STYANTS and CITY OF GOSNELLS - [2012] WASAT 70

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: STYANTS and CITY OF GOSNELLS [2012] WASAT 70

MEMBER: MS M CONNOR (MEMBER)

HEARD: 24 JANUARY 2012 AND 7 MARCH 2012

DELIVERED : 13 APRIL 2012

FILE NO/S: DR 248 of 2011

BETWEEN: EDWIN JOHN STYANTS
MERYL NYREE STYANTS
Applicants
AND
CITY OF GOSNELLS
Respondent

Catchwords:

Town planning - Development application - Reception centre Limited scale and frequency Access via shared private single lane accessway Whether consistent with objective of General Rural zone Zone objective includes 'to retain the rural character and amenity of the locality' Amenity impacts Effect on character of locality

Legislation:

City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 4.2, cl 5.5, cl 5.11.2, cl 5.13.1, cl 11.2, cl 11.3, Sch 1, Table 3A
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 16, s 252(1)
Residential Design Codes of Western Australia (2002)
Transfer of Land Act 1893 (WA), s 136

Result:

Application for review dismissed
Decision of the respondent affirmed

Category: B

Representation:

Counsel:

Applicants: Mr M Casselton (Acting as Agent)
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicants: TPG Town Planning & Urban Design (Town Planners)
Respondent: Algeri Planning & Appeals (Town Planners)

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

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79
Du Heaume and City of South Perth [2010] WASAT 111
Williams v City of St Kilda (1987) 29 APA 141

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Styants applied to the State Administrative Tribunal for review of the City of Gosnell's decision refusing planning approval to host a small number of weddings and garden parties at the rear of No 125 Connell Avenue, Martin. The particulars of the proposed development before the Tribunal were as follows:
•the allocation of a 200 square metre area (20 metres by 10 metres) as a marquee area adjacent to the southwest corner of the existing dwelling;
•the construction of a 1 metre high retaining wall (and associated filling/levelling of the area) outside the building envelope to the rear of the property, so as to provide a level surface to accommodate the proposed marquee;
•the construction of a toilet block inside the building envelope;
•a car parking area accommodating 29 car parking bays for attendees;
•a maximum of six garden weddings per year, between 7 am and 7 pm Monday to Saturday (mostly Saturday) from 1 September to 31 May;
•a maximum of 80 attendees at any wedding, with most expected to be smaller;
•all weddings being nonsmoking events;
•the provision of a security officer for the full duration of every wedding; and
•no amplified music being permitted.
The following two principal issues arose for determination in this matter:
1)The appropriateness of the proposed use, having regard to the objectives of the General Rural zone, particularly as to whether it will have an unreasonable impact on the amenity of the locality.
2)Whether a shared private single land driveway is an appropriate form of access for the proposed reception centre.
The Tribunal determined that the proposed use was not consistent with the objective of the General Rural zone 'to retain the rural character and amenity of the locality' as factors such as the noise emissions likely to be generated from the proposed development, the nature and intensity of vehicle movements in a concentrated period of time and the visual impact of the car parking area, would significantly diminish the existing and likely future amenity of the rural character of the locality. The application for review was therefore dismissed and the decision of the respondent affirmed.

