROD bay and the delivery bay should be provided in addition to the Scheme's minimum car parking requirements.

ACROD bay

The respondent relies on cl 8.81 of LPP 3.1 which provides vehicle parking for people with disabilities and specifies that 'a minimum two percent (2%) of the overall amount of carparking bays for retail/commercial land uses must be allocated to disabled parking'. The respondent says that this is an additional requirement as ACROD bays are not available for general parking use.
Mr Nguyen told the Tribunal that the standard practice is to include the ACROD bay toward the count of the parking provision and he did not consider the requirement for ACROD parking as expressed in LPP 3.1 to be in addition to Scheme requirements.[22] Mr Fitzgerald and Mr Allerding also agreed that the provisions for an ACROD bay is inclusive of the overall parking requirement of the Scheme and not in addition.[23]
[22] ts 25 and 51, 25 October 2023.
[23] ts 186 and 193, 26 October 2023.
The respondent's submission that the ACROD bay should be provided in addition to the Scheme requirements is misconceived for two reasons. Firstly, local planning policies must be consistent with the Scheme[24] and cannot augment a standard specified in the Scheme. Further, it is also noted that LPP 3.1 has not been updated since it's adoption in 2010 under a previous town planning scheme and as such, can only be considered as a policy of the respondent's and not a local planning policy as it has not prepared and adopted in accordance with cl 3 of the deemed provisions. Secondly, on a practical and commonsense approach to interpreting the cl 8.81 of LPP 3.1 it is plain that two percent of the overall parking provided is to be parking for people with disabilities.

Delivery bay

[24] Clause 3(5) of the deemed provisions.

It is common ground that LPP 3.1 does not mandate such bays in the circumstances of this proposal.[25] Nevertheless, the respondent maintains that having a separate delivery bay is practically important in this matter.
[25] ts 400, 25 January 2024.
The expert evidence before the Tribunal does not substantiate this position. Mr Nguyen told the Tribunal that if a separate delivery bay wasn't required for all day and the deliveries could be scheduled to occur outside of the peak pick up and drop off periods then it would be reasonable for the delivery vehicle to use one of the pickup/drop off bays.[26]
[26] ts 29, 25October 2023.
The applicant adduced evidence from Mr Depiazzi who told the Tribunal that due to the removal of the crossover on Karri Street, as shown in the original plans, additional space was gained which facilitated an extra parking bay. He says that the additional bay was deliberately marked 'Deliveries' as opposed to 'Staff' or 'Drop off' to negate any suggestion of an increase in the number of children using the premises. Mr Depiazzi also told the Tribunal that the proposed childcare centre is expected to generate in the order of 1.5 delivery/service/maintenance/repair vehicle attendances a week based on his analysis of deliveries of a similar sized child care centre acquired by the applicant and that an operation of this scale did not require a separate delivery bay.
Mr Fitzgerald did not consider a separate delivery bay to be warranted given the nature of the operation[27] and Mr Allerding, in crossexamination, agreed that one delivery vehicle a week would not require a separate delivery bay.[28]
[27] ts 188, 26 October 2023.
[28] ts 201, 26 October 2023.
On the evidence, the Tribunal is persuaded that the need for a separate delivery day is not borne out in the circumstances of this case.

Additional employees

Mr Nyugen in cross-examination accepted that where there are an additional two employees working between the hours of 9.00 am to 2.00 pm there would be 12 staff onsite and by reference to the scheme requirements that would require 12 staff bays. He agreed that it exceeds the Scheme car parking calculation but considered it to be a resolvable practical issue.[29]
[29] ts 60, 25 October 2023.
Mr Nyugen's view on whether a separate parking bay was required for the chef depended on whether the position worked full-time hours and on the starting and finishing time for that particular staff member. He considers that it would be reasonable for the demand to be meet by one of the pickup/drop-off bays if the chef started after the drop off peak period and finished before the pick up peak period as the drop off/pickup bays were likely to be vacant at that time.
Mr Fitzgerald in oral evidence sought to reconcile his written evidence given the clarification provided by the applicant relating to additional staff. Mr Fitzgerald considers that based on the Scheme requirements additional staff parking would be required for those staff members taking the number of staff bays to 13 bays. However, in terms of actual demand he opined that as the cover for staff breaks was outside of the peak periods of operation the drop off/pick up bays would meet that demand.
Mr Allerding considers that if it could be demonstrated with appropriate management that the shift changeover did not impact on the normal function of the use of the car park then additional bays would not be required.[30] He did, however, consider that a bay should be provided for the chef, although it was unclear if Mr Allerding appreciated that the chef position was parttime.

Non-compliance with additional site and development requirements

[30] ts 201, 26 October 2023.

It is accepted by the applicant that in terms of the Scheme provisions, the proposed development requires seven bays for children drop off/pick up and 12 or 13 bays for staff parking, being 10 for educators, one bay for the chef and two or three bays for the staff covering breaks.[31]
[31] ts 366, 25 January 2024.
It would appear likely, given the clarification made by the applicant in relation to staff numbers, that the maximum number of staff on site as result of staff changeover is 13 staff. On this basis, Table 7 of the Scheme requires the provision of a total of 20 bays on site (seven drop off/pick up bays and 13 staff bays). Given the Tribunal's findings that the ACROD bay is part of the overall parking calculation and that the proposed development does not require a separate delivery bay and that this bay could be convert to a staff bay, there is in effective 19 bays provided on site and as such, a one bay shortfall for staff parking.
Clause 43 of LPS 8 provides discretion to vary site and development requirements. The car parking requirements as set outs in cl 41 of the Scheme are for the purposes of cl 43 additional site and development requirements and as such, the decision-maker may approve an application for development that does not comply with the additional site and development requirements.[32] The preconditions to the exercise of that discretion is that the decision-maker has regard to any expressed views from affected owners and occupiers and is satisfied that:
(a)proposed development would be appropriate having regard to the matters set out in cl 67(2) of the deemed provisions; and
(b)the non-compliance will not have a significant adverse effect on the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality.[33]
[32] Clause 43(1) and cl 43(2) of LPS 8.
[33] Clause 43(4) and cl 43(5) of LPS 8.

Concern was expressed by the resident witnesses that the proposed child care premises could exacerbate the existing parking issue of cars parking on the road or on verges along Karri Street (and, in some cases, blocking driveways) given the limited car parking available on the subject land.
Taking into consideration the concern expressed by the resident witnesses and the views expressed by the experts that the demand generated by the additional changeover staff can be accommodated through the use of the drop off/pick up bays, Tribunal is satisfied that the non-compliance, being a shortfall of one car parking bay, will not have a significant adverse effect on the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality and as such, considers it appropriate, having regard to the relevant matters set out in cl 67(2) of the deemed provisions, to vary the additional site and development requirements as set out in cl 41 of the Scheme.

Functionality of the car park

The respondent contends that there are unresolved functionality issues with the proposed car park and submits that if the car park is not functional and cannot conveniently be used, there is a real likelihood that it may encourage users of the child care premises to park on the surrounding street, namely Karri Street, which could materially impact on the residential amenity along this streets. The functionality issues raised by the respondent relate to manoeuvrability within the car park and height clearance for delivery trucks to access the car park. The respondent did not adduce any expert evidence on these matters and relies on the cross examination of Mr Nyugen.
Mr Nyugen confirms in his witness statement that he has prepared a Transport Impact Statement (TIS) in accordance with the Western Australian Planning Commission's Transport Impact Assessment Guidelines Volume 4 – Individual Developments and that 'the key dimensions of the car parking layout is compliant with Australian Standards [AS2890.1]'.
As the design proposes columns between some of the bays, Mr Nyugen undertook at swept path analysis to check the manoeuvrability of the affected bays. According to Mr Nyugen the analysis is based on the Australian Standard B85 vehicle (B85),[34] which is the standard for checking manoeuvres in and out of parking bays. The results of the analysis demonstrated that 'all bays can accommodate the B85 vehicle in a satisfactory manner except for the bays at the end of the parking aisle which are partly restricted by the proposed columns'. Mr Nyugen concluded that in order for those bays to accommodate a B85 in an acceptable number of manoeuvres, the end bays will need to be widened into the landscaping area by approximately 300mm and any landscaping within the clearance envelope will need to be shorter than 150mm. He also put the following two alternative options:
i.Marking these as small car bays which will manoeuvre easier than indicated by the swept paths.
ii.Subject to structural requirements, shifting the columns away from the end bays. If this can be achieved, then the end bays do not need to be widened but landscaping close to the edge of the bay should be kept low.
[34] The B85 is the 85^th percentile vehicle which is equal size or larger than 85% of light vehicle on Australian Road (Exhibit 19) page 18,
The respondent queried the appropriateness of the B85 rather than the B99 vehicle on the basis that there is potential for large vehicles, such as Land Cruisers or the like, to be accessing the car park. There was no evidence adduced challenging the use of the B85 vehicle. Mr Nyugen told the Tribunal that:
… the requirement for checking carparking areas is in accordance with AS2890.1, and the requirement for checking manoeuvrability in and out of parking bays is a B85. It's accepted that the – that a B99 might need to manoeuvre a bit more than what's shown for a B85 but that's the standard for checking parking bays. There's no requirement to check B99 for carparking bays.[35]
[35] ts 62, 25 October 2023.
The respondent also suggested that the aisle width should be 6.2 metres to accord with Table 1: Standard Design Requirements of OffStreet Parking Area (Table 1) of LPP 3.1 and not 6 metres as shown on the development plans. Mr Nyugen pointed out that cl 8.1.3 of LPP 3.1 requires the dimensions of aisle widths to be in accordance with AS2890 (minimum of 5.8 metres), which is a different requirement so there appears to be two different standards being expressed in LPP 3.1. Interestingly, the notes ascribed to Table 1 states that 'Table 1 … set out typically preferred minimum design requirements for off-street parking areas as illustrated in Figure 1 for information purposes only'. Mr Nyugen in re-examination confirmed that the aisle width is sufficient for the development being proposed and accords with Australian Standard AS2890.1.
Mr McGlue in closing submissions queried whether there is sufficient height clearance for delivery trucks to access the car park. This concern was not put to the experts and as such, the Tribunal does not have any evidence on this particular point. However, the Tribunal is not overly concerned as given the nature of the proposed development most delivery and service vehicles will likely be light commercial vehicles and a restriction on the height of vehicles can form part of the operational management plan.
Based on the evidence given by Mr Nyugen, the Tribunal is satisfied that the car park is capable of meeting the design standard specified in Australian Standards AS2890.1 with the solutions proposed by Mr Nyugen and as such, does not consider there to be an issue with manoeuvrability in the car park.

Landscaping

The respondent submits that the development application materials do not include a landscaping plan and that there are no details before the Tribunal as to what the landscaping associated with the proposed development will look like or whether any landscaping measures proposed are viable.
Both Mr Boyko and Mr Fitzgerald in oral evidence affirmed that the plans of the proposed development show the design intent and not the detailed design of the landscaping. Mr Boyko indicated that if the project was to proceed a landscape architect would be engaged in the detail design of the landscaping.
The evidence before the Tribunal relating to the landscaping is that the assessments undertaken by the respondent's planning officer, Mr Fitzgerald and Mr Allerding all conclude that the landscaping for the proposed development is compliant with requirements of LPS 8 and LPP 3.[36]
[36] Exhibit 3, page 145: Exhibit 21, page 41; and Exhibit 10, page 4 of Annexure SGA4.
As to the detail of the landscaping, the Tribunal is satisfied that this is an incidental aspect of the development[37] and may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decision-maker and implementation of the approved plan, detail or specification. A comprehensive draft condition to this effect has been agreed by the parties as part of the 'draft without prejudice conditions'.

Tribunal's Conclusion on issue (i)

[37] Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124.

The Tribunal finds, for the reasons expressed above, that noise, parking and landscaping have been satisfactorily addressed and that any impacts that may arise as a consequence of the proposed development have been sufficiently ameliorated so that the degree of impact on the amenity, streetscape and character of the locality is acceptable.

The built form of the proposed development will adversely impact on the amenity, streetscape and character of the locality

The respondent submits that the proposed building has excessive bulk and scale for this particular context and that the built form itself will adversely impact on the amenity, streetscape and character of the locality.
The respondent contends that the combination of height, setback and overall footprint of the building, when viewed together and holistically, results in a bulk and scale that is inappropriate for this locality.

Height

During the course of the hearing the respondent raised a concern about whether the height of the proposed building was compliant given that the site survey had been undertaken prior to the demolition of the existing dwelling on the subject land and that the levels may have been altered as a result of these works. The applicant tendered a document labelled Survey of Post-Demolition Natural Ground Level on 88 Beach Road dated 28 November 2023[38] to address the concern (post site survey). The location of the proposed mechanical plant deck[39] was transposed on the post site survey by reference to six spot levels. The post site survey established that the south-western corner of the mechanical plant deck was 2.6 centimetres above 9 metres, while the five other spot levels demonstrated that the maximum height of the proposed building will be under 9 metres.
[38] Exhibit 28.
[39] The mechanical plant deck is considered to be the highest part of the proposed development.
The respondent submits that the proposed building exceeds the maximum building height requirement as specified for in LPP 3 and says that although it may not be particularly major when viewed in of itself but when viewed in conjunction with the setbacks and overall footprint of the building the proposed exceedance should not be supported. Further, the respondent points out that as the proposed building exceed that maximum building height, albeit by 2.6 centimetres, a development impact statement has not been provided supporting the proposed variation.
The planning experts agreed that the R40 category in Table 4.4-1 of LPP 3 is the appropriate building height requirement to be applied to the Mix Use – Residential zone R20/40, which provides a maximum building height of 9 metres. The evidence before the Tribunal from the planning experts regarding building height relates to pre-demolition levels as their evidence was given prior the tendering of post site survey and neither party sought to recall them. The planning experts both agreed that the proposed building pre-demolition levels complied with the 9metre maximum building height when measured from natural ground level. However, it is worth noting that Mr Fitzgerald calculated that the '[m]aximum, building height inclusive of mechanical plant deck from FSL is 86mm in excess of the 9m maximum'[40] and the respondent planning officers report presented to the Council meeting of 29 November 2022 states that there is a 'minor 9cm variation in regard to building height for the mechanical [plant] deck'.[41]
[40] Exhibit 21, page 42.
[41] Exhibit 3, page 313.
As articulated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (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.
The Tribunal acknowledges that a development impact statement has not been provided supporting the proposed variation to the maximum building height as specified in LPP 3. However, given the minor protrusion of only one small component of the building, that being the south-western corner of the mechanical plant deck, which is situated toward Beach Road and away from the existing residential premises (No 13 and No 90) and therefore will not adversely impact the adjoining properties, the Tribunal does not consider a development impact statement to be warranted and is satisfied given the extent of the variation the resultant impact will be negligible and as such, acceptable in these circumstances.

Setbacks

For convenience, we repeat the relevant Scheme and local planning policy provisions. Clause 36 of LPS 8 states:
(1)The Table in Schedule 5 [Table 8] sets out requirements relating to development that are additional to those set out in the RCodes, activity centre plans, local development plans or State or local planning policies.
(2)To the extent that a requirement referred to in subclause (1) is inconsistent with a requirement of the R-Codes, an activity centre plan, a local development plan or a state or local planning policy the requirement in subclause (1) prevails.
Table 8 of LPS 8[42] specifies the following setback requirements for NonResidential Development in a Mixed Use-Residential zone:
Front Setback
(a)Minimum 2m.
(b)Upper floor balconies must be located entirely behind the 2m front setback line.
Side and Rear Setback
(a)Minimum nil (0m) for ground floor and first floor, except where required to provide access for parking.
(b)Where the development adjoins the Residential zone, setbacks are at the discretion of the local government, having regard to any local planning policy.
[42] Amendment 2 to LPS 8 modified Schedule 5, Table 8 relevant to the Mixed Use – Residential zone by revising the front, side and rear setbacks in columns two and three respectively. Amendment 2 to LPS 8 was gazetted 22 March 2022.
The relevant local planning policies are LPP 3 and LPP 5.4.
Clause 4.4 of LPP 3[43] set outs a land use and development table (Table 3) and specifies the following in relation to setbacks:
[43] LPP 3 was adopt by the respondent on 21 August 2018 pursuant to Div 2 of the deemed provisions.
5.3… Mixed Use – Residential Zone Side and Rear Setbacks
(a)Minimum of nil (0m) side setback for mixed use and nonresidential development adjoining land included in the Mixed Use – Residential Zone ….
(b)Buildings shall be built from side boundary to side boundary except where access and parking is required.
(c)Side and rear setbacks are to be in accordance with any relevant local planning policy when adjoining residential development.
…
8.Adjoining Residential Zone and Other Sensitive Land Uses
Where a non-residential development site adjoins a Residential Zone or other sensitive land use, development is to be in accordance with the relevant local planning policy.
LPP 5.4 applies to 'all non-residential development adjoining/abutting land use in the 'Residential Zone' where indicated as permitted or discretionary land uses under the Zoning Table of the Scheme for each particular zone'. Clause 2.2 of LPP 5.4[44] states that one of the purposes of this policy is to:
provide guidelines for non-residential land use and development adjoining dwellings on 'Residential Zone' land through the requirements for boundary treatments (i.e. fencing and setbacks) that minimise potential land use conflict and maintain the established level of residential amenity.
[44] LPP 5.4 was adopted by the respondent on 27 November 2018 pursuant to Div 2 of the deemed provisions.

Clause 5.2.2 of LPP 5.4 provides guidelines in relation to setbacks and states:
Where a non-residential development site abuts any boundary of a residential premises, the building setback shall be no less than half the height of the wall of the proposed building with a minimum setback of 3.0m.
The respondent accepts that the proposed building complies with the front setback requirements in respect to both Beach Road and Karri Street. The respondent also accepts that the setback to No 13 is also compliant with cl 5.2.2 of LPP 5.4. However, the respondent submits that despite complying with cl 5.2.2 of LPP 5.4 the proposed built form as viewed from No 13 should not be supported because the design of this elevation, which the respondent says is 'long, uniform and unarticulated creates an increased perception of bulk and scale' when viewed from No 13.[45] The respondent considers that the proposed setback is inappropriate and that a more generous setback is warranted.
[45] ts 413, 25 January 2024.
The respondent appears to accept that strictly speaking cl 5.2.2 of LPP 5.4 does not apply to No 90 as this lot is zoned Mixed Use – Residential and not Residential zone. The respondent submits cl 5.2.2 of LPP 5.4 should be applied to No 90 because the commercial/residential interface within the Mixed Use – Residential zone does not appear to be addressed by any local planning policy and this clause is best fit and analogous to a boundary of a residential premises abutting a nonresidential land use. Further, the respondent argues that cl 5.3(c) and cl 8 of LPP 3 contemplate that a local planning policy will be adopted to guide development where non-residential development in the Mixed Use – Residential zone adjoins residential development and other sensitive land uses.
The respondent says that if this standard is applied then compliance is not achieved as the setback to the eastern boundary would be required to be 3.75 metres and not 2 metres as provided. The respondent submits that the proposed 2 metre setback is inadequate in terms of the perception of bulk and scale when viewed from No 90.

The proposed building is setback 3.9 metres from the northern boundary (common boundary with No 13) and 2 metres from the eastern boundary (common boundary with No 90). Mr Fitzgerald calculates the required minimum setback to the northern boundary as 3.77 metres and a nil setback to the eastern boundary and considers the setbacks to be compliant with the requirements of the planning framework. The 'Assessment against Planning Framework' annexed to Mr Allerding's witness statement aligns with the views expressed by Mr Fitzgerald.[46]
[46] Annexure SGA 4 (exhibit), page 2.
There was no expert planning evidence before the Tribunal that the proposed setback to the northern boundary is inappropriate and that the building should be setback a greater distance from that boundary, nor any evidence supporting the respondent's submission that setback requirements of LPP 5.4 should be applied to the eastern boundary. Mr Allerding in oral evidence expressed the following in relation to the proposed setback to the eastern boundary:
But given that there's no certainty that that land use will remain forever a residential activity [that being No 90], I didn't take offence with the fact that there was a setback and it didn't meet like, a 3.5-metre setback. I thought that some setback was a reflection of attempting to at least ameliorate a potential amenity issue with that – with that neighbour, as opposed trying to put a hard wall on the boundary, which was, I guess, a potential possibility under the – the policy for non-residential development in a mixed-use zone.[47]
[47] ts 269, 26 October 2023.
The Tribunal is mindful that cl 36(2) clearly expresses that where there is any inconsistency between the additional development requirements set out in Table 8 and a local planning policy, the requirements in Table 8 prevail. Clearly, the reference in cl 5.3(c) of LPP 3 to 'adjoining residential development' must be read as 'adjoining residential zone' to be consistent with Table 8 of LPS 8 and cl 5.3(a) of LPP 3 and as such, the setback guidelines expressed in LPP 5.4 is not applicable to the eastern boundary.
The planning framework recognises that transitionary measures are required to minimise the potential conflict between non-residential development on land zoned Mixed Use – Residential that adjoins land zoned Residential. The setback of the proposed building to the northern boundary is compliant with the planning framework that has been established with the clear intent of providing such guidance. There is no evidence supporting an increase in the setback and the Tribunal is not persuaded by the respondent's submission that the design of the building gives rise for a greater setback to the northern boundary.
Similarly, the setback of the proposed building to the eastern boundary is compliant the Table 8 of LPS 8. The Scheme provisions in Table 8 make a clear distinction between setbacks for non-residential development on land zoned Mixed Use-Residential that adjoining the Residential zone (subclause (b)) and other scenarios (subclause (a)). Mr McGlue in his submissions is trying to redraft the Scheme provisions. The Tribunal is not persuaded to take such action and holds the view that the appropriate setback to be applied is subclause (a) as set out in Table 8 of LPS 8 as the eastern boundary of the subject land abuts land zoned Mixed Use – Residential, notwithstanding there is currently an existing residence on that lot.

Building footprint

The respondent did not adduce any evidence in relation to building footprint but made the following submission. The respondent submits that the proposed development contemplates a site coverage and building bulk that will be significantly greater than existing development in the locality.
The Tribunal acknowledges that the proposed development adjoins land that is zoned Residential but does not consider the respondent's argument to be compelling given that the proposed building is essentially compliant with the development requirements as contemplated by LPS 8.

Tribunal's Conclusion on issue (ii)

The Tribunal considers the built form of the proposed development to be consistent with the intent of the planning framework and that the bulk and scale of the building reflects the desired future character of the Mixed Use – Residential zone along Beach Road. As to whether the proposed development will adversely impact the amenity, streetscape and character of the locality will be addressed in the following issue.

Is the proposed development compatible with its setting and amenity of the locality

The compatibility of the proposed development with its setting and the impact on the amenity of the locality are relevant matters for consideration in considering an application for development,[48]which requires an assessment of the relationship of the proposed development to development on adjoining land and other land in the locality. Further, the Tribunal in determining an application is also required to have due regard to any state planning policy which may affect the subject matter of the review application, in this case, SPP 7 is relevant.[49] The two Design Principles (DP) being relied on by the respondent is DP 1 – Context and Character and DP 3 – Built form and scale.
[48] Clauses 67(2)(m) & (n) of the deemed provisions.
[49] Section 241(a) of the Planning and Development Act2005 (WA).
The respondent also attaches some weight to draft Local Planning Policy 4.3 - Tree Streets Heritage Area LPP 4.3 (draft LPP 4.3) because it has been prepared and advertised in accordance with cl 4 of the deemed provision, and therefore, pursuant to cl 67(2)(b) due regard should be given to this policy. However, at the time of the hearing in January 2024 the respondent accepted that the policy was neither certain or imminent and that it would be unreasonable for the Tribunal to purport to apply the development controls in draft LPP 4.3.
As of the date of this decision, the Tribunal is unaware of any advancement of draft LPP 4.3. Other than noting the 'Physical Analysis' pertaining to Beach Road and Karri Street as detailed in the Trees Street Heritage Area Assessment prepared by Stephen Carrick Architects,[50] the Tribunal, taking into consideration the criteria to determine weight to be accorded to a draft planning instrument[51]has not given draft LPP 4.3 any weight in these proceedings.
[50] The Trees Street Heritage Area Assessment prepared by Stephen Carrick Architects is Annexure 2 to Exhibit 16 - pages 53 & 113.
[51] See Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117.
The respondent contends that the built form contemplated by the proposed development is incongruous with the existing streetscape and character within the locality and will unreasonably impact upon that streetscape and character. Further, the respondents asserts that the built form of the proposed development is inconsistent with the relevant zone objectives in LPS 8, which contemplate commercial developments transitioning sensitively into surrounding residential areas.
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. As articulated by the Tribunal in Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 at [38], planning law in relation to the assessment of amenity impact is well settled. The approach adopted is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, where the Town Planning Appeal Tribunal observed at 304 that:
[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
Consistent with the definition of amenity in cl 1 of the deemed provisions, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] also confirmed that an evaluation of amenity should take account of likely future amenity.

The relevant locality

Mr Allerding holds the view, and the Tribunal accepts, that the locality has two distinct areas, that being the development located along Beach Road and the development along Karri Street.

Beach Road locality

Mr Allerding identified the Beach Road locality as the properties along Beach Road between Tuart Street and Spencer Street. Mr Allerding observed the following characteristics:
•lot sizes and shapes along this section of Beach Road are more variable with lot sizes ranging typically from 500m² to over 2,000m²;
•there is a mixture of residential and commercial land uses, with more intensive development located towards the intersection with Spencer Street;
•in the immediate vicinity of the subject land, the sorts of uses comprise: Residential; Healthcare, Acupuncture, Accountants, Architects, and Legal Practitioners;
•typically, commercial activities have occurred either within the existing traditional dwelling, or in redeveloped buildings which have predominantly maintained a residential appearance typical of the area with hipped and gable roofs and all of which are single storey. The exception being Lots 360 and Lot 40 adjacent to the Spencer Street intersection, where development forms are typically more purpose built commercial in nature. Mr Allerding, in cross-examination, conceded that the St Johns Medical Centre on the southern side of Beach Road does not appear as a residence but he considers the appearance of the building to have the same characteristics in terms of bulk and scale;[52] and
•there are no commercial uses on the northern side of Beach Road between Karri and Tuart Streets and the adjoining property immediately east of the subject land (No 90) is also residential.
[52] ts 213, 26 October 2023.
Ms Dewar was called by the applicant to give evidence in relation to the merits of including the north side of Beach Road within the proposed draft LPP 4.3. As part of her assessment, she visited the subject land to understand the place in relation to its setting and adjoining context to determine whether this section of Beach Road makes a positive contribution to the significance of the heritage area. Whilst Ms Dewar's evidence focused on the heritage assessment, she did draw conclusions based on her observations on the character of Beach Road. Relevantly, she says:[53]
[53] Witness Statement of Gemma Dewar dated 5 October 2023 (Exhibit 16).
6.10… east of Karri Street, a number of the original houses have been adapted for non-residential uses including nos. 96-100 Beach Road. Whilst these buildings still reflect their original residential function, their settings have altered impacting on the street scene aesthetic. Gardens have been replaced with hard landscaping to allow for increased on-site parking. Planting elements remain to help soften the landscaping but these places no longer present with an intact residential aesthetic.
6.11Nos. 94 and 102 Beach Road appear to remain in residential use and still retain their garden setting. No. 92 Beach Road which is not considered as making a contribution to the proposed heritage area is enclosed by a high brick wall which does not contribute to the predominant open character of the road at this point. The remainder of the properties on the north side of Beach Road west of Karri Street remain predominantly in residential use with many retaining the garden interface between house and street, thereby making a greater contribution to the proposed heritage area.
…
10.6The eastern end of Beach Street (both sides) … presents with a mixed use character and contains both purpose-built commercial buildings and residential buildings adapted for commercial use.
…
10.9From Karri Street to Spencer Street, the north side of Beach Road does not present with an intact streetscape. The subject property has been demolished leaving a vacant block, the eastern end of Beach Road has a more urban and commercial aesthetic and whilst original houses remain extant, the original residential qualities of these have been diminished through adaptation for commercial use.
10.10The southern side of Beach Road at the eastern end also does not have a consistent built form and therefore Beach Road does not present as an intact streetscape.
10.11… the southern side of Beach Road … currently respond to the north side of the road in terms of its more urban form and mixed use including retained and adapted original houses, commercial developments and later redevelopment sites.
Mr Fitzgerald describes the nature of the built form in this area as 'consist[ing] of a series of buildings mostly existing dwellings converted to commercial activities and demonstrates a diverse and eclectic built form with many of the existing structures being repurposed/converted to a range of uses conducive with the mixed-use zoning of land'.[54] He also points out that Beach Road, which is designated as a Local Distributor Road and neighbourhood connector road, has significant volumes of traffic which creates a totally different character of the area than other residential streets in the area.
[54] Exhibit 21, page 48.
It is clearly evident that the existing character of the Beach Road locality includes both commercial and residential activities and that the existing amenity of the locality is affected by the interaction between these uses. The eastern most portion of Beach Road, i.e. the land zoned Mixed Use – Commercial, is plainly commercial in character. The remaining lots within this locality which are zoned Mixed Use – Residential R40/60 or Mixed Use – Residential R20/40 are mixed use in character as both residential and commercial uses co-existing side by side, with an obvious readaptation of existing dwellings and their surrounds for commercial use. The lots on the northern side of Beach Road between Karri Street and Tuart Street are residential in character. The Beach Road locality is currently characterised by traditional buildings forms with hipped or gable roof that are predominantly single storey.
The respondent accepts that by reference to the Scheme, the future amenity of Beach Road locality is likely to be characterised by:
… residential dwellings that are retained; existing non-residential land uses that are retained; there may new residential developments that would be built to either R 20.R40, or R60, depending upon which side of the road they're on and whether clause 26 of the scheme allows for the higher density code to be applied; and there may also be new, nonresidential developments and they would be limited to the types that area contemplated for this zone in the zoning table and you would otherwise expect them to be things that are compatible with the zone objectives of clause 16 of the scheme, … such as having predominantly residential character or an amenity and transitioning sensitively into surrounding residential areas.[55]

Karri Street locality

[55] ts 426, 25 January 2024.

In relation to Karri Street, Mr Allerding says:
Karri Street is an access road that presently and exclusively comprises low density single residential dwellings. Except for two properties on the corner of Beach Road and Karri Street, all other 15 properties along Karri Street are zoned low density R15.
Typically, lot sizes along Karri Street are traditional quarter acre (1012m²) with some exceptions. The predominant building form is single storey weatherboard/fibro with iron pitched roof, with some examples of masonry construction and tiled roofs. As a general observation, the form of development is relatively intact with this development style with no examples of any two-storey development (with the exception of a small outbuilding at the rear of one of the properties on the western side of Karri Street) or flat roof elements within the Karri Street streetscape. Whilst there are some examples of differing setbacks along the street, predominantly for the main building structure, setbacks along the street are reasonably consistent.
Mr Boyko, in oral evidence, characterised Karri Street as a residential streetscape with reasonable setback and residential single form.[56] Mr Fitzergald also agrees that the streetscape of Karri Street is characterised by single-storey dwellings that are generously setback from the street.
[56] ts 173, 26 October 2023.
As to the likely future amenity of the Karri Street locality, all the experts agreed, and the Tribunal accepts, that it was unlikely that the character of Karri Street will change as the intent for Karri Street is to be retained as residential use.

Impact of the proposed development

Mr Boyko says that the design of the building responds to the residential land use by the incorporation of additional setbacks to the eastern and northern boundaries, and no open space or major openings face these boundaries to ensure no overlooking is achieved. Further, he submits that there is no overshadowing impact on any neighbour, and for consideration of noise sensitivity, the play spaces have been orientated towards the traffic orientated streets, and away from adjacent neighbours.
Mr Allerding does not consider the proposed development to have reinforced local distinctiveness or responded sympathetically to local building forms and patterns of existing development in the locality. He does, however, accept that as the proposed development is mostly consistent with the currently adopted planning framework, and reflects the intended future character of the locality.[57]
[57] ts 225, 26 October 2023.
The Tribunal accepts that currently the predominant built form in both localities is single storey, however, there are no height restrictions, at present, prohibiting two storeys in the Residential zone or Mixed Use – Residential zone. In fact, LPP 3 requires a minimum building frontage height of 7.5 metres (two storey) for a minimum depth of 10 metres from the front street setback for mixed use and non-residential development in the Mixed Use-Residential zone.[58] The built form of the proposed development is consistent with the desired future character of Beach Road as espoused in the planning framework. The Tribunal acknowledges that the built form of the proposed development is divergent from the existing built form along Beach Road but given the aspiration of the planning framework, the Tribunal considers the built form of the proposed development to be compatible with the desired future character of its setting and will positively contribute to the character of the Beach Road locality.
[58] Exhibit 3, page 485.

In considering the impacts of the proposed development on the Karri Street locality the Tribunal is mindful that the subject land is zoned Mixed Use – Residential whereas the lots in Karri Street are zoned Residential. It is in that context that the impact of the proposed development must be assessed. The Tribunal is satisfied that the design responses incorporated in the proposed development, such as the setback of the building to Karri Street reflecting the residential setback pattern, the detailing of the front fence and the increased side setback to No 13, are sufficient to assist in ameliorating the impacts of the proposed development on the existing character of the locality. The Tribunal finds that the degree of the impact on the amenity of adjoining properties and the locality is acceptable and given the contextual background the proposed development is compatible with its setting.

Conclusion

Under s 27(2) of the SAT Act, the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to grant development approval to the proposed development. For all the reasons expressed above and having due regard to all the relevant matters identified in para [27] the Tribunal is persuaded that the correct and preferable decision in the circumstances of this case, is to set aside the respondent's decision and to substitute a decision to approve the development application subject to the imposition of appropriate conditions.

Conditions

In accordance with the Tribunal's usual practice and programming orders, the City formulated and provided a set of draft 'without prejudice' conditions (proposed conditions) which it contends should be imposed if the Tribunal considers that approval of the development application subject to conditions is appropriate[59] and the applicant provided a response.[60] During the course of the hearing several documents addressing the draft conditions were filed in an attempt to reduce the number of disputed conditions.[61]
[59] Exhibit 12.
[60] Exhibit 23.
[61] Applicant's Amended Response to the Respondent's Draft Without Prejudice Conditions dated 25 October 2023 (Exhibit 25); Respondent's Amended Draft Without Prejudice Conditions dated 27 October 2023 (Exhibit 27); and Applicant's Response to Respondent's Amended Draft Without Prejudice Conditions dated 25 January 2024 (Exhibit 31).
The applicant accepts proposed conditions 2, 4, 7, 8, 9, 12, 13, 18, 19, 20 and 25 as set out in the respondent's amended draft without prejudice conditions dated 27 October 2023, leaving the following conditions to be determined by the Tribunal.

Proposed condition 1

At all times, the development the subject of this approval must comply with the land use definition of 'Child Care Premises (as it reads at the date of this approval) as contained in Part 6, Division 2 of the City of Bunbury Local Planning Scheme No. 8.

The applicant submits that the condition is objectional because it is simply redundant and serves no additional purpose. The respondent acknowledges that there is some arguable force to the applicant's argument but maintains its preference to be imposed because the development that has been applied for includes a use component. The Tribunal does not consider that imposition of this condition necessary as the development approval clearly identifies the land use that has been approved and its inclusion serve no additional purpose.

Proposed condition 3

This development approval will expire if the approved development has not substantially commenced within two (2) years from the date of issue of the approval.

The applicant seeks to amend the period where development approval will expire if the approved development has not substantially commenced from two years to four years. The applicant submits that the period should be extended as there remains a shortage of trades, particularly in the regions where this development is proposed, following on from the effects of the COVID-19 pandemic. The respondent argues that two years is the default period under the deemed provisions and as there is no actual evidence demonstrating trade shortages in the area and as the proposed development is not the most complex development in terms of construction the two-year period for substantial commencement is appropriate.
Clause 71 of the deemed provisions states as follows:
If development approval is granted under clause 68 —
(a)the development must be substantially commenced —
(i)if no period is specified in the approval — within the period of 2 years commencing on the date on which the determination is made; or
(ii)if a period is specified in the approval — within that period; or
(iii)in either case — within a longer period approved by the local government on an application made under clause 77(1)(a);
and
(b)the approval lapses if the development has not substantially commenced within the period determined under paragraph (a).
The Tribunal does not have any evidence before it that demonstrates that there is a shortage of trades in the south-west region to justify a longer period. However, the Tribunal notes that the approximate cost of the proposed development is $1.8 million[62] and bearing in mind that if the application was a DAP application and the development had an estimated cost of $2 million or more the period for substantial commencement would be 4 years.[63] The Tribunal is therefore minded to support a 4 year period commencing on the date on which the determination is made.

Proposed condition 5

Before a building permit issues, amended plans incorporating the following measures shall be provide to the satisfaction of the City of Bunbury:
a)the primary and secondary street fence is to be a maximum of 1.8 metres as viewed from the street;
b)the outdoor play area is to be setback 3 metres from the northern boundary; and
c)boundary fencing in the north-west corner is to be truncated or reduced with the height not greater than 0.75 metres within 1.5 metres to maintain adequate sight lines for vehicles exiting the adjoining property.
[62] Exhibit 3, page 12.
[63] Reg 16A of Planning and Development (Development Assessment Panels) Regulations 2011 (WA).

The applicant proposes that condition 5 a) and c) be reworded as follows:
The plans the subject of this approval are SK01 and SK05 to SK09, all dated 17 October 2023.
The applicant says that the revised plans address the aspects referred to in condition 5 a) and c) and the proposed conditions should be replaced with a condition that the most recent October 2023 plans be the plans the subject of the approval. The respondent presses for proposed condition 5 to be retained as drafted because the Tribunal on the first day of the hearing dismissed the applicant's application to formally substitute amended plans and therefore, imposing a condition that substitutes the plans would contradict that order. The respondent says that the correct approach is to proceed on the basis that it is the July 2023 plans and that the matters referred to in the proposed conditions be updated at the building permit stage.
The Tribunal was told at the commencement of the hearing that the applicant, in response to proposed condition 5 a) and c), had prepared amended plans dated 17 October 2023 and that the changes were described in supplementary witness statement of Mr Fitzgerald. The respondent concedes that the amended plans address the measures referred to in proposed condition 5 a) and c).[64] The Tribunal is of the view that the best approach is to amend the proposed condition so that the measures identified in a) and c) are to be constructed in accordance with the October 2023 plans.
[64] ts 5, 24 October 2023.
The applicant also objects to part b) of proposed condition 5. The applicant contends that the proposed development does not give rise to the need for this condition because the noise assessment demonstrates compliance with the Noise Regs. The applicant further submits that if the proposed condition is to be imposed then the timing should be prior to the commencement of construction.
In relation to proposed condition 5 b), the respondent says that the 3 metre setback at that location is not simply about noise and is a broader amenity issue about having some separation between No 13 and the proposed outdoor play area that will be actively used.[65]
[65] ts 433, 25 January 2024.
Mr Fitzgerald told the Tribunal that it was his understanding from discussions with the acoustic consultant that setting back the outdoor play area would not make a difference in the context of reducing the impact of children playing in that area on No 13. From a planning perspective, he does not see any major benefit as the outdoor play area is screened from Karri Street and No 13 and already proposed to be setback 1.5 metres from the northern boundary.[66]
[66] ts 297, 27 October 2023.
Mr Allerding considers there to be some merit in increasing the setback to the northern boundary to 3 metres as it would provide a more sensitive transition to the residential land use on No 13.
The Tribunal accepts that the noise modelling undertaken by Mr Reynolds demonstrates that the noise received at No 13 from children playing in outdoor area the outdoor play area complies with the Noise Regs. However, the Tribunal prefers the evidence of Mr Allerding and agrees that increasing the setback to the northern boundary will assist in ameliorating any adverse amenity impact of the outdoor play area on No 13 and provide a more sensitive transition between the two land uses.
Given the Tribunal's findings in relation to proposed condition 5, it is considered appropriate that each part of the proposed condition be a separate condition and numbered accordingly.

Proposed condition 6

Before the development is occupied, a revised version of the Operational Management Plan prepared by SNS and dated May 2022 must be prepared to the satisfaction of the City of Bunbury and the use of the site shall comply with that revised Operational Management Plan at all times. The revised Operational Management Plan is to address the following operation matters (without limitation):
a)parking and drop offs;
b)staff numbers and shift times;
c)child numbers and age groups;
d)deliveries;
e)days and hours of operation;
f)community and neighbours;
g)waste management; and
h)noise management.

This condition is modestly agreed between the parties. There appears to be two outstanding areas of dispute. Firstly, the applicant objects to the Operational Management Plan (OMP) being prepared to the satisfaction of the City of Bunbury. The applicant says that it is in a far more experienced position to appropriately determine a final form of the OMP and has concerns that given the application was refused by the Council, the wording 'to the satisfaction of the City of Bunbury' potentially involves the Council. Secondly, there is no need from noise management to be included in the OMP because Mr Reynolds' work has identified the matters that need to be attended to ensure compliance with the regulations, which will be covered by proposed conditions 22 and 23. Therefore, there is no need requirement for those aspects of to be repeated in the OMP.
The applicant also seeks, and the respondent agrees, that the wording 'without limitation' be deleted.
The respondent maintains that it is appropriate for any updated operational management plan to be assessed and endorsed by the City but is agreeable to the 'Chief Executive Officer of the City of Bunbury' being insert as substitute to the 'City of Bunbury. The respondent also considers that noise management needs to be included in the OMP to ensure that management measures are addressed.
The Tribunal considers that it is appropriate for the revised version of the OMP to be endorsed by the respondent as this document, amongst other things, will addresses the measures to be undertaken to ensure the amenity impacts of the proposed development are ameliorated. The substitution of Chief Executive Officer of the City of Bunbury in place of the City of Bunbury and the deletion of the wording 'without limitation' are acceptable.
As to the matters to be specified in the condition, the Tribunal considers that part a) should refer to the management of after hours and parenting sessions as clarity around this is an aspect of the proposed development should be detailed in the OMP. Parts b) and c) are agreed. Part d) should be included as there was considerable oral evidence given in relation to this matter which should be documented in the OMP. Parts e), f) and g) are agreed. Part h) should be included as noise management measures relating to the operational management of the facility should be clearly articulated so that there is no room for doubt.

Proposed condition 10

Before a building permit issues, a Construction Management Plan (CMP) is to be submitted for approval to the specifications and satisfaction of the City of Bunbury. The CMP must address the following issues where applicable:
a)The protection of existing trees in the adjacent verge;
b)Public safety and amenity;
c)Site plan and security;
d)Contact details of essential personnel, construction period and operating hours;
e)Community information, consultation and complaints management plan;
f)Noise, vibration and dust management;
g)Dilapidation reports of nearby properties;
h)Traffic, access and parking management;
i)Waste management and materials re-use and/or recycling;
j)Earthworks, excavation, land retention/piling and associated matters;
k)Stormwater and sediment control; and

The approved CMP must be always complied with during the construction of the development.

The applicant seeks, and the respondent agrees, that the timing for the submission of the Construction Management Plan (CMP) to be 'prior to construction' rather than '[b]efore a building permit issues'. In relation to 10g) the applicant seeks, and the respondent agrees, with 'nearby properties' being substituted with 'No 90 Beach Road and No 13 Karri Street'.
The Tribunal accepts the position of the parties and proposed condition 6 should be amended accordingly.

Proposed condition 11

Prior to commencement of construction, a damage bond is to paid to the City of Bunbury in accordance with the City of Bunbury's Local Planning Policy "Bonds".

The applicant agrees to the damage bond being specified as $15,480. Mr McGlue prefers the generic reference to the policy particularly if the four years substantially commencement period is imposed but the City has advised that it is comfortable with the figure agreed to by the applicant.
The Tribunal considers that the condition should be final and certain and as such agrees with the applicant's version of the proposed condition which reads as follows:
Prior to the commencement of construction, a damage bond to the value of $15,480 is to be paid to the City of Bunbury.

Proposed condition 14

Before a building permit issues, detailed design plans in accordance with relevant Australian Standards, Austroad Guidelines and City of Bunbury requirements shall be provided restricting right-out vehicles movements from the premises onto Beach Road to the satisfaction of the City of Bunbury.

The applicant objects to this condition in its entirety. The applicant contends that the proposed development does not give rise to the need to or restrict right-out vehicle movement onto Beach Road. The respondent maintains that the condition is appropriate.
In accordance with the Tribunal's orders of 13 October 2023, Mr Nguyen and Mr Scott (traffic experts) participated in a chaired conferral, which resulted in the filing of the joint statement[67]and gave evidence concurrently on this issue at the hearing.
[67] Joint Statement of Paul Nguyen and Cameron Scott dated 19 October 2023 (Exhibit 11).
Seventeen points of agreement were reached by the traffic experts, which is summarised below:
•Beach Road is considered to be a Local Distributor Road;
•The peak periods of development traffic coincide with the peak periods of traffic on the road network and development traffic is not distributed evenly over the two hour peak period.
•The estimated peak vehicles generated is relatively low and the most desired line for outbound traffic would be left-out. The demand for right-out movements would be relatively low.
•Allowing right-out movements introduces additional potential conflicts and increases the risk of crashes. Restricting right-out movements provides benefits in terms of improved traffic flows and reduction of conflicting movements.
•Restricting the right-out movement is a preferred measure by not considered to be essential.
•There is a low risk of drivers making U-turns along Beach Road or using neighbouring driveways to turn around if the right-out movement is restricted.
•Restriction of the right-movement will divert all traffic to Spencer Street, which would carry a comparable level of risk associated with turning right-out onto Beach Road.
•There are no existing driveways along Beach Road between Karri Street and Spencer Street where right-out movements have been restricted. Such a restriction is inconsistent with what has been applied in the area.
There are two matters on which the traffic experts disagreed. Firstly, if the right-out movement was allowed, in the unlikely event of a crash associated with the right-turn traffic the severity would most likely be low due to the low-speed limit. Mr Scott says that based on traffic surveys undertaken on Beach Road either side of the driveway[68] indicates that the 85^th percentile speeds are higher than the 50 km/h speed limit. Mr Nguyen in oral evidence explained that that the 85^th percentile for one of the counts was 57.51 km/h and the other was 57.42, so the 85^th percentile speed is 57 km/h, i.e. 85 per cent of vehicles would be travelling at 57 km/h or less.[69] Mr Nguyen considers there to be adequate sight distance in both directions along Beach Road and points to the crash history along Beach Road being low and the only recorded crashes which resulted in property damage only, occurred near the intersection at Spencer Street and Tuart Street.
[68] Exhibit 11, Annexure 1.
[69] ts 15, 25 October 2023.
Secondly, whether the restriction on right-out movements should be imposed. Mr Scott says that the restriction of right-out turns is not a significant imposition on the development as the demand for right-out movements is low and will deliver benefits relating to road safety and better traffic flows within the development and along Beach Road. Mr Nguyen does not consider the restriction necessary as the demand for right-out movements is low, the level of risk and potential for conflicts is also low.
The test of validity of a condition of planning approval is well known: Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test). A condition is valid if:
1)it has a planning purpose;
2)it fairly and reasonably relates to the development; and
3)it is not so unreasonable that no reasonable planning authority could have imposed it.
Based on the evidence, the Tribunal finds that draft condition 14 fails to satisfy the second limb of the Newbury test. There is no doubt that the right-out movement onto Beach Road will introduce additional potential conflicts and increase the risk of crashes. However, based on the estimated peak vehicles generated by the proposed development the demand for the right-out movement will be low and as such, the level of risk and potential for conflict is also low and does not necessitate the imposition of such a restriction. As agreed by the traffic experts, 'the restriction of right-out movements is only preferable and not considered to be essential'.[70]

Proposed condition 15

Before a building permit issues, a revised Traffic Impact Statement prepared by a qualified traffic engineer is to be submitted in a manner and form approved by the City of Bunbury to the satisfaction of the City of Bunbury.
[70] Exhibit 11.

The applicant objects to this condition in its entirety. The applicant says that the TIS annexed to Mr Nguyen's witness statement dated 4 October 2023 satisfies this condition and submits that if an approval is granted the provision of a further traffic impact statement does not have any planning purpose, lacks the necessary nexus with the development approved and be unreasonable.
The respondent maintains that the condition should be imposed as the current traffic impact statement is incomplete because it does not address various matters that have arisen in evidence during the hearing, such as deliveries and therefore, it should be updated and resubmitted.
Given the Tribunal's finding in respect to this issue, the imposition of a condition is unnecessary as the TIS annexed to Mr Nguyen's witness statement dated 4 October 2023 satisfies this condition.

Proposed condition 16

Before a building permit issues, a parking management plan demonstrating the car park is adequate to accommodate the proposed number of staff and children referred to in condition 9 and detailing how after-hours and parenting sessions will be managed is to be provided to the satisfaction of the City of Bunbury.

The applicant objects to this condition in its entirety. The applicant says that if the Tribunal in its determination of the application finds that the carparking is adequate to accommodate the proposed number of staff and children there is no need to separately demonstrate that 'the car park is adequate to accommodate the proposed number of staff and children referred to in condition 9'. As to the after-hours and parenting sessions the details will be dealt with in the revised OMP.
The respondent on reflection considered that this condition is unnecessary as the matter referred to could fall within the scope of draft condition 15.
Given the Tribunal's finding in regard to the adequacy of car parking the proposed condition is redundant.

Proposed condition 17

Before the development is occupied, the recommendations of the approved Transport Impact Statement and any measure the subject of condition 14 and 16 of this development approval must be constructed and implemented to the satisfaction of the City of Bunbury.

The applicant objects to the condition in its proposed form and suggests that following rewording of the condition:

Before the development is occupied, one of the three options outlined at pages 18 and 19 of the Transport Impact Statement by Shawmac Consulting Civil and Traffic Engineers dated 3 October 2023 must be implemented.

The respondent maintains that the proposed wording of the condition is appropriate given that the respondent is seeking an updated TIS (proposed condition 15) and therefore the reference to the existing TIS in the applicants' amended condition is not supported.
Given that the Tribunal does not consider that a condition should be imposed requiring a revised TIS, the proposed condition should reference the recommendations outlined in the TIS dated 3 October 2023 as put forward by the applicant.

Proposed condition 21

Prior to a building permit issuing, a revised Acoustic Report prepared by a qualified acoustic engineer to be submitted in a manner and form approved by the City of Bunbury, detailing proposed attenuation and mitigation measures to meet the applicable noise levels prescribed under the Environmental Protections (Noise) Regulations 1997 shall be submitted to and endorsed by the City of Bunbury.

The applicant objects to this condition in its entirety. The applicant says that the Environmental Acoustic Assessment dated October 2023, annexure 2 to the witness statement of Mr Reynolds, satisfies this condition and submits that if the Tribunal is satisfied about acoustics, then there is no need for any further report. The applicant contends that the condition serves no planning purpose, it lacks nexus, and it would be unreasonable.
The respondent maintains that if development approval is granted, it would be appropriate for an updated acoustic report in support of the development to be submitted because new information and detail about the proposed development has emerged during the course of the hearing. The respondent pointed to two aspects, being the new calculations based on the revised plans and need to address noise from deliveries.
Given the Tribunal's finding in respect to this issue, the imposition of a condition is unnecessary as the Environmental Acoustic Assessment dated October 2023, annexure 2 to the witness statement of Mr Reynolds, satisfies this proposed condition.

Proposed conditions 22 and 23

22.Prior to a building permit issuing, a qualified acoustic engineer shall review the construction drawings and certify to the satisfaction of the City of Bunbury that the documentation/plans incorporate all the necessary design and construction noise attenuation elements specified within any endorsed Acoustic Report.
23.Before the development is occupied, a qualified acoustic engineer shall certify to the satisfaction of the City of Bunbury that the recommendations of the endorsed Acoustic Report relating to design and construction have been implemented. All ongoing operation requirements are to be carried out in accordance with the endorsed report.

The applicant objects to the proposed conditions and suggests the following rewording of the conditions:
Condition 22
Prior to a building permit issuing, a qualified acoustic engineer shall review the construction drawings and certify to the City of Bunbury that the documents/plans incorporate the three matters identified in point 1 on page 13 of the Environmental Acoustic Assessment Report by Herring Storer Acoustics dated October 2023.
Conditions 23
Before the development is occupied, a qualified acoustic engineer shall certify to the City of Bunbury that the three matters identified in point 1 on page 13 of the Environmental Acoustic Assessment Report by Herring Storer Acoustics dated October 2023 have been implemented.
The applicant submits that the amended conditions go to the heart of Mr Reynolds recommendations and that a qualified acoustic engineer review and certify that the recommendations have are incorporated into the plans/document and that there have been implemented.
The respondent submits that if it is accepted that an updated acoustic report is required, then it would logically follow that proposed conditions 22 and 23 should be maintained as it is important to validate the acoustic report predicts given the marginal compliance with the Noise Regs.
Given that the Tribunal does not consider that a condition should be imposed requiring a revised Environmental Acoustic Assessment, proposed conditions 22 and 23 should reference the Environmental Acoustic Assessment dated October 2023, annexure 2 to the witness statement of Mr Reynolds. The form of the proposed conditions as put forward by the applicant are acceptable.

Proposed condition 24

Before a building permit issues, a waste management plan is to be submitted for approval to the specifications and satisfaction of the City of Bunbury. The plan is to detail how waste will be stored, handled and removed.

The only area of dispute is the timing for the submission of a waste management plan (WMP). The draft condition requires the WMP to be submitted for approval before a building permit is issued. The applicant argues that the timing for WMP be prior to the commencement of the use.
The respondent prefers the WMP to be submitted before a building permit issue as the plan is to detail how waste will be stored and it is possible that the storage of waste could include some works component that may need to be dealt with as part of a building permit application.
The Tribunal agrees with the respondent's position and considers that the is the WMP should be provided before a building permit.

Applicant's additional condition

The applicant suggests that the ongoing operational requirement as identified in the noise assessment that no music to be played in any outdoor areas at any time be imposed as a condition.
Although this matter will be capture in proposed condition 6 h), given the importance of ensuring that no music is to be played in any of the outdoor areas a separate condition should be imposed.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent on 29 November 2022 to refuse to grant development approval under the City of Bunbury Local Planning Scheme No 8 (LPS 8) for a child care premises at No 88 (Lot 1) Beach Road, Bunbury is set aside and a decision is substituted that development approval is granted under LPS 8 for a child care premises as shown on plans SK01, SK05 to SK09 (inclusive) dated 20 July 2023 subject to the conditions in Attachment A.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
9 MAY 2024

ATTACHMENT A
1.Subject to the conditions of this development approval, all development shall be in accordance with the approved development plans SK01, SK05 to SK09 (inclusive) dated 20 July 2023 which form part of this development approval.
2.This development approval will expire if the approved development has not substantially commenced within four (4) years from the date of issue of the approval.
3.All works required to satisfy a condition of this approval are required to be installed/constructed and maintained in accordance with the approved plans and conditions of approval for the life of the development.

General

4.The primary and secondary street fence is to be constructed in accordance with amended plans SK01 and SK05 to SK09 dated 17 October 2023.
5.The outdoor play area is to be setback 3 metres from the northern boundary.
6.The boundary fence in the north-west corner is to be constructed in accordance with amended plans SK01 and SK05 to SK09 dated 17 October 2023.
7.Before the development is occupied, a revised version of the Operational Management Plan prepared by SNS and dated May 2022 must be endorsed by the Chief Executive Officer of the City of Bunbury and the use of the site shall comply with that revised Operational Management Plan at all times. The revised Operational Management Plan is to address the following operational matters:
(a)Parking (including the management of after hours and parenting sessions) and drop offs;
(b)staff numbers and shift times;
(c)child numbers and age groups;
(d)deliveries;
(e)days and hours of operation;
(f)community and neighbours;
(g)waste management; and
(h)noise management.

8.At all times the hours of operation shall be from Monday to Friday 6.30 am to 6.30 pm, with no operation on weekends or public holidays.
9.Except with the prior written consent of the City of Bunbury and compliance demonstrated through a revised Acoustic Report prepared by a qualified acoustic engineer, the approved use shall only be open for child drop off from 7.00 am Monday to Friday.
10.All the times the development is limited to 67 children and 13 staff member on site at any one time.

Construction Management
11.Prior to construction, a Construction Management Plan (CMP) is to be submitted for approval to the specifications and satisfaction of the City of Bunbury. The CMP must address the following issues where applicable:
(a)The protection of existing trees in the adjacent verge;
(b)Public safety and amenity;
(c)Site plan and security;
(d)Contact details of essential personnel, construction period and operating hours;
(e)Community information, consultation and complaints management plan;
(f)Noise, vibration and dust management;
(g)Dilapidation reports of No 90 Beach Road and No 13 Karri Street;
(h)Traffic, access and parking management;
(i)Waste management and materials re-use and/or recycling;
(j)Earthworks, excavation, land retention/piling and associated matters;
(k)Stormwater and sediment control; and

The approved CMP must be always complied with during the construction of the development.
12.Prior to the commencement of construction, a damage bond to the value of $15,480 is to be paid to the City of Bunbury.
13.Before the development is occupied, any alterations, relocation and/or damage of existing infrastructure within the road reserve shall be completed and/or reinstated to the specification and satisfaction of the City of Bunbury.

Access and Parking
14.Before a building permit issues, detailed design plans shall be prepared in accordance with relevant Australian Standards, Austroad Guidelines and City of Bunbury requirements for all access, carparking and pedestrian movement requirements to the satisfaction of the City of Bunbury. Once plans are approved construction is to be in accordance with the approved plans and to be completed before the development is occupied.
15.Before the development is occupied, one of the three options outlined at pages 18 and 19 of the Transport Impact Statement by Shawmac Consulting Civil and Traffic Engineers dated 3 October 2023 must be implemented.
16.At all times, the pedestrian footpath is to be maintained over the vehicle crossover to reinforce pedestrians have right of way.

Stormwater and Wastewater Management
17.Before a building permit issues, a detailed plan of the proposed stormwater management must be submitted for approval and implemented in accordance with the approved plan prior to the development being occupied. A minimum of 1m² of storm water storage for each 65m² of impervious area must be provided on site in accordance with the City of Bunbury's Information Guide – Stormwater Disposal from Private, Commercial and Industrial Properties.
18.Before the development is occupied, the property must be connected to the Water Corporation reticulated sewerage system.

19.Prior to a building permit issuing, a qualified acoustic engineer shall review the construction drawings and certify to the City of Bunbury that the documents/plans incorporate the three matters identified in point 1 on page 13 of the Environmental Acoustic Assessment Report by Herring Storer Acoustics dated October 2023.
20.Before the development is occupied, a qualified acoustic engineer shall certify to the City of Bunbury that the three matters identified in point 1 on page 13 of the Environmental Acoustic Assessment Report by Herring Storer Acoustics dated October 2023 have been implemented.
21.Before a building permit issues, a waste management plan is to be submitted for approval to the specification and satisfaction of the City of Bunbury. The plan is to detail how waste will be stored, handled and removed.
22.Before commencement of construction, a landscape plan must be submitted for approval to the specifications and satisfaction of the City of Bunbury. The landscape plan must address the following:
(a)A site plan of proposed landscaping, including not less than three (3) advanced trees to be planted within the car parking area. Advance trees are to be planted in 90L or larger container and must be a minimum 2 metre height and 2 years ages at the time of planting;
(b)A site plan of existing and proposed development with natural and finished ground levels;
(c)The location, species and size of existing vegetation to be retained and vegetation to be removed;
(d)Exact species, location and number of proposed plants;
(e)A key or legend detailing proposed species types grouped under the subheadings of tree, shrub and ground cover;
(f)Mulching or similar treatments of garden bed including edges;
(g)Details of reticulation or landscaped areas including the source of the water supply and proposed responsibility for maintenance';
(h)Treatment of paved areas (parking and pedestrian areas);
(i)Screening of service, utility and waste storage areas; and
(j)Fence material, height and treatment.

Before the development is occupied, the landscaped area(s) must be planted, established and reticulated in accordance with the endorsed landscape plan(s). These areas must be maintained as landscaped areas at all times and to the satisfaction of the City of Bunbury.
23.No music to be played in any outdoors areas at any time.

Neighbouring Premises	Calculated Noise Level (dB(A))
	Children Playing	Mechanical Services
	Children Playing	Day Period	Night Period
84 Beach Road	45	28 (33)	27 (32)
18 Karri Street	46	29 (34)	28 (33)
13 Karri Street	47	27 (32)	26 (31)
90 Beach Road	40	24 (29)	23 (28)
105A and B Beach Road	43	23 (28)	23 (28)