SUNKAR and CITY OF CANNING - [2010] WASAT 162

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SUNKAR and CITY OF CANNING [2010] WASAT 162

MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 7 SEPTEMBER 2010

DELIVERED : 5 NOVEMBER 2010

FILE NO/S: DR 193 of 2010

BETWEEN: LUCIENNE SUNKAR
Applicant
AND
CITY OF CANNING
Respondent

Catchwords:

Town planning - Development application - Change of use - Temporary use - Use not listed - Tattoo studio - Whether the proposed use is permissible in the Mixed Business zone - Whether the proposal is compatible with other uses in the Mixed Business zone - Whether the proposal will have an adverse impact on the amenity of the locality - Whether the proposal can be approved as a temporary use

Legislation:

Metropolitan Region Scheme
City of Canning Town Planning Scheme No 40, cl 2.2.1, cl 2.2.4, cl 2.2.5, cl 2.2.6, cl 2.2.6.3, cl 2.3.6.1, cl 2.3.7.1, cl 2.2.6.5, cl 6.2, cl 6.3.3, Table 2, Table 6B
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review dismissed
Development approval refused

Category: B

Representation:

Counsel:

Applicant: Mr L James
Respondent: Mr D McLeod

Solicitors:

Applicant: Kott Gunning
Respondent: McLeods Barristers & Solicitors

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a 'temporary use - tattoo studio' at Unit 3, 11 Augusta Street, Willetton.
The City of Canning was of the view that the proposal was a use not listed and therefore prohibited in the Mixed Business zone. The applicant argued that an approval was possible as a temporary use under cl 2.2.6 of the City of Canning Town Planning Scheme No 40, which addresses issues including use compatibility and impact on the amenity of the locality.
The Tribunal found that the proposed tattoo studio use was not incompatible with the use of adjoining properties or the land use in the immediate locality. The Tribunal also found that the proposed use would not prejudice the amenity of the locality.
Although the Tribunal found that the proposal satisfied these aspects of the test for temporary use, the Tribunal was not satisfied on the evidence provided that the subject site was no longer required for the purpose for which it was zoned and therefore found that the proposal could not be approved as a temporary use.
The application for review was dismissed and the decision of the City of Canning to refuse development approval was affirmed.

Introduction

These proceedings involve an application brought by Ms Lucienne Sunkar (Ms Sunkar or applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Canning (respondent, Council or City) made on 8 June 2010 to refuse development approval for a 'temporary use - tattoo studio' at Unit 3, No 11 (Lot 49) Augusta Street, Willetton (Unit 3 or tattoo studio).

Site and locality

The proposed tattoo studio is to be located in Unit 3 which is one of three existing single storey units located at No 11 (Lot 49) Augusta Street (corner of Isla Street), Willetton (Lot 49 or subject site). Unit 3 has an area of 331 square metres and was previously used as an aquarium supplies showroom. The other units on the site are currently occupied by an artificial plant showroom, a swimwear showroom and a wetsuit showroom. There are 22 car parking spaces on site and these are available for all of the businesses at Lot 49.
The rear boundary of Lot 49 adjoins residential properties. The opposite corner of Isla Street and Augusta Street is occupied by a bicycle showroom and an automobile repair business. Augusta Street contains a variety of businesses which include offices and a funeral parlour.
The Tribunal had the benefit of a view of the subject site and the surrounding area on 19 August 2010. The tattoo studio has been fitted out with a reception area leading to individual tattoo booths and an area to the rear of the unit containing tea room and toilets. Signage to the front of the unit has also been installed.

Proposed development

The proposed development is a tattoo studio with between six and eight workstations, a piercing area and a reception area. It is proposed that there will be four employees (three tattooists and one administrative staff) on the premises at any one time. The hours of operation are to be 10 am to 7 pm Monday to Sunday. The application is for a temporary approval of five years.

Background

On 11 March 2010, the applicant lodged a development application for a change of use to a 'temporary use - tattoo studio' on the subject site.
The application for change of use was advertised pursuant to cl 2.2.6.3 and cl 2.3.7.1 of the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme) and 14 landowners in the surrounding area were notified. The Council received eight responses, three objecting and five with no objection. A further three objections from property owners not notified were received.
A council officer report was prepared for the council meeting held on 8 June 2010.

Council's decision

At its council meeting held on 8 June 2010, the City resolved to refuse the development application for the following reasons:
1.The proposal is for a use not listed, which is not permitted within the Mixed Business zone.
2.The proposed use will detract from the intended function of the Mixed Business zone, will conflict with orderly and proper planning of the locality and will have an adverse impact on the amenity of the locality by virtue of issue including the hours of operation and traffic.