Introduction

Mr and Mrs Styants (applicants) applied to the City of Gosnells (respondent or City) on 6 August 2010 for approval to host a small number of weddings and garden parties on the lawn at the rear of No 125 (Lot 51) Connell Avenue, Martin (subject land). Particulars of the original proposal included:
•weddings held on the weekends, usually once a month and generally between October and March;
•the erection of a marquee in the far southwestern corner of the subject land, situated between the existing dwelling and Canning River;
•a maximum of 100 attendees at any event, including caterers and any music groups;
•a commitment that music would not be allowed after 11 pm and that all attendees would leave the property before midnight;
•the construction of a 1 metre high retaining wall (and associated filling/levelling of the area) outside the building envelope to the rear of the property, so as to provide a level surface to accommodate the proposed marquee; and
•a grassed area capable of accommodating 29 car parking bays.
The applicants subsequently amended the original proposal in light of advice received from an acoustic consultant. The amended proposal reduced the hours of operation from 7 am 7 pm between Monday and Saturday, with amplified music being specifically excluded from the proposal (modified proposal).
The modified proposal was refused by the respondent at its meeting of 28 June 2011, stating the following reasons for refusal:
1)The prevailing subdivision pattern is defined by relatively small rural lots with shared vehicle access arrangements which is not conducive to the operation of the proposal.
2)The proposed use would be located sufficiently close to adjoining properties so as to reduce the rural amenity of the adjoining residents.
3)The proposed retaining wall and fill has the potential to further magnify noise and amenity considerations.
4)The proposed alterations to the common driveway would necessitate work on portions of the access leg which are owned by others, all of whom object to the proposed development.
5)The applicants have failed to adequately demonstrate that the development can appropriately manage effluent disposal.
On 20 July 2011, the applicants made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
The parties engaged in a mediation process facilitated by a Tribunal member which resulted in modifications to the original proposal (refer to Attachment A of Exhibit 3). It would seem that the proposal has been refined even further, the particulars of which are set out in the witness statement of Mr Murray Casselton (refer to Exhibit 10) at para 4.1 and are as follows:
•the allocation of a 200 square metre area (20 metres by 10 metres) as a marquee area adjacent to the southwestern corner of the house;
•the construction of a 1 metre high retaining wall (and associated filling/levelling of the area) outside the building envelope to the rear of the property, so as to provide a level surface to accommodate the proposed marquee;
•the construction of a toilet block inside the building envelope;
•a car parking area accommodating 29 car parking bays for attendees;
•a maximum of six garden weddings per year, between 7 am and 7 pm Monday to Saturday (mostly Saturday) from 1 September to 31 May;
•a maximum of 80 attendees at any wedding, with most expected to be smaller;
•all weddings being nonsmoking events;
•the provision of a security officer for the full duration of every wedding; and
•no amplified music being permitted.
It is the further refined modified proposal as detailed in Mr Casselton's witness statement that is the subject of this review.

Subject land

The subject land is part of a seven lot subdivision in a battleaxe configuration, is 1.0762 hectares in area, and contains an existing dwelling and outbuilding. Two of the bedrooms in the existing dwelling have been previously approved for, and are utilised as bed and breakfast style accommodation.
Vehicular access to the subject land from Connell Avenue is via a 3.2 metre wide formed carriageway which is approximately 280 metres long and is shared with five other properties. There are unsealed shoulders of 1.4 metres and 2.2 metres width either side of the formed carriageway. The battleaxe legs are held in private ownership and access arrangements have been established by the imposition of rights of carriageway easements under s 136 of the Transfer of Land Act 1893 (WA) at the time of the original subdivision. The accessway also includes a dedicated vehicular passing area (14 metres long) located approximately 180 metres from the intersection with Connell Avenue.
There is a building envelope of 3,605 square metres and a restrictive covenant on the subject land. The restrictive covenant prohibits the construction of buildings and the removal of any vegetation outside the building envelope area. The subject land also abuts the Metropolitan Region Scheme (MRS) reservation along Canning ִRiver, which forms part of a conservation category wetland (CCW) and a Bush Forever site.

