| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SWAMI KRUPA PTY LTD and CITY OF MELVILLE [2013] WASAT 171 MEMBER : MS R MOORE (MEMBER) HEARD : 25 JULY 2013 DELIVERED : 14 OCTOBER 2013 FILE NO/S : DR 372 of 2012 BETWEEN : SWAMI KRUPA PTY LTD Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords: Town planning Development application Change of use from residential to single consulting room and single dwelling Alterations and additions to existing residential building Refusal Residential zone Discretionary use in living area precinct Whether proposed development will have a detrimental impact on residential character and amenity of locality Orderly and proper planning Legislation: City of Melville Community Planning Scheme No 5, cl 2.3.1, cl 2.4, cl 2.4.1(f), cl 4.1, cl 4.2, cl 7.5, cl 7.5(d), cl 7.7, cl 7.8, Sch 1
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Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31 Result: Application for review dismissed
Respondent's decision to refuse development approval affirmed
Summary of Tribunal's decision: This matter involved an application for review of the refusal by the City of Melville of a development application for a change of use of an existing residential dwelling to consulting rooms for a urology practice on a residential zoned site in Leeming. As a result of mediation between the parties, a modified proposal was also considered and refused by the City of Melville.
The modified proposal, now the subject of the review, is the change of use of part of the existing dwelling to a single consulting room, and the renovation of the remainder of the existing building to be retained as a dwelling.
The City of Melville submitted that the proposal would have an adverse impact on the amenity and character of the area by virtue of increased traffic movements and the deterioration of the residential appearance of the area, particularly the visual impact of the car parking bays associated with the consulting room use.
The applicant argued that the proposal would improve the character and amenity of the locality by improving the architectural appearance of the existing building, and that the single consulting room would be used only 50% of the working week and would benefit the many local residents who were patients.
The Tribunal found that the consulting room would detract from the existing residential character of the locality because of the increase in intensity by locating both a consulting room and a dwelling on a single lot in an area dominated by single dwellings on single lots. The non-residential nature of the consulting room would be evident by the provision of a large hard paved area for the required car parking bays which would be clearly visible behind the new open aspect fence. The Tribunal was not convinced that the location of the consulting room on this site and the convenience for any local patients outweighed the amenity impacts on the immediate neighbours and the locality generally.
The application for review was dismissed and the City of Melville's decision to refuse the development proposal was affirmed.
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Category: B
Representation: Counsel:
Applicant : Mr P Webb (Acting as Agent)
Respondent : Mr A Stewart (Acting as Agent)
Solicitors:
Applicant : Peter D Webb & Associates (Town Planners)
Respondent : Greg Rowe & Associates (Town Planners)
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These proceedings involve an application brought by Swami Krupa Pty Ltd (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 Melville (respondent or Council) made on 29 October 2012 to refuse development approval for the change of use from residential to consulting rooms, and signage and additions to an existing building at No 1 (Lot 36) Shea Grove, Leeming (site).
Site and locality 2 The site is a corner lot located on the north-eastern corner of the intersection of Westminster Road and Shea Grove in Leeming. The site has a total area of 1,049 m2 with a frontage to Shea Grove of 29 metres and a frontage to Westminster Road of 23.1 metres. The northern side boundary is 30.5 metres and the eastern side boundary is 35 metres in length. 3 The site currently contains an existing single storey brick and tiled dwelling with vehicular access off both Westminster Road and Shea Grove. 4 The immediate locality consists primarily of residential dwellings on single lots, many of which are accessed via cul-de-sacs, but also includes nonresidential uses. These nonresidential uses include Leeming High School, Leeming Primary School and Leeming Medical Centre on the corner of Findlay Road and Westminster Road. 5 Some of the material before the Tribunal refers to a photography studio adjacent to the subject site. This property was pointed out to the Tribunal at the site view and discussed during the hearing. The owners of the property stated that they did not run a business from this location and the respondent confirmed that it had not granted an approval for a home occupation for a photography studio at this property.
Planning framework 6 The subject site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential with a density coding of R20 under the City of Melville Community Planning Scheme No 5 (CPS 5 or Scheme). (Page 5)
7 CPS 5 provides at cl 2.3.1 the following specific objectives in relation to housing: 8 Clause 2.4 of CPS 5 contains specific policies in relation to a number of areas and includes the following in relation to choice of housing type and non-residential activities in housing areas: 2.4.1 Housing 2.4.2 Environment and Heritage - Requirement for Preparation of Submissions and Guidelines for Development (Page 6)
2.4.5 Commerce (a) Choice of Location For the purpose of providing a choice of sites for different types of retail and commercial activity, the following locations shall be available: (i) Booragoon City Centre Precinct; (ii) Myaree Mixed Business Precinct; (iii) District and Community Centre Precincts; (iv) Home Stores which shall be located without disturbing local amenity; and (v) Living Area Precincts, as appropriate for home occupations at the discretion of the Council, which may require advertising; and (vi) City Centre, District Centre, Community Centre or Commercial Centre Frame Precincts as appropriate, for light and service industry at the discretion of the Council; The Local Commercial Strategy adopted by Council identifies (i) to (iii) of the above categories. … 2.4.6 Community Services (a) Location For the purpose of establishing local health centres, future community services including family centres, education, health, welfare, recreation and cultural facilities, shall be located so as to be readily accessible to each neighbourhood having due regard to existing schools, commercial centres and public transport. … 9 Clause 4.1 of CPS 5 divides the Scheme area into a number of precincts. The subject site is located within the Living Area Precinct L1 - Leeming (Living Area Precinct L1). 'Living Area Precinct' (Page 7)
is defined in Sch 1 of CPS 5 as an area with predominantly residential use that may also contain other uses as permitted by the Scheme. 10 Clause 4.2 of CPS 5 provides that development of land is to conform with the Statement of Intent and the development requirements for each precinct, and that, when considering variations, affected parties are to be consulted and Council is to have regard to their views. 11 The Statement of Intent for Living Area Precinct L1 is as follows: Primarily residential but may include home occupations, corner shops, parks, religious, recreational and educational activities, provided they are designed in a residential style and are not developed to such an intensity that they disturb the Precinct. All non-residential uses shall be advertised in accordance with Clause 7.5 provided that home occupations shall be determined in accordance with Clause 5.6. 12 Clause 7.5 of CPS 5 states that development shall be in accordance with the Use Class Table to ensure compatibility with adjoining development and preservation of the amenity of the locality. 13 According to the Use Class Table, the proposed use, consulting room, is a 'S' use in Living Area Precinct L1, which is a use not permitted unless Council exercises discretion and grants approval after advertising, in accordance with cl 7.5(d) of CPS 5. 14 Clause 7.7 of CPS 5 provides for advisory committees to assist Council in determining applications for planning approval. The original proposal was referred to and recommended for approval by the respondent's Development Advisory Unit (DAU) on 28 August 2012. 15 Clause 7.8 of CPS 5 provides that, in determining a development application, Council shall have due regard to the following matters: (a) the objectives and provisions of this Scheme and any other relevant town planning scheme operating within the district, including the Metropolitan Region Scheme, and any relevant proposed scheme amendment or proposed revised scheme of the Council or proposed MRS amendment insofar as it may be regarded as a seriously entertained planning proposal; (b) the orderly and proper planning of land within the area; (c) the existing and likely future amenity of the area; (d) any approved Statement of Planning Policy prepared under the Town Planning and Development Act 1928 as amended; (Page 8)
(e) any planning policy adopted by the Government of the State of Western Australia; (f) any non-statutory guideline, planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme; (g) the need for additional infrastructure generated by the development; (h) the nature of the proposed development in relation to development either existing or proposed on adjoining land and the need to upgrade existing roads; (i) the size, shape and character of the lot upon which the development is to be carried out, and the influence which this may have on the siting and nature of any new building; (j) the design and external appearance, including the exterior cladding, of any new building and its effect upon the amenity of existing buildings and the area generally; (k) any relevant submissions received on the application; (l) the needs of cyclists and disabled persons including access, storage, toilets and showers; (m) the effect of the proposal on the objectives and specific strategies as outlined by the Community Concept Plan; and (n) any other planning considerations which the Council considers relevant.
16 Also relevant to this matter is the Western Australian Planning Commission's State Planning Policy 4.2 - Activity Centres for Perth and Peel (SPP 4.2), which identifies Murdoch as a Specialised Activity Centre within which health, education and research activities should be concentrated. 17 The respondent has the following relevant policies: (Page 9)
Respondent's decision 18 The proposed development was advertised in accordance with cl 7.5(d) of CPS 5, and the respondent received 33 submissions from individual property owners and a petition signed by 108 people, all of which opposed the proposed development. 19 Council officers prepared a report for Council consideration at its meeting on 16 October 2012 which recommended conditional approval of the proposal. 20 At its meeting on 16 October 2012 Council unanimously resolved to refuse the development application, and on 29 October 2012 the respondent issued a refusal of the proposed change of use and signage and additions on the subject site for the following reasons: 1. The development would, by virtue of the highly specialist medical nature of the practice, detract from the character of the existing residential area, and result in a loss of residential amenity to local residents, contrary to the amenity provisions of Clause 7.8 of the City of Melville Community Planning Scheme No. 5, namely: i. Part b, whereby it would not be consistent with the orderly and proper planning for the area, ii. Part c, whereby it would prejudice the existing and likely future amenity of the area, iii. Part e, whereby the use would be considered to be contrary to the provisions of adopted State Planning Policy, and iv. Part k, whereby approval would be inconsistent with relevant planning submissions received in respect of the proposed development. 21 The applicant lodged an application for review of this decision with the Tribunal. The Tribunal referred the matter to mediation, following which the respondent was invited to reconsider a modified proposal in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) at its meeting on 16 April 2013. 22 The modified proposal was advertised and the respondent received 29 submissions objecting to and two petitions, containing 121 signatures, supporting the proposal. The Council officer's report again recommended approval of the proposal. The respondent refused to approve the modified (Page 10)
proposal and on 22 April 2013 issued a refusal of the development application on the subject site for the following reason: Due to the highly specialised nature of the practice, the proposal does not satisfy Clause 7.8(c) of Community Planning Scheme No. 5 as it will detract from the character and amenity of the surrounding residential area. 23 The matter proceeded to a final hearing which included a view of the site in the company of the parties, their representatives, their respective planners and a number of interested neighbours on the morning of the hearing, 25 July 2013.
Proposed development 24 The original development application was for a change of use for the whole of the existing dwelling to be converted to two consulting rooms. The modified proposal, now the subject of this review, is for the change of use of part of the existing dwelling to a single consulting room and the retention of the remainder of the building as a dwelling. 25 The modified proposal provides a single consulting room plus entry, reception, waiting area, two toilets, kitchenette, administration area, laundry and store. The consulting room will have five parking bays located in the front setback area and will be accessed via a relocated crossover from Westminster Road. The remainder of the existing dwelling is to be renovated to provide a master bedroom with walk-in-robe and ensuite, a further bedroom, entry, kitchen, laundry, bathroom, formal dining room and lounge. Parking for two cars will be provided for in the existing double carport accessed via an existing crossover from Shea Grove. 26 The consulting room is to be used by Dr Arvind Vasudevan, a specialist urologist, with one administrative staff member, during the hours of 9 am to 5 pm from Monday to Friday. The consulting room is to be used for consultation purposes only and no medical procedures will be undertaken on site.
The issues 27 The respondent identified the following four issues for determination in this review: 1) Will the proposal detract from the existing or future amenity of the locality? (Page 11)
2) Is the proposal consistent with the Statement of Intent for Living Area Precinct L1? 3) Is the proposal consistent with Specific Policy 2.4.1(f) of CPS 5? 4) Is the proposal consistent with the orderly and proper planning of the area and, specifically, will the proposal lead to, or set a precedent for, the further creep of non-residential uses into the locality? 28 The applicant agreed that these were relevant considerations, with the exception of the part of issue 4 referring to 'further creep of non-residential uses into the locality'. 29 Mr Peter Webb, a town planner, represented the applicant throughout the proceedings and also appeared as an expert witness. Mr Webb also called Mr Gorki Bogdanich, the architect for the proposal, to give evidence. Mr Alan Stewart, a town planner, represented the respondent and called Mr Jeremy Hofland as an expert planning witness. The Tribunal had the benefit of a joint witness statement prepared by the planning witnesses which identified the two key issues as relating to the potential impact of the proposed use on the residential amenity, and the orderly and proper planning of the locality. 30 The Tribunal will address issues 1, 2 and 3 together as they are interrelated and can be summarised as whether the proposed non-residential use (consulting room) will have a detrimental impact on the residential character and amenity of the locality.
Whether the proposed consulting room will have a detrimental impact on the residential character and amenity of the locality 31 The proposed non-residential use of 'consulting room' for a specialist urologist is defined in Sch 1 of CPS 5 as: Any land or buildings other than a hospital used by not more than two (2) health consultants and one (1) staff member for the investigation or treatment of human injuries or ailments and for general patient care. 32 The proposal before the Tribunal involves alterations and additions to an existing single dwelling on the subject site in order to provide a consulting room with associated spaces for a single medical specialist plus an attached but independent two bedroom residential dwelling. (Page 12)
33 Mr Bogdanich gave evidence for the applicant regarding the proposed architectural improvements to the existing built form which include the following: • existing brick façades to be rendered and painted; • smaller residential dwelling fronting Shea Grove; • consulting room fronting Westminster Road to be residential in style; • new boundary walls and fences to comply with respondent's fence policy; and • existing unsightly gate to Westminster Road frontage to be removed. 34 Mr Webb contended that the proposed development will improve the character and amenity of the locality by improving the architectural appearance of the existing building, and that the smaller residential component will result in less traffic movements onto Shea Grove. 35 In regard to traffic movements from the consulting room onto Westminster Road, the planning experts agreed that Westminster Road, a local distributor road, is capable of accommodating any additional traffic movements resulting from the proposal. It was established during the hearing that most patients would drive or be driven to appointments, and the convenience of parking directly outside the consulting room was one reason for the choice of this particular site. There could be between 20 and 36 car movements per day depending on the number of patients to be seen by Dr Vasudevan. Mr Webb stated that Dr Vasudevan would generally be working from the consulting room 50% of the time, as he operated from different hospitals the remainder of the week. 36 Mr Webb was of the opinion that while there would be an increase in traffic movements related to the consulting room, this would be onto Westminster Road which, as a local distributor road, is capable of accommodating the increase and that the amenity of Westminster Road is already impacted by the operation of Leeming Primary School 100 metres to the east of the subject site. 37 Mr Stewart contended that there would be an increase in traffic movements onto Westminster Road and this would have a detrimental impact on the amenity of the locality. Mr Hofland stated that Leeming (Page 13)
Primary School has been developed in a way to minimise any amenity impacts on Westminster Road, with the main entrance and staff parking located on surrounding streets and the frontage to Westminster Road being mature vegetation and open playing areas. Mr Hofland said that the road is wide enough for parallel parking for parents dropping off and picking up students and that this occurs for a limited time period twice a day. Finally, he argued that the school site had been identified at the time the neighbourhood was developed, 'enabling prospective residents to be aware of the use prior to moving into the locality'. 38 The experts, Mr Webb and Mr Hofland, agreed that the respondent has the discretion to approve non-residential uses within Living Area Precinct L1, having regard to the Statement of Intent for the particular precinct. In this case, the respondent's Statement of Intent for Living Area Precinct L1 in CPS 5 states the following: Primarily residential but may include home occupations, corner shops, parks, religious, recreational and educational activities, provided they are designed in a residential style and are not developed to such an intensity that they disturb the Precinct[.] 39 Mr Webb was of the opinion that the proposed use as a consulting room is consistent with the Living Area Precinct L1 Statement of Intent, as it will be 'a significant improvement to the amenity of this area through the improvement of the appearance of the building' and the retention of the residential style of the consulting room component of the proposal. Mr Webb argued that the Statement of Intent for Living Area Precinct L1 does not refer to non-residential uses being specifically required to provide a service for the surrounding residents and, in any case, Dr Vasudevan's patients include elderly local residents. Mr Webb also argued that as Dr Vasudevan would be working away from the site 50% of the working week, 'the use will not be developed at an intensity which would in any way disturb the residential amenity of the Precinct'. 40 Mr Hofland was of the view that the consulting room is not consistent with the Statement of Intent for Living Area Precinct L1, as the proposed use will not result in any improvement to the amenity of the area and will adversely affect the character of the area through the introduction of a non-residential use which does not service the local community. It was his view that the type of non-residential land uses envisaged by the Statement of Intent would cater to the surrounding residential catchment, whereas the proposed use is to cater for patients from the Fiona Stanley and St John of God hospitals, and represents a highly specialised activity which would service a regional rather than a local catchment area. (Page 14)
Mr Hofland was of the view that the non-residential uses described in the statement 'would typically cater to the local community, particularly corner shops, parks, recreational and educational activities'. 41 It was Mr Webb's opinion that the car parking area associated with the consulting room will be an improvement in terms of streetscape, as the existing solid wall and gate will be replaced with a new fence and landscaped verge, and he noted that the car parking area will be used for a relatively short amount of time, mainly when other residents are not at home. 42 Mr Stewart expressed concern that by complying with the respondent's fence policy and providing brick piers with wrought iron infill panels and wrought iron gates, the front setback area of the consulting room which houses the required car parking bays will be highly visible, and that there will not be sufficient space for in-ground landscaping as required by CPS 5. 43 Both Mr Webb and Mr Bogdanich were of the view that the required car parking, including the disabled bay, could be provided on site, as well as sufficient in-ground landscaping. 44 The Tribunal finds that the proposal does not satisfy the Statement of Intent for Living Area Precinct L1 as, although the proposal has been designed in a residential style, the site is to be developed to such an intensity that it will disturb the precinct. The proposed development increases the intensity by locating both a consulting room and a dwelling on a single lot in an area dominated by single dwellings on single lots. 45 The Tribunal considers it unlikely that the smaller residential component of the development will result in fewer traffic movements, as the dwelling has sufficient accommodation for at least two to three adults and retains the existing double carport. 46 In regards to the impact of the consulting room, the Tribunal is satisfied that Westminster Road, as a local distributor road, has the capacity to accommodate the projected increase in traffic movements. However, the Tribunal agrees with Mr Stewart and Mr Hofland, and finds that the extra traffic movements will have a negative impact on the amenity of the immediate neighbours and the locality generally. 47 The Tribunal is not convinced that the location of the consulting room on this site and the convenience for any local patients outweighs the amenity impacts on the immediate neighbours from the increase in traffic (Page 15)
movements (including the noise of cars arriving and leaving the site throughout the day). 48 The Tribunal finds that the consulting room will detract from the residential character of the locality because, although the building is designed in a residential style, its non-residential nature is evident by the provision of a large hard paved area for the required car parking bays which will be clearly visible behind the new open aspect fence. Notwithstanding Mr Webb's argument that cars will be parked for limited time periods, the area will appear as an unusually large area of hard paving with limited opportunities for in-ground soft landscaping, particularly as the carport for the dwelling is located in close proximity. 49 Renovating the existing building on the site and providing an open aspect fence to Westminster Road are both improvements to the amenity of the locality, but the property could be renovated without providing the consulting room and, as stated above, the open aspect fence will provide a view to a large hard paved car parking area not normally associated with a residential property. 50 There was discussion by the parties about alternative locations for a consulting room. Mr Stewart discussed the proximity of the Farrington Frame Precinct (800 metres) and the Murdoch Activity Centre, both of which he considered to be more appropriate locations. Mr Webb stated that this site had the benefit of providing convenient car parking necessary for non-mobile patients and was located close to Leeming Retirement Village (2 kilometres). 51 As discussed in previous Tribunal decisions, it is necessary for the Tribunal to determine whether the proposed development, on this site, having regard to the relevant planning framework, should be allowed. Whether alternative sites are available or are more suitable is not determinative of the matter.
Whether the proposal is consistent with orderly and proper planning 52 Mr Stewart contended that the proposal was inconsistent with orderly and proper planning because the consulting room will be used by a specialist offering a service to patients from a wider district and regional area, and may result in 'the establishment of more non-local, non-residential activities in … a predominantly residential living precinct, resulting in the deterioration of the residential amenity and character of the locality'. (Page 16)
53 Mr Webb rejected this, and contended that the consulting room is for the benefit of many local patients and that non-residential uses such as this are able to be approved within this predominantly residential area. 54 The Tribunal has already found that the proposed development of a dwelling and consulting room with associated car parking on the subject site will have a detrimental impact on the residential character and amenity of the locality. 55 The Tribunal has not been provided with sufficient evidence regarding the necessity for the provision of this medical service in this location which would outweigh the adverse impacts on the immediate neighbours and the locality (whether or not some local residents are patients of Dr Vasudevan). 56 The Tribunal therefore finds that the proposal is not consistent with orderly and proper planning.
Conclusions 57 The Tribunal has determined that the proposed dwelling and consulting room on the residential zoned subject site will have a detrimental impact on the residential character and amenity of the locality.The application for review should therefore be dismissed and the respondent's decision to refuse the proposed development should be affirmed.
Orders (Page 17)
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