Planning framework

The site is zoned Industrial under the Metropolitan Region Scheme and is zoned Mixed Business under the TPS 40.
Clause 2.2.1 of TPS 40 classifies land into zones according to Table 2 which identifies the Industrial zones as Mixed Business, General Industry and Light Industry.
Clause 6.2 of TPS 40 states the general objectives of the Industrial zone as:
(a)to provide for a range of industrial and associated development appropriate to the service and employment needs of the community and so located as to provide for the safe and efficient movement of goods and materials;
(b)to encourage the establishment of attractive and efficient industrial estates and mixed industrial/commercial areas ensuring that acceptable levels of safety and high standards of amenity are provided through the application of basic design and landscaping controls.
Clause 6.3.3 of TPS 40 states the specific purpose and intent of the Mixed Business zone as follows:
The purpose and intent of the Mixed Business zone is to provide a suitable planned environment to accommodate a wide range of light industrial and service commercial uses together with small-scale enterprises which are not readily accommodated in existing Commercial Centres.

Issues

The key issues that arise from this review are:
•Whether the proposed use is permissible in the Mixed Business zone.
•Whether the proposal is compatible with other uses in the Mixed Business zone.
•Whether the proposal will have an adverse impact on the amenity of the locality.
•Whether the proposal can be approved as a temporary use.