Planning framework

The subject land is zoned Rural and abuts land that is reserved for Parks and Recreation in the MRS. According to the respondent, the necessary referrals to the appropriate public authorities have been undertaken in accordance with the Instrument of Delegation made pursuant to s 16 of the PD Act and, as such, delegation powers to determine the application under the MRS are conferred on the local government.
The subject land is zoned General Rural under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). The aims of TPS 6 are set out in cl 1.6 of the Scheme. The aims of the Scheme that are of particular relevance to this application are:
…
(c)To encourage the development of businesses which will strengthen the economic base of the district and provide convenient and efficiently located employment to the community.
(d)To ensure the orderly and proper use and development of land within the District.
(e)To protect and enhance the quality of the urban and rural living environments of the District …
…
(g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
...
Clause 4.2 of the Scheme specifies the objectives for each of the zones identified within the Scheme. The objective for the General Rural zone is as follows:
To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality.
Schedule 1 of TPS 6 defines 'rural pursuit' as:
… any premises used for
(a)the rearing or agistment of animals;
(b)the stabling, agistment or training of horses;
(c)the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d)the sale of produce grown solely on the lot,
but does not include agriculture extensive or agriculture intensive.
The proposed use has been classified by the respondent as 'Reception Centre' under TPS 6. The classification of the use is not in dispute. 'Reception Centre' for the purposes of TPS 6 means 'premises used for functions on formal or ceremonial occasions but not for unhosted use for general entertainment purposes'.
The use permissibility for a reception centre in the General Rural zone is 'A', which means:
that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with cl 10.4 of the Scheme.
The original proposal was advertised for public comment for 14 days in accordance with the requirements of TPS 6. A total of 34 submissions were received, 26 of which objected to the original proposal and seven submissions raising no objection. The original proposal was also referred to the Western Australian Planning Commission (WAPC), the Swan River Trust (SRT), the Water Corporation and the Department of Environment and Conservation (DEC). The WAPC advised that the proposed retaining wall and toilet block needed to be located a minimum of 11 metres from the southern boundary and a minimum of 38 metres from the western boundary so as to be outside the designated Bush Forever site. Neither the SRT nor the DEC raised any objections to the proposed development.
Clause 5.11.2 of TPS 6 relates to development in unsewered areas and states:
Where connection to a comprehensive reticulated sewerage system is not available, no development with an on-site effluent disposal in excess of that of a single house or single residential equivalent, shall be approved unless the proposed development is in accordance with the provisions of the Government Sewerage Policy.
It is intended that a Biosystems 2000 Aerobic Treatment Unit (ATU) be installed for onsite effluent disposal. The Department of Health has confirmed that the proposed development is capable of complying with the Government Sewerage Policy, and as such, cl 5.11.2 of TPS 6 is not an issue in this matter.
Clause 5.13.1 of TPS 6 specifies car parking requirements and provides as follows:
Unless otherwise provided by the Scheme, all non-residential development (other than a Residential Building) is required to provide concrete or bitumen sealed, kerbed, marked and drained onsite car parking in accordance with the requirements in Table No's. 3A and 3B. …
Tableִ3A of TPS 6 requires the following car parking to be provided for a reception centre:
1 space for every 4 seats or 1 space for every 4 persons the building is designed to accommodate or 1 space for every 4 [square metres] seating area, whichever is the greater, plus 1 space for every staff member present at any one time[.]
It is proposed that a total of 29 car parking bays will be provided on site, located on the grassed area adjacent to the common boundary with No 127 (Lot 50) Connell Avenue, Martin. The respondent is agreeable, if the Tribunal is minded to approve the application, to a variation to the requirement for the provision of concrete or bitumen sealed, kerbed, marked and drained onsite car parking, as conferred by cl 5.5 of TPS 6, as the proposed development would have significantly less adverse amenity impacts on the locality.
Clause 11.3 of TPS 6 provides authority for the City to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 11.2 of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the aims and provisions of the Scheme (cl 11(2)(a));
•the requirements of orderly and proper planning (cl 11(2)(b));
•the compatibility of a use or development with its settings (cl 11(2)(i));
•any social issues that have an effect on the amenity of the locality (cl 11(2)(j));
•the likely effect on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment (cl 11(2)(l));
•the preservation of the amenity of the locality (cl 11(2)(n));
•the relationship of the proposal to development on adjoining land or on other land in the locality … (cl 11(2)(o));
•whether the proposed means of access to and egress from the site are adequate, and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles (cl 11(2)(p));
•the amount of traffic likely to generated, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety (cl 11(2)(q)); and
•any relevant submissions received in the application (cl 11(2)(y)).

Issues

The following principal issues arise for determination in relation to this matter:
1)The appropriateness of the proposed use, having regard to the objectives of the General Rural zone, particularly as to whether it will have an unreasonable impact on the amenity of the locality.
2)Whether a shared private single lane driveway is an appropriate form of access for the proposed reception centre.
The Tribunal will address each of these issues in turn.

The appropriateness of the proposed use having regard to the objectives of the General Rural zone, particularly as to whether it will have an unreasonable impact on the amenity of the locality

Clause 11.2 of TPS 6 requires the City (and the Tribunal on review) to have regard to, among other things, 'the compatibility of a use or development within its setting', 'any social issues that have an effect on the amenity of the locality' and 'the preservation of the amenity of the locality'. Further, the objective for the General Rural zone is '[to] … retain the rural character and amenity of the locality'. 'Amenity', as defined in Sch 1 of TPS 6, 'means all those factors which combine to form the character of an area and include the present and likely future amenity'.
'Locality', for the purposes of this review, includes the subject land and the other lots within the subdivision that utilised the shared battleaxe leg access arrangement. The Tribunal notes that both Tonkin Highway and the land to the south, known as 'Harry Hunter Rehabilitation Centre' which is used for grazing, are factors that contribute to the character and amenity of the existing locality.
Both Mr Tim Price, Coordinator Planning Implementation at the City of Gosnells, called on behalf of the respondent, and Mr Murray Casselton, a town planning consultant, who both represented and gave evidence for the applicants, described the locality as more typical of a Special Rural area and that the surrounding development included rural lifestyle lots, generally developed with a single dwelling and associated outbuildings/stables. Mr Price characterised the locality as one that was 'private, secluded, high landscape value and a quiet area'. Mr Casselton described the locality as having 'relatively intensive equestrian land use characteristics'.
The respondent called two witnesses who were residents of the locality, Mr Michael Roe and Ms Sarah Hickson, to give evidence as to the character of the existing locality, as did the applicants. The Tribunal recognised in Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79, 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 characteristic which contribute to their residential amenity. …
The Tribunal, together with representatives of the parties, had the benefit of a view of the subject land, adjoining Lot 50 and the common accessway. From the evidence and from observations made on the view, the character of this locality is considered to be quite unique, given its close proximity to the Perth metropolitan area. It is a small enclave of small rural lots which contain single dwellings and associated outbuildings, serviced by a common accessway which also forms part of the feature of the estate. A fair description of the accessway is contained in Mr Roe's witness statement and reads as follows:
The driveway is quaint; it has cracking, depressions and soft broken edges. These defects are entirely in keeping with the nature; intended purpose and use of the small lot rural lifestyle properties the estate contains. The driveway meanders over the winter creek and under the lofty wandoo trees. It is as much a feature of the rural estate as the properties, trees and animals are.

The locality, in general, has significant vegetation cover, although the properties on the southern side of the accessway have less vegetation, with grassed paddocks and/or garden areas dominating the landscape. Timber post and rail fencing defines the edges of the lots, and it is evident that equestrian activities are a dominant element in the locality, as evidenced by the stables and the horse arena on Lot 50. The amenity that stems from the equestrian pursuits prevalent in this locality was seen positively by both Mr Roe and Ms Hickson, whereas the applicants found several of the attributes to be objectionable; these included dust emissions from the horse arena, constant use of the accessway to transport horses and equipment to and from the area and from property to property, and animals roaming between properties. The applicants did not find the amenity of the locality to be tranquil, due to the intense activities associated with the equestrian use and high levels of ambient noise generated by Tonkin Highway, a factor which is reflected in the Herring Storer Acoustic Assessment. The Tribunal accepts the applicants' assessment of the nature of activities undertaken in the locality; however, these activities are associated with a rural pursuit which is consistent with the zoning and general intent of the area, and are factors that form part of the rural character and amenity of the locality.
The Tribunal is required to consider the proposed development, having regard to the preservation of both the present and likely future amenity of the locality. There was no evidence before the Tribunal to suggest that, except for the potential impacts of the proposed development, the existing amenity would alter in the future.
The applicants contended that the proposed development would have negligible impacts on the amenity of the locality for the following five reasons:
1)the limited scale and frequency of the use;
2)the demonstrated capacity of the proposal to meet acoustic noise level requirements;
3)the demonstrated condition of the accessway as being suitable to accommodate proposed traffic levels and the provision of an appropriate passing lane to meet traffic movement requirements;
4)the strategic positioning of the temporary marquees, which maximises setback distances and visibility to other houses in the locality; and
5)the provision of a security officer to manage weddings and, in particular, to direct traffic and to enforce the nonsmoking requirement.
The applicants provided an assessment report prepared by Herring Storer Acoustics that found that '[n]oise level emissions associated with non[-]music events … are considered to marginally comply for day periods'. Further supporting commentary was later received from Herring Storer Acoustics advising that new traffic data issued by Main Roads WA affected the 'category that Tonkin Highway falls under in the vicinity of the nearest neighbouring noise sensitive premises' which 'alters the influencing factor by +2dB(A) hence compliance with the day period assigned noise levels is now calculated to be achieved by a greater margin than previously reported'.
In addition, the applicants submitted a Traffic and Parking Impact Report prepared by ML Traffic Engineers to demonstrate the suitability and capability of the accessway to accommodate the proposed development. This report was prepared based on the original planning concept and assumes a cap of 120 persons onsite during wedding functions. Using the most relevant car parking requirements of TPS 6, the report establishes that 30 onsite car parking spaces are required to be provided. The estimated existing hourly traffic movement along the private access road was calculated to be in the order of three to five twoway trips per hour, and approximately 35 to 45 twoway trips per day based on extrapolation of hourly sample data over a 24 hour period. The report considered the maximum hourly traffic generation of the original proposal to be in the order of 30 inbound or 30 outbound cars (not concurrent) and estimates, under a worst case arrival and departure scenario, that the additional traffic generated by the original proposal would increase the daily traffic flows on the private access road to around 100 to 130 twoway trips. This report concluded that the number of car parking bays provided and the layout on site is satisfactory for the proposed use. In addition, the report found that the increase in traffic generation from the original proposal is within the practical capacity of the accessway, and that there will be no operational issues during peak arrival and peak departure time at the intersection of the private access road and Connell Avenue. There was no evidence adduced by the respondent contesting the methodology or findings of the report.
It is noted that the modified proposal before the Tribunal reduces the number of attendees to a maximum of 80 persons, thereby reducing the additional traffic likely to be generated by an event. Mr Casselton, in closing submissions, adjusted the figures to reflect the modified proposal, and calculated the additional traffic generated by the proposal to be 40 to 47 twoway trips, with an additional eight twoway trips for service vehicles. Based on these figures, he estimated that the maximum daily traffic flow would decrease to 90 to 100 twoway trips. He also estimated the annual total of twoway trips generated by the modified proposal to be in the vicinity of 330 (based on six events), which equated to an increase of between 2% 2.5% on existing traffic levels.
The evidence suggests that the proposed development satisfies the technical requirements of the Noise Regulations and the Australian Standards in relation to offstreet car parking and the carrying capacity for a 3.2 metre wide private access road with movement typically being in one direction at a time.
However, as the Tribunal said in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39]:
Compliance with the Noise Regulations does not necessarily mean that noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
This is a case in which mere compliance with the Noise Regulations is not adequate to properly mitigate adverse impacts on the existing amenity of the locality. The Tribunal is of the view that noise associated with the concentrated vehicle movements on arrival and departure of guests, service vehicles and associated activities, including caterers, taxis and the like, vehicles parking, guests exiting and accessing their vehicles, guests walking to and from the parking area and congregating in a temporary marquee located approximately 65 metres from the nearest noise sensitive premises, which may all be compliant with the Noise Regulations, is not the type of noise that is expected in a rural environment such as this, and is likely to result in significant adverse noise impacts on adjoining and adjacent residences, thereby diminishing the existing and likely future amenity of the rural character of the locality.
Similarly, while the Tribunal accepts that the report by ML Traffic Engineers indicates that the accessway has the capacity to accommodate the extra traffic generated by the proposed development and that the annual percentage increase in daily traffic flow is proportionally small, it is the nature and intensity of vehicle movements in a concentrated period of time which will cause a significant reduction in the rural amenity and character of the locality.
Further, the parking area for the attendees' vehicles is located adjacent to the common boundary with Lot 50. Notwithstanding that this area is not intended to be paved and there is evidence that a vegetation buffer is being planted along the common boundary, when in use as a car park for the wedding receptions, the area will appear as an expansive area of car parking, which is not in keeping with the rural character of the locality and will have a significant detrimental impact on the visual outlook from the adjoining property.
While the applicants have attempted to reduce the impacts of such a use on the locality by limiting the scale and frequency of the operations, the Tribunal considers the degree of impact on the amenity of the locality resulting from the proposed development to be inconsistent with the objective of the General Rural zone 'to protect the rural character and amenity of the locality' and, therefore, an inappropriate use in this locality.

Whether a shared private single lane driveway is an appropriate form of access for the proposed reception centre

Although the respondent accepted the conclusion contained in the ML Traffic Engineers' report that the increased traffic generation from the proposed development is within the practical capacity of the accessway, it argued that the use of the accessway for the purpose of providing access for the proposed reception centre was inappropriate for the following three reasons:
1)the use of the accessway to service a commercial activity is not consistent with the purpose and intent of the original grant of easement, which was for the purpose of access to rural lots;
2)the accessway as it is currently constructed is inadequate, and an additional passing bay is considered to be necessary for safe access. The respondent contended that the construction of this bay would not be achievable, given that it would require approval from landowners not a party to this application; and
3)there are issues of liability and equity, as the applicants are only one of the owners of the shared accessway, and it appears that there is no regime in place for repairs and maintenance of the accessway.
The applicants asserted that the current right of carriageway arrangements for the shared accessway allows for the proposed usage and can be accessed by the public at any time and, therefore, as the evidence demonstrates, the accessway is capable of accommodating the infrequent traffic increase generated by the proposed development and, as such, is an appropriate form of access for the reception centre and can be supported. However, the applicants acknowledged that the current use and lack of maintenance arrangements for the shared accessway were already problematic, but considered this to be a matter to be resolved through the court system and should not have a bearing on the proposal before the Tribunal, as no modification to the accessway is required to support the proposed number of traffic movements.
The Tribunal accepts that there might be circumstances where a right of carriage easement could provide suitable access to a reception centre; however, the Tribunal is not persuaded that this is such a case. Although the easement arrangements would probably accommodate a lawful use of the subject land as applied for (cf Williams v City of St Kilda (1987) 29 APA 141 cited in Du Heaume and City of South Perth [2010] WASAT 111), for the same reason set out above, the amenity impact on the road (regardless of its precise status) suggests a negative answer on this issue.

Conclusion

For the above reasons, the Tribunal does not consider that the exercise of discretion should be granted, as approval to the proposed development is inconsistent with the objective of the General Rural zone 'to protect the rural character and amenity of the locality' and, therefore, an inappropriate use in this locality.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER