Stevsand Investments and ORS and City of Nedlands
[2009] WASAT 36
•3 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: STEVSAND INVESTMENTS & ORS and CITY OF NEDLANDS [2009] WASAT 36
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 4 DECEMBER 2008
DELIVERED : 3 MARCH 2009
FILE NO/S: DR 274 of 2008
BETWEEN: STEVSAND INVESTMENTS & ORS
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town Planning - Application for planning approval for a proposed change of use from 'showroom' to 'office' - Off-street car parking bays - Onstreet car parking bays - Tandem car parking bays - Use of public transport, motorcycles or bicycles - End of trip facilities - Amenity
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 1.3, cl 3.7, cl 5.1(b), cl 5.4.1.3, cl 5.4.1.4, cl 5.5.1, Table 2, Table 3, Sch I, Sch II, Sch III
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 250(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
The decision under review is affirmed and the application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr I Rogers
Respondent: Mr C Slarke
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Burnett and Town of Cambridge [2006] WASAT 29
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143
Slusarczyk and City of Stirling [2008] WASAT 194
SPB (Australia) v Town of Claremont [2003] 35 SR (WA) 32
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the City of Nedlands to not allow a change of use of some 250 square metres of ground floor 'showroom' space to 'office' space at No 81 Stirling Highway, Nedlands.
The State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters relating to car parking standards, on-street car parking bays (current and proposed), proposed onsite 'tandem' car bays and the likely effects of the proposal on the amenity of nearby residents.
The State Administrative Tribunal determined that although there was a convincing case to use the discretionary provisions of cl 5.4.1.4 of the City of Nedlands Town Planning Scheme No 2 in relation to car parking requirements, it was not convinced that the quantum of the reduction sought was justified and, if granted, could place at risk a further reduction in the amenity of nearby residents in Kinninmont Avenue.
The application for review was dismissed.
Introduction
The application for review, dated 18 July 2008, was lodged by Stevsand Investments Pty Ltd and Peppercorn Enterprises Pty Ltd (applicants) against a decision of the City of Nedlands (respondent, City or Council) on 24 June 2008 to refuse an application for planning approval for a proposed change of use at No 81 (Lot 280) Stirling Highway, Nedlands (subject land).
The application for review was lodged under the provisions of s 250(1) of the Planning and Development Act 2005 (WA).
The Notice of Refusal of Application was relayed to Planning Solutions (Aust) Pty Ltd (Agents for the applicants) on 2 July 2008 in the following terms:
Council refuses the proposed change to use at No 81 (Lot 280) Stirling Highway Nedlands to remove the 'Showroom' component from the previously Mixed Use Development and replace it with additional 'office' use as per application on plans dated 11 April 2008 due to the following reasons:
(1)the car parking available for the site is not in compliance with Town Planning Scheme No 2, Schedule III; and
(2)the development originally included Showroom use within the development to ensure the effects of car parking were negligible and the removal of the Showroom component significantly increases the car parking shortfall which will therefore adversely affect the surrounding environment.
Subject land
The subject land can be described as lot 280 on Plan 3492 and is shown on Certificate of Title Volume 8, Folio 283A.
The subject land is located on the north-west corner of Stirling Highway and Kinninmont Avenue and has an area of 1,012 square metres. It has a frontage to Stirling Highway of 22.1 metres and a frontage to Kinninmont Avenue of 41.87 metres.
The predominant land use in Kinninmont Avenue is 'residential' with a variety of single residential dwellings and grouped dwellings.
Legislative and policy framework
The subject land is zoned 'urban' in the Metropolitan Region Scheme (MRS) and 'office/showroom' with an additional use (No 103) of 'Restricted R60 Grouped and Multiple Dwellings' under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme).
Respondent's position
The position of the respondent is outlined in a statement of issues, facts and contentions dated 17 October 2008. It contends:
(a)there is an existing car parking problem in Kinninmont Avenue as evidenced in residents' submissions;
(b)an 'office' use is recognised as having a higher parking demand than a 'showroom' use as it will have a higher number of on-site employees;
(c)whilst the City would like to encourage the use of public transport and other non-vehicular forms of commuting, the distance between the subject land and the nearest train station at Loch Street (approximately 2 kilometres) and the Central Business District (CBD) (approximately 7 kilometres) make it unrealistic to assume that a significant proportion of employees will use buses and trains to commute to and from an office workplace;
(d)modifications made to plans and submitted to the Tribunal on 25 September 2008 are unlikely to impact the shortfall due to:
(i)it is unrealistic to assume that a significant proportion of professional office employees will use motorcycles or bicycles to commute to work, and the respondent has no way of controlling the way employees will commute to work;
(ii)the perpendicular bays proposed on the street verge are not on the applicants' land, and their proximity to Stirling Highway will be a safety hazard;
(iii)the 'tandem' bays proposed do not comply with the requirements of TPS 2, Sch II;
(e)the subject land differs from the other office/showroom developments in Subiaco, Leederville and Claremont as it is a relatively high density area with a high intensity of use, but is relatively further from the CBD and not as well serviced by public transport; and
(f)the requirements of Sch III of TPS 2 are suitable and should not be varied for a development due to its parking limitations and parking shortfalls that already exist in the streets immediately surrounding the development.
Applicants' position
The position of the applicants is outlined in their statement of issues, facts and contentions dated 6 November 2008. It broadly contends:
(a)the parking issues and concerns of residents in Kinninmont Avenue are connected with the management of parking and not the provision of parking, of which there is adequate supply;
(b)demanding strict compliance with the parking requirements of the Scheme is contrary to the City of Nedlands Transport Strategy;
(c)the proposed verge parking bays are not a safety hazard and can be addressed by requiring the applicant to obtain consent to construct the bays from the responsible authority prior to the commencement of any works;
(d)statistics from the Australian Bureau of Statistics demonstrate an increase in motorcycle/scooter registrations, particularly in Western Australia, from which it can be reasonably inferred that an increasing number of commuters use motorcycles/scooters to travel to work;
(e)given the minor nature of the parking shortfall, it is not necessary for a 'significant proportion' of employees to use scooters, motorcycles or bicycles to journey to work for the impacts to be mitigated;
(f)the area is not high density, but is predominantly low density (R10) with some medium density (R35) to the north and east. The majority of dwellings have sufficient space to accommodate several vehicles within the garage and driveway;
(g)the housing densities are significantly lower than in the vicinity of the CBD and transport hubs in Subiaco and Leederville;
(h)the area is well serviced by public transport;
(i)it is more likely that office employees will utilise public transport to attend work, as opposed to customers attending a bulky goods showroom;
(j)the parking provisions of the Scheme are outdated and excessive when compared to other similar localities and Schemes and do not take into account modern vehicle usage patterns;
(k)the proposed change of use is likely to contribute to mitigating the demand for parking in the locality, at peak periods, and likely not to compound the existing parking issues;
(l)the respondent, in approving Scheme amendments 164 and 169, has deemed it appropriate to reduce the parking requirements for similar developments in close proximity to the subject land;
(m)the amenity of the locality will not be compromised if the proposed change of use from 'showroom' to 'office' is approved; and
(n)the parking requirements of the Scheme can be varied in the exercise of discretion under cl 5.4.1.4
Planning issues
The principal planning issues are:
(a)Would the proposed change of use to remove the 'showroom' component of the development and replace it with an 'office' component be likely to create an unacceptable parking shortfall for the development?
(b)Would the proposed change of use outlined in (a) above be detrimental to the amenity of the immediate locality?
Assessment of proposal
Background
The background to the proposal is contained within the witness statement, dated 20 November 2008 of Craig Anthony Shepherd, a qualified town planner and Senior Strategic Planning Officer with the City, and in the witness statement, dated 20 November 2008 of Benjamin William Doyle, a qualified town planner and senior planner at Planning Solutions (Australia) Pty Ltd.
(a)At the Ordinary Meeting of Council on 14 March 2006 an approval was granted for a three storey mixed development on the subject land comprising 'office', 'showroom' and 'multiple dwelling' uses, an undercroft car parking area and three (3) on-street perpendicular car parking bays. The approved development comprised:
(i)showroom: 254 square metres gross leasable area (GLA);
(ii)office: 488 GLA;
(iii)residential: two apartments;
(iv)thirtytwo on-site car parking bays; and
(v)three on-street car parking bays within the Kinninmont Avenue road reserve.
(b)On 22 February 2008 the applicants lodged a change of use application (Application for Planning Approval - Form 1) to change the 'showroom' component to 'office'.
(c)Following discussions between the parties, the applicants submitted additional information and amended plans on 11 April 2008.
(d)The application for a change of use was advertised between 10 April 2008 and 28 April 2008 on the bases of an additional shortfall of 8 car parking bays (making an overall shortfall of 9 car parking bays).
(e)A total of 10 submissions were lodged with all referring to the parking shortfall.
(f)The application was refused at an Ordinary Meeting of Council on 24 June 2008 for the reasons outlined in [7] above.
(g)An application for review, dated 18 July 2008, was lodged with the Tribunal and, following an unsuccessful mediation, amended plans were submitted to a directions hearing on 25 September 2008. The Tribunal invited the respondent to reconsider its decision (based on the amended plans) as provided for under s 31 of the State Administrative Tribunal Act 2004 (WA).
(h)At the Ordinary Meeting of Council on 23 September 2008 it resolved to re-affirm its previous refusal of 24 June 2008.
In relation to this review the Tribunal will consider the matter based on the amended plans which include:
(i)office: 833 square metres GLA;
(ii)residential: two apartments;
(iii)thirty-three on-site car parking bays (including 2 tandem bays);
(iv)six on-site scooter parking bays;
(v)four on-site bicycle parking bays;
(vi)eight off-site car parking bays in the adjacent Kinninmont Avenue road reserve.
Legislation and policy provisions
City of Nedlands Town Planning Scheme No 2
Under cl 1.3 the 'intent' of the Scheme includes:
… It is proposed to maintain the existing character and density of residential land with only such non-residential uses as are necessary to service the needs of the district's residential population, except for those uses which may be located along major transport routes within the 'Scheme area'.
The permissibility of various uses within the Scheme zones is outlined in the 'Table 1 - Use Class Table'. A 'showroom' and 'office' use are permitted (P) uses within the 'office/showroom' zone.
Notwithstanding the requirements of the Use Class Table, cl 3.7 of TPS 2 makes provision for additional uses to be permitted on land specified within Sch 1. The subject land is specified in Sch 1 as 'Additional Use A 103' with a permitted additional use of 'Residential R60 Grouped and Multiple Dwelling'.
Clause 5.1(b) of TPS 2 requires that a person shall not commence or carry out the development of any land:
within a zone other than a residential zone except in accordance with the development standards set out in Table 2.
Under cl 5.4.1.3:
The Council may on application by a person seeking planning approval agree to vary a standard in Table 2 or Table 3.
The car parking requirements are outlined in Sch III of TPS 2. For an 'office' use, 4.75 bays are required per 100 square metres of GLA with the qualification that two in every three spaces are set aside for employees.
The car parking requirements for a 'showroom' are 2.2 bays per 100 square metres of GLA or 1 space per employee, whichever is the greater, with the qualification that two spaces in every three are to be set aside for employees.
Under cl 5.4.1.4 the Scheme states:
… the Council may on application by a person seeking planning approval vary the parking requirements in Schedule 3 hereto, or impose conditions on the location and design of car parking spaces, taking into account:
(i)the number to be roofed or covered and the manner of roofing or covering;
(ii)the number to be below natural ground level;
(iii)the means of access to each space and the adequacy of vehicle manoeuvring areas;
(iv)the effect on the amenity of adjoining premises, including potential effects of spaces should later be roofed or covered and the suitability or adequacy of proposed screening or natural planting;
(v)the provision of suitable pick up and setting down bays.
The amenity provisions are covered in cl 5.5 of TPS 2:
… may refuse to approve any development if in its opinion the development would adversely affect the amenity of the surrounding area having regard to the likely effect on the locality in terms of the external appearance of the development, traffic congestion and hazard, noise or any factor inconsistent with the use for which the lot is zoned.
Western Australian Planning Commission - Policy No DC 1.5 (Bicycle Planning)
In the 'Introduction' to the policy it states:
1.1The aim of bicycle planning is to provide for the safe and convenient movement of cyclists. It seeks to increase mobility for people without access to a car, and to encourage a transfer of journeys from private cars to bicycles …
The policy objectives include:
2
•To make cycling safer and more convenient through the provision of endoftrip facilities and by the provision of better cycle route networks.
•To ensure that the needs of cyclists are recognised and provided for by planning and road construction authorities.
•To encourage more work … trips to be made by bicycle through the provision of more (and better) cycling facilities.
…
•to ensure adequate consideration is given to the provision of cycling facilities in planning studies and in the implementation of statutory planning controls.
Under 'Bicycle Parking and EndofTrip Facilities' the policy states:
3.4The provision of appropriate bicycle facilities through the imposition of development conditions dealing with such matters as the type, number and location of bicycle parking facilities, and the installation of showers and change rooms is supported for such locations as:
…
•offices
…
Western Australian Planning Commission - DC 1.6 (Planning to support transit use and transit oriented development)
The policy defines 'transit oriented precincts' in this way:
Research into the relationship between accessibility and the use of transit facilities consistently indicates that there is a common 'threshold' for walking to those facilities. This equates to:
•about 10 15 minutes' walking time, or an 800m distance, for rail stations.
•about 5 7 minutes' walking time, or 400m, for bus stops located on bus routes with multiple bus services that are high frequency of 15 minutes or less during peak periods …
The 'Policy Objectives' in (3) include:
…
To ensure the optimal use of land within transit oriented precincts by encouraging the development of uses and activities that will benefit from their proximity and accessibility to public transport …
Under cl 4.6 (Precinct Planning) the policy advises:
… local governments should have particular regard to matters such as:
…
•the development and application of scheme parking standards that reflect the availability within the precinct of transit facilities and that provide discretion to vary standards …; and
•the potential to use planning provisions to provide incentives for appropriate development in transit oriented precincts, including reduced parking standards and floor space bonuses.
Western Australian Planning Commission (Liveable Neighbourhoods)
This document is an operational policy that includes under its 'Principal aims':
…
6.To facilitate new development which supports the efficiency of public transport systems where available, and provides safe, direct access to the system for residents …
Under the heading "Key changes from conventional practice' in relation to 'activity centres' the policy advises:
…
•Parking requirements may be reduced where the mix of uses, the parking management and the availability of other access modes justify reduction.
•Onstreet parking is important, and is incorporated on most streets and counted towards the overall parking requirements.
City of Nedlands Transport Strategy (2006)
The matter of 'Public Transport' is addressed in the following way:
3.The City of Nedlands has well established, but under utilised, public transport modes and routes. While lower densities generally affect the provision of widely available and frequent public transport services, the City of Nedlands is comparatively well serviced by both buses and trains as a result of its proximity to Perth; unfortunately patronage from Nedlands is relatively low.
The matter of 'Parking' is explained:
8.Parking is an important factor that affects people's choice of transport mode. Parking strategies can make a positive contribution to achieving a balanced transport system. Capping the availability of parking spaces in commercial areas can improve safety and amenity and enhance business viability if local density is sufficient.
The relevant 'Action Plans' include:
…
8.3Develop and implement parking policies which complement use of public transport.
…
10.3Ensure new developments include facilities for cycling …
10.4Promote verge development policies to complement adjacent land use …
City of Nedlands Travel/Smart Local Action Plan (2006 2009)
Action Point 41 recommends:
Investigate opportunities, with the Local Government regulations, to reduce the maximum [sic] required parking bays in commercial development. This would apply when the proposed development is close to frequent public transport services or when you can expect increased cyclist numbers through the provision of bike lockers and shower facilities.
The matter of car parking standards
In the witness statement of Mr Doyle, he argues that the parking requirements for an 'office' use within the City are substantially higher than surrounding local governments. He contends that, based on the proposed change of use, 39.57 bays would be required in the City of Nedlands but only 22.35 bays in Cottesloe, 27.8 bays in Claremont and 21 bays in Subiaco.
He also notes in the 'Joint Witness Statement of Benjamin William Doyle and Craig Anthony Shepherd' dated 26 November 2008 (Joint Statement No 1) that:
… the car parking requirements of TPS No 2 for an 'office' use are greater than all but one other metropolitan local government, and the proposed onsite car parking provision would be fully compliant in a substantial majority of metropolitan local government areas, including the immediately surrounding local government areas of Cottesloe, Claremont and Subiaco.
In his witness statement, Mr Shepherd argues:
(a)it is inappropriate to compare the subject land with Cottesloe, Claremont and Subiaco as they each have ribbon retail strips with direct access to convenient and regular bus and train networks. In contrast, the subject land is located along a bus route with inadequate frequencies and the nearest train service is some 2 kilometres away;
(b)it is realistic to assume that those parking in Cottesloe, Claremont and Subiaco will often utilise reciprocal car parking arrangements by visiting multiple tenants during the same visit. The proposed office use could not employ reciprocal car parking arrangements with surrounding tenants, given the inconsistency of office with the surrounding showroom uses; and
(c)in Cottesloe, Claremont and Subiaco, there are public car parking stations near to ribbon retail strips. No public parking is available within walking distance of the subject land.
The matter of Scheme Amendments No 164 and 169
In the Joint Statement No 1, it advises:
19The experts agree two (2) previous Scheme Amendments (being Amendment Nos. 164 and 169) to TPS No. 2 imposed reduced parking requirements for 'Office' uses on three (3) lots fronting Stirling Highway within 810 metres of the Land (being Lot 306 (95) Stirling Highway and Lots 204 & 205 (153155) Stirling Highway). Specifically, the experts agree Amendment Nos. 164 and 169 impose a car parking requirement of 1 bay per 50 [square metres] [Gross Leasable Floor Area] for 'Office' uses.
20.The experts agree that if the car parking standards imposed under Amendment Nos. 164 and 169 were applied to the subject application, the subject application would result in an 'onpaper' surplus of car parking.
An explanatory statement given by Mr Shepherd in Joint Statement No 1 advises:
20.1Mr Shepherd considers that although these properties were approved under Scheme Amendments, the provisions and guidelines which were employed were based on those proposed under the 2004 Draft Town Planning Scheme No. 3. Since the time that these Scheme Amendments were approved, the [WAPC] has since not approved TPS No. 3 for [advertisement] and has advised the City of Nedlands to refine and review this scheme. Given this advice, all provisions proposed under this draft are now subject to review, thus resulting in the 2004 Draft TPS No. 3 becoming not a seriously entertained option in the opinion of the Council and Administration.
The position of the applicant on this matter was outlined by Mr Rogers, counsel for the applicant, in his opening statement to the Tribunal:
Both those properties and the present property are located on Stirling Highway. Both have access to the same means of public transport flowing down Stirling Highway and it will be interesting to understand on what basis this particular site is so severely and so significantly distinguished from those two lots that make it incapable of exercising a discretion here where discretion was exercised and in fact a scheme amendment was introduced in relation to those two lots, which are not dissimilar in terms of the uses that are provided.
The matter of onstreet parking bays
As part of the March 2006 development approval, three car parking bays (perpendicular bays) were approved within the street verge at 90 degrees to the kerb.
In his opening statement to the Tribunal, Mr Slarke, counsel for the respondent, advised:
The three perpendicular bays in Kinninmont Avenue were proposed by the applicant voluntarily. They weren't a requirement of the City and they weren't counted in the carparking calculation. Nevertheless, they were approved by the City as part of that plan.
In the 'Joint Statement of Behnam Bordbar and Michael Klyne, (Joint Statement No 2) dated 1 December 2008, it was agreed under their [6]:
…
iv.The constructed 3 on street parking bays as part of the development are only 4.8m long and this length is substandard. Small vehicles can use these bays.
v.The proposed onstreet parking cannot be set aside for the exclusive use of the development.
…
Nevertheless, the current application provides for a total of eight perpendicular bays and Mr Michael Klyne, a qualified engineer and planner and Principal/Director of Klyne Consultants Pty Ltd, advised in his witness statement of 20 November 2008 for the respondent:
6.1The design for the additional 8 offsite parking bays … shows the proposed kerbline of the western side of Kinninmont Avenue aligned with the end of the 90 [degree] parking bays. This removes the pavement widening for the 'bell mouth' at the intersection of Stirling Highway … Conflicting (opposing) vehicle movements are therefore required to be accommodated within a reduced width road pavement. The potential for sideswipe type crashes is increased, particularly when vehicles turn (left or right) into Kinninmont Avenue from Stirling Highway.
6.2Drivers of vehicles leaving the 90 [degree] parking bays on the western side of Kinninmont Avenue will have their view of oncoming traffic along Kinninmont Avenue through their rearview mirrors obscured by virtue of the parked vehicles adjacent. … The 6.3 metre wide pavement will require the reversing vehicle to traverse the two opposing traffic lanes before being able to travel either northbound or southbound in the street.
In his witness statement, Mr Shepherd supports the view of Mr Klyne:
14.3The 3 recently constructed perpendicular car parking bays are considered to be unsafe and undesirable by the City and should be replaced with parallel verge parking bays as a minimum measure …
Again, at the hearing Mr Shepherd advised:
… The City has a proposal which has also been carried out at a parallel street of Smyth Road, and the point the purpose of those works is to landscape the corner truncation of Kinninmont Avenue onto Stirling Highway up to the 12metre requirement of Main Roads and then place parallel car parking bays … that has been identified by the Director … of technical services as being part of our forward works program, which will be carried out for Kinninmont Avenue and other streets in the area.
A contrasting view was put by Mr Bordbar, Managing Director of Transcore Pty Ltd, in his Statement of Evidence dated 18 November 2008. In relation to the proposed eight perpendicular bays, he advises:
26.… In my opinion, these bays do not represent a safety hazard as the traffic turning into Kinninmont Avenue is relatively low volume and the proximity of the end bay to Stirling Highway meets the relevant standards. The Austroads document 'Guide to Traffic Engineering Practice Part II Parking' in Section 7 Figure 7.2 (refer Attachment 8) indicates that the separation of a 90 degree onstreet parking bay to the corner should be 12m. The Applicant has provided this separation.
The matter of 'tandem' car parking bays
The current plan shows two bays (numbers 33 and 34) as 'tandem' bays which obstruct bays 24, 25, 26 and 27.
In his opening statement, Mr C Slarke from McLeods Barristers and Solicitors and counsel for the respondent, advised:
There are 33 onsite car parking bays proposed, but two of those, as I've mentioned, are tandem bays. The City says that that is not an appropriate design for the car parking layout and those bays should not be approved whatever the outcome of the proposal is. So we say, in effect, those should be discounted or taken out of the calculation when we're working out what the shortfall is.
In contrast, Mr Rogers in his opening statement advised:
In relation to the proposal of having two tandem bays, clearly that is something that is perhaps innovative … and it is certainly standard practice for most office uses, as well as residential uses, where you have vehicles parked one behind the other, and there's an understanding that vehicles will have to be moved to allow access and departure from those bays. And really the management of a tandem bay situation is nothing more than the exercise of commonsense.
The matter of amenity
As a result of the advertising phase for a change of use, a number of submissions (10) were received from nearby residential landowners, including a submission from the six owners at 'Kooyong' at 79 Stirling Highway. These submissions were basically against the idea of a car parking shortfall on the subject land and argued:
(a)The vehicle overflow would park in Kinninmont Avenue causing disruption and noise.
(b)There is already parking in the street from patrons of the nearby Captain Stirling Hotel and the Babyland showrooms.
(c)Kinninmont Avenue has a narrow carriageway with some drivers resorting to parking on the verge and across driveways.
In the Joint Statement No 1, the matter of amenity was addressed in this way:
47.The experts disagree as to the nature and quantum of any existing 'parking problem' on Kinninmont Avenue.
47.1Mr Shepherd considers that prior to the original application being submitted in 2004, the City had received car parking complaints in Kinninmont Avenue for excessive street parking. When the original application was being advertised, a significant number of submissions received raised the issue of car parking shortfall. Since construction and the change of use application has been advertised, the car parking complaints have increased. The issue in relation to this is that if up to 13 cars can not be accommodated on site, then they will be forced to park in the street on Kinninmont Avenue. This will further exacerbate the parking problem.
47.2Mr Doyle considers numerous site inspections over several months, undertaken during and outside of business hours, have not revealed any evidence to support the Respondent's allegations of an existing parking problem in Kinninmont Avenue. Mr Doyle considers any parking problem which may have previously existed would most likely have been the result of tradespeople attending the land in association with the construction works, during which time the onsite parking was not available for use, and that any problem is/was therefore temporary in nature.
In closing, Mr Rogers advised for the applicant:
The applicant suggests that really what is at issue is the management of parking along Kinninmont Avenue, not necessarily the supply or demand for parking along Kinninmont Avenue. If those complaints have been longstanding and if they do continue, then there's a failure on the part of the City's enforcement team to regularise parking along Kinninmont Avenue.
The matter of transport policy, statistics and assumptions
In his witness statement, Mr Bordbar argues:
(a)The City's Transport Strategy is aimed towards a more balanced transport system through a reduction in car usage and an increase in public transport, walking and cycling. It states:
Parking strategies can make a positive contribution to achieving a balanced transport system. Capping the availability in parking spaces in commercial areas can improve safety and amenity and enhance business viability if local density is sufficient.
(b)The City's Travelsmart Local Action Plan suggests:
(i)Encourage businesses and local work places to provide End of Trip facilities for customers and staff.
(ii)Encourage the use of public transport amongst staff for business trips.
(iii)Investigate opportunities within the Local Government regulations, to reduce parking bays in commercial developments from Council maximum requirements. This would apply when the proposed development is close to frequent public transport services or when you can expect increased cyclist numbers through the provision of bike lockers and shower facilities.
(c)The Department of Planning Travelsmart Household Final Evaluation Report (Town of Vincent), July 2008, advises that the implementation of the Travelsmart initiative by local authorities has led to an 11% reduction in car use as driver trips and increases in public transport use of 24%, walking 45% and cycling 72%.
(d)The Department of Planning and Infrastructure paper titled 'Travel Demand Management Scheme in Perth A Public Transport Perspective' indicates that as a result of the Travelsmart programmes:
(i)Car driver trips in South Perth, Cambridge, Subiaco and Melville were reduced by 14%, 7%, 12% and 12%.
(ii)Bike trips increased in those same local authorities by 61%, 67%, 25% and 75% respectively.
(iii)Public Transport usage in those same local authorities increased by 20%, 16%, 10% and 11% respectively.
(e)That based on the Australian Bureau of Statistics Motor Vehicle Census 2003 to 2007, that motorcycle registrations had increased by 35.7%, whilst passenger vehicle registrations had increased by 10.6% only.
In a series of questions from Mr Slarke to Mr Bordbar, the following points were made:
a)Although motorcycle usage is increasing as a percentage of the overall passenger vehicle fleet based on the ABS figures, it was still only 4.3% in 2007. In contrast, some 13.9% (six bays) for scooters and 9.3% (four bays) for bicycles was being set aside in the current proposal.
b)That only 2% of trips are made by bicycle and yet 9.3% of parking bays are set aside for bicycle usage.
The reaction of Mr Bordbar to the questions in [58] above was that it was not a valid correlation to compare national statistics to a specific case in Nedlands.
A further argument advanced by Mr Bordbar was that during a typical weekday, the traffic generation of an office is about the same as a high intensity showroom and twice as much as a low intensity showroom. However, the peak trading times for a showroom occur on Thursday evenings and Saturdays when the office component would not be operating and so there would be less effect on the nearby residential amenity.
Again, in his closing remarks, Mr Rogers advanced the proposition that with a showroom on the ground floor, that patrons are more likely to park in the street, not knowing that basement parking is available. However, with a ground floor office use, that patrons would more readily expect to park onsite and that demand for onstreet parking would diminish.
Conclusions
The application for review was lodged against a decision of the respondent to refuse a proposed change of use of some 250 square metres of ground floor 'showroom' space to 'office' space on the subject land on the northwest corner of Stirling Highway and Kinninmont Avenue, Nedlands.
The central issue in the review, as accepted by counsel for both parties, was whether the discretion provided by cl 5.4.1.4 of TPS 2 should be examined in this case or not.
In undertaking this review, the Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of car parking standards, onstreet car parking bays (current and proposed), 'tandem' bays and amenity.
The context for the review was that in March 2006 an approval was granted for a three storey mixed use development with showrooms on the ground floor (252 square metres), first floor offices (490 square metres) and two residential apartments on the second floor. A total of 32.6 car parking bays were required (rounded to 33 bays) for this composite development and 32 were provided. In addition, three perpendicular car parking bays were approved within the adjacent street verge but were not included as part of the overall car parking calculation.
The proposed change of use anticipates that the ground floor 'showroom' area will become 'office' and that the first floor 'office' area will be expanded. The effect of these changes leads to a total office area of 833 square metres (254 square metres ground floor and 579 square metres first floor).
As a result of these proposed changes, there is an increase in the car parking bay requirement from the current 32 bays to 44 bays, with the applicant providing 33 onsite bays (two of which are 'tandem' bays), six scooter bays and four bicycle bays. Also, the number of onstreet perpendicular bays are proposed to be increased from three to eight.
Of importance in this matter are the two WAPC policies, DC 1.5 and DC 1.6, with the former encouraging the use of more work trips to be made by bicycle and the provision 'endoftrip' showers and change room facilities, and the latter encouraging the development of uses and activities that will benefit from their proximity and accessibility to public transport. DC 1.6 also advises that incentives within 'transit oriented precincts' could include reduced parking standards.
In this matter, the Tribunal accepts that the proposal before it seeks to encourage the use of both scooters and bicycles and provides for 'endoftrip' facilities. Also, the Tribunal has no difficulty accepting that the subject land is located within a 'transit oriented precinct' having regard to the close proximity of public transport (bus) and that the number of peak hour bus movements are more than adequate along Stirling Highway to cater for trips to the Perth CBD and Fremantle and all points in between.
However, in respect of DC 1.6, the Tribunal acknowledges the point made in Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143 (Cityrun) that:
51.… Although DC 1.6 is a relevant matter for consideration, it is principally directed towards strategic change facilitated by discussion between the Commission and relevant local governments in terms, among other things, of parking requirements for development within transit oriented precincts. Policy DC 1.6 does not prescribe a development standard for onsite parking provision.
This development standard is prescribed in Sch III of the Scheme where 4.75 car parking bays are required for 'offices' for every 100 square metres of GLA, with the qualification that two in every three spaces are set aside for employees. This is more than double the requirement for 'showrooms' at 2.2 car parking bays for every 100 square metres of GLA.
The argument being put by the applicant is that the respondent's car parking standards in a 1985 TPS 2 are out of date and excessive in comparison with all but one metropolitan local authority. However, as explained in the Cityrun decision:
… The fact that the Parking Policy has not been reviewed since 1994 and that the Town of Vincent's policy requires fewer car bays and prescribes specific adjustment factors for proximity to public transport and provision of end of trip facilities, does not mean that the Council or the Tribunal on review is entitled to treat the Parking Policy other than as a focal point of the decision-making process, much less to determine the application on the basis of a policy control which applies in an adjoining local government area. …
Again, in Slusarczyk and City of Stirling [2008] WASAT 194 it explains:
41.… it is the Tribunal's task to apply such instruments faithfully in accordance with the maker's intention. Where policy is expressed as it is here, mainly in legislative form and is otherwise rational and capable of application it ought to be applied as it was intended. This is so whether or not "better" models of regulation might exist or can be imagined. Similarly, any exercise of discretion should have regard to the underlying purposes of the instrument empowering the decision-maker to exercise their discretion.
Of interest here is a decision to amend its Scheme (Amendments Nos 164 and 169) for two nearby properties with less stringent parking standards based on a proposed 2004 draft TPS 3. As anomalous as these examples look, the City is in the process of reviewing draft TPS 3 and it would appear, on the evidence of Mr Shepherd, that neither the administration nor the Council intend to pursue the less stringent standards in a finalised TPS 3. Accordingly, the Tribunal places little weight on the content of Amendments 164 and 169.
Before the Tribunal can conclude this matter, there are other issues to consider. The first of these is that there are three existing car parking spaces on the street verge adjacent to the subject land and the applicant is seeking to increase these to eight spaces. Such a provision is in line with the Liveable Neighbourhoods policy, which appears to support onstreet parking to be counted towards the overall parking requirements, and the respondent's Transport Strategy which promotes verge parking to complement adjacent land uses.
Of relevance is the fact that the respondent did support the establishment of the existing three perpendicular bays but now resiles from that position in favour of landscaping the corner truncation of Kinninmont Avenue and Stirling Highway and to construct four parallel parking bays.
The reason for this is that it now believes the perpendicular bay configuration is unsafe and, after considering the comparative evidence of Mr Klyne and Mr Bordbar, the Tribunal is of like mind.
It is also the view of the Tribunal that the three existing perpendicular bays (or four future parallel bays) cannot be set aside for the exclusive use of the development, but only serve as an option for visitors to the subject land if the bays are available.
On the question of the two proposed 'tandem' bays, the Tribunal accepts the argument of the respondent that they would be less than ideal, particularly in a brand new development, but it is the case that the 'tandem' bays, if occupied, and the four other bays that they effectively block, could be managed, albeit with some difficulty and inconvenience.
The Tribunal does not accept the proposition from the respondent that such spaces should not be approved, or somehow discounted in the overall car parking calculation, for the simple reason that each 'tandem' bay is capable of being occupied by a single vehicle.
On the matter of amenity, the views of nearby residents are particularly important as it is they who have to tolerate vehicles parked outside their homes on the street verge. As stated in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48]:
… in undertaking [the] objective inquiry, [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity.
However, in order for the Tribunal to fairly interpret the parking situation in Kinninmont Avenue, it was provided with photographic evidence from both parties and it is clear that there were difficulties when construction work was under way but that these problems may well have lessened since. That is not to say that the problem does not still exist, with patrons from the nearby Captain Stirling Hotel and Babyland continuing to park in Kinninmont Avenue at various times.
In Burnett and Town of Cambridge [2006] WASAT 29, the sensitivities of neighbours was explained in this way:
30.… there [can often be] some unintended, albeit understandable, oversensitivity regarding … amenity concerns, which, if the matter were to be viewed more objectively, would not necessarily result in concerns expressed to such a degree.
In this case there are clearly sensitivities from residents exposed to car parking in Kinninmont Avenue, and it is possible that they have simply concluded that the change of use application will automatically lead to an increase in the problem. Although the residents have not been exposed to the extensive information before the Tribunal, they may nevertheless still be right.
In concluding this matter, there is no information before the Tribunal, nor could there be, as to the likely overall office workforce, their mode of transport to work and the likelihood of some car drivers switching from car transport to public transport, motorcycles or bicycles.
Such information requires a look into the future and, in its absence, the Tribunal must rely on the information before it.
What is clear is that in the original application, approved in March 2006, 32.6 car parking spaces were required in line with Sch III of TPS 2 and 32 were provided. What the Tribunal is now being asked to accept is that the provision of six motorcycle bays and four bicycle bays will compensate for the lack of onsite car parking spaces required by the Scheme and to rely on various State and local authority policy documents for guidance.
The Tribunal would concede that there is, in the circumstances of this case, a legitimate argument to use the discretionary provisions of the Scheme. The question is 'How far should the Tribunal depart from the requirements of Sch III of TPS 2?'
In Cityrun it states at [51]:
The Tribunal considers that, in the circumstances of this case, a shortfall of approximately 32% in onsite parking provision for the commercial component is unacceptable.
In the same decision it states at [53]:
The Tribunal considers that the incorporation of end of trip facilities (in addition to proximity to public transport) properly allows a reduction in on-site parking provision for the commercial component at the upper end of Ms Round's range of five to ten spaces. A reduction of ten spaces, or approximately 17%, in on-site parking provision for the commercial component is, therefore, appropriate in the circumstances of the case.
In SPB (Australia) v Town of Claremont [2003] 35 SR (WA) 32 it was advised at [64] on the need for decisionmakers not '[to depart] too far from the relevant planning instruments'.
In this case there is a need for 44 car parking spaces with 40 to be set aside for the commercial development. Only 29 (two of which are 'tandem' bays) are provided. This is a 27.5% reduction from the Sch III of TPS 2 requirements.
In the view of the Tribunal, it is not convinced that this 27.5% reduction would in reality be adequately compensated for by the motorcycle and bicycle bays and could, if granted, place at risk a further reduction in the amenity of nearby residents in Kinninmont Avenue.
Orders
The Tribunal makes the following orders:
1.The decision under review is affirmed.
2.The application for review is dismissed.
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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