Use classification

TPS 40 does not contain a specific use class for tattoo studio. The respondent's planning expert, Mr Peter Goff, prepared a witness statement in which he expressed the view that the proposal should have been classified as a shop for the purpose of assessment under TPS 40. A shop is an 'IP' use in the Mixed Business zone which 'means that the use is not permitted unless it is determined by the Council to be incidental to a use determined by the Council to be the predominant use and is approved as such by the Council'.
Clause 2.3.6.3 of TPS 40 states:
"IP" Uses - The decision of the Council:
(a)identifying the predominant use of any land; and
(b)as to whether any use is incidental to the predominant use;
is a factual decision to be made upon the Council's assessment of the circumstances of any case. Having determined that the use involved in an application for Development Approval is properly an 'IP' use, the Council shall deal with the application in accordance with the provisions of paragraph 2.3.6.1 as if the use involved was a 'P' use.
Clause 2.3.6.1 of TPS 40 states:
"P" Uses - If an application under this Scheme for Development Approval involves a 'P' use, the Council shall not refuse the application by reason of the unsuitability of that use, but notwithstanding that, the Council may in its discretion impose conditions upon the Development Approval and if the application proposes or necessarily involves any building or other work the Council upon considering that building or other work may exercise its discretion as to the approval or refusal and the conditions to be attached to the proposed development.
The applicant's planning expert, Ms Julie Brunner, argued in her witness statement that if the proposal was to be considered a shop it could be approved as an 'IP' use as the tattoo studio 'is in fact incidental to other uses on the subject lot as the proposed use is to occupy only one of the four tenancies on this lot … being incidental to the overall use of the site, that of showroom'.
Mr Denis McLeod, the respondent's representative, contended that if the use class was a shop, the proposal could not be approved as it was his view that 'there is no predominant purpose for which the Land is being used, to which the Tattoo Parlour might be regarded as incidental'.
The Tribunal agrees with Mr McLeod in that if the appropriate use classification was a shop then the proposal could not be approved as it is not an incidental use to a predominant use as required by cl 2.3.6.3 of TPS 40 above.
During the hearing, notwithstanding the joint witness statement of the planning experts prepared by Ms Brunner and Mr Goff in which they agreed 'that the proposal may be considered to be a "Shop"', Mr Laurie James, the applicant's representative, and Mr McLeod both argued that the tattoo studio should be considered a use not listed for the purposes of assessment under TPS 40.
In this case, the Tribunal agrees with Mr James and Mr McLeod, and considers the proposed tattoo studio to be a use not listed for the purpose of assessment under TPS 40.
Clause 2.2.4 of TPS 40 provides the following in regard to uses not listed:
If a particular use is not mentioned in the list of use classes in the Zoning Table or is not included by reference in the definition of any of the use classes in the Zoning Table, such use shall be deemed to be a prohibited use.
Clause 2.2.5 of TPS 40 then deals with additional or prohibited uses as follows:
2.2.5.1If the Council considers that any use should be permitted or permissible on any land under which the Zoning Table is not permitted or permissible in the zone applicable to that land, without amending the zone of the land or the permissibility designations for the relevant use class in the relevant zone in the Zoning Table, the Council may initiate an amendment to the Scheme to indicate that the use is permitted or permissible as an additional use on that land and such land is to be included in Appendix 5 to the Scheme.
2.2.5.2If the Council resolves under paragraph 2.2.5.1 that a use should be permitted or permissible on any land as an additional use, the Council shall to the extent that it is reasonable to do so, apply or impose the minimum development standards and requirements which would be imposed for development in the zone within which the land is situated, in addition to any requirements or restrictions relevant to the additional use which may be set out in Appendix 5 hereto.
2.2.5.3The insertion of a general condition applying to a use in Appendix 5 in respect of any land shall not limit the power of the Council to impose further conditions on any approval to commence or carry out development on that land, and the conditions in Appendix 5 shall be enforceable in the same manner as conditions imposed on an approval.
2.2.5.4If in any respect the Council considers that use which under the Zoning Table would be permitted or permissible on that land should have a different permissibility designation (including prohibited uses) or should be permitted or permissible only subject to restrictions or conditions, then the Council may stipulate the different permissibility designation restrictions or conditions or that land in Appendix 5.
2.2.5.5To use or permit or cause to be used any land contrary to the provisions of Appendix 5 is a contravention of this Scheme.
2.2.5.6Appendix 5 being part of the Scheme, additions or changes shall only be made to the Appendix by the normal procedures for a Scheme Amendment.
The proposed tattoo studio, as a use not listed under TPS 40, is a prohibited use in the Mixed Business zone without a Scheme amendment as set out in cl 2.2.5.
Mr McLeod argued during the hearing that a Scheme amendment was the most appropriate mechanism for the applicant to obtain approval for the proposed tattoo studio.
Mr James argued that the application is for a temporary use and the Council has discretion to approve the proposal as a temporary use under cl 2.2.6 of TPS 40.
Clause 2.2.6 of TPS 40 'Temporary Use' states:
2.2.6.1Notwithstanding any other provision of the Scheme to the contrary, if the Council considers that any use should be permitted on any land temporarily, it may give Development Approval strictly limited in time as a temporary use.
2.2.6.2The Council may approve a temporary use in respect of any use class, but it shall only give such approval in respect of a use which would not ordinarily be permissible in the relevant zone where:-
(1)no building would be placed on land unless it could be readily adapted for use for a purpose permitted in the zone, or which might preclude or inhibit the ultimate use of the land for a permitted purpose;
(2)the use would be compatible with the use of adjoining properties or the predominant use of land in the immediate locality; and
(3)the use would not be prejudicial to the amenity of the locality.
2.2.6.3Before approving a temporary use under the provisions of this subclause the Council shall advertise the proposal and consult with the public in accordance with the manner prescribed for 'SA' uses under the Scheme.
2.2.6.4The Council shall not approve a temporary use for more than 5 years.
2.2.6.5The Council may only approve a temporary use on land if that land is not required for the purpose for which it has been zoned.
2.2.6.6The Council shall not approve a temporary use in the Residential Zones.
2.2.6.7Notwithstanding the generality of the foregoing, the Council in approving a temporary use may impose conditions appropriate to the circumstances, including but without limiting the generality of the foregoing, a condition requiring the proponent to enter into an agreement in regard to the termination of the use.
It was Mr James' contention that the proposed tattoo studio use is compatible with the use of the adjoining properties and the predominant use of the land in the immediate locality.
The business uses … are extremely varied and you can't say that there is any use which is of a nature quite inconsistent with the concept of a tattoo studio being there at all.
It was Mr McLeod's contention that the proposed use would not be compatible with the locality due to the location of the subject site at the edge of the Mixed Business zone and adjacent to residential properties.
Evidence was given by Mrs Jennifer Marian Olsen, who lives at 33 Freesia Way, which is diagonally opposite 11 Augusta Street. Mrs Olsen was concerned with the extended operating hours of the tattoo studio in regards to noise and parking issues as well as the type of clientele who may attend the premises.
The Tribunal had the benefit of a view of the subject site, including the position of Mrs Olsen's residence in relation to Unit 3, during the course of the hearing. There were a number of cars parked near Mrs Olsen's residence which appeared to be associated with the adjacent automobile repair business. The unit occupied by the tattoo studio could not be seen from Mrs Olsen's residence as it is the furthermost unit from the corner on the subject site. The car park of the subject site contained two or three cars plus those of the Tribunal party.
With regard to the amenity of the locality, Mr McLeod argued that the proposal would be prejudicial to the amenity of the locality by virtue of its location adjacent to a residential area. He also commented on the issue of how a tattoo studio is perceived by the community noting that Ms Sunkar was aware of the associated stigma and referred to it in a letter to the City.
Mr James argued that there was no evidence that 'having a tattoo studio in a mixed business area somehow lowers the tone of the area or is going to attract undesirable elements who will break into adjoining premises and generally degrade the locality … it is simply a matter of perception'.
In regard to compatibility with the use of adjoining properties and of land in the immediate locality, the Tribunal agrees with Mr James that the proposed tattoo studio use would not be incompatible with the various businesses in the area.
The Tribunal is of the opinion that merely the location of the subject site adjacent to a residential area does not prejudice the amenity of the locality. There was no convincing evidence that the proposed tattoo studio would be detrimental to the amenity of the Mixed Business zone by way of operating hours or traffic.
The Tribunal is of the opinion that the proposed tattoo parlour would not be incompatible with the predominant use of land in the immediate locality. It is not convinced that a tattoo studio would have any more detrimental effect on the neighbouring residential area than the existing automobile repair business or the bicycle shop or the nearby funeral parlour. The issue of car parking will be addressed separately below.
With regard to approval as a temporary use, the proposed development must also satisfy cl 2.2.6.5 of TPS 40 which specifies that the subject site not be required for the purpose for which it has been zoned.
Mr James argued that this is difficult for the applicant to prove. In support of her position that the land is not required for mixed business use, the applicant submitted photographs of 20 premises that appeared to be available for lease 'taken within two minutes drive of the subject premises'.
It was the evidence of Ms Kirsten Semple, daughter of the owner of Unit 3, that the property had been advertised for approximately six months and that Ms Sunkar was the only person from whom her mother, the owner of Unit 3, had received a lease application.
Mr Goff gave evidence that there are approximately 400 separate businesses in the Willetton Mixed Business zone and that if 20 were currently vacant, as Ms Sunkar believed, then that equated to a vacancy rate of 5%. It was Mr Goff's belief that there was a vacancy rate of approximately 10% to 12% in all industrial zones in the metropolitan area in 1997 and that a 5% rate would be considered to be relatively low.
The Tribunal is not convinced that the subject site is not required for the purpose for which it has been zoned. The fact that the subject site was unoccupied at the time the application was made and had been advertised for six months is not sufficient justification that it is not required for mixed business use.
The Tribunal has determined that the proposed tattoo studio would not be a use that would be incompatible with the use of adjoining properties or the use of land in the immediate locality; nor would the proposed use be prejudicial to the amenity of the locality. But in regard to cl 2.2.6.5 of TPS 40 specifically, the Tribunal is not convinced that the land is not required for the purpose for which it has been zoned. The Tribunal therefore finds that the proposal cannot be approved as a temporary use.

With regard to parking, Table 6B contains the parking requirements for industrial land use. The parking requirements for a shop are one space per 15 square metres nett lettable area which may be reduced to one space per 20 square metres. All other uses are to be negotiated with the Council.
It was the evidence of Ms Sunkar that there are to be a total of eight employees with four on site at any one time. That includes three tattoo artists and one receptionist. Mr James summarised the parking bays required as three for tattoo artists; three for clients; three for waiting clients; and one for the receptionist. This gives a total of 10 bays required for the operation of the tattoo studio as described. There are 22 bays on the subject site, of which 10 or 11 are required by the existing businesses, leaving 11 or 12 available for the tattoo studio.
The Tribunal agrees with Mr James that, based on the evidence, the existing parking on the subject site should be sufficient for the operation of the tattoo studio as described throughout the hearing. Mrs Olsen's concerns regarding parking are based on the proposition that a parking problem exists in the area. It may be the case that the automobile repair business adjacent to her property and the operation of the funeral parlour have caused parking problems in the area but the evidence before the Tribunal does not lead to the view that the proposal will cause extra parking problems.

Conclusion

The Tribunal agrees with the parties that the proposed tattoo studio is appropriately classified as a use not listed for the purposes of assessment under TPS 40 and therefore a prohibited use. A mechanism for approval of a prohibited use is by a Council initiated Scheme amendment to include the proposed use as an additional use in Appendix 5 of the Scheme.
In this case, the applicant has applied for a temporary use under cl 2.2.6 of TPS 40 for which the test includes assessment of use compatibility and the impact on the amenity of the locality.
The Tribunal has determined that the proposed tattoo studio would not be incompatible with the use of adjoining properties or the predominant use of land in the immediate locality, nor would the proposed use be prejudicial to the amenity of the locality. The Tribunal has also determined that for the operation of the tattoo studio business as described during the hearing, the existing 22 car parking bays on the subject site will be sufficient.
Notwithstanding the above, cl 2.2.6 of TPS 40 also states that the land must not be required for the purposes for which it has been zoned. In this case, the Tribunal has determined that the evidence provided does not support the applicant's position that the subject site is not required for the purpose for which it has been zoned and therefore finds the proposal cannot be approved as a temporary use.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 8 June 2010 to refuse development approval for a 'temporary use - tattoo studio' at Unit 3, No 11 (Lot 49) Augusta Street, Willetton is affirmed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER