Synergy WA Pty Ltd and Anor and Town of Cambridge - [2007] WASAT 92

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SYNERGY WA PTY LTD & ANOR and TOWN OF CAMBRIDGE [2007] WASAT 92

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: 13 FEBRUARY 2007

DELIVERED : 23 APRIL 2007

FILE NO/S: DR 426 of 2006

BETWEEN: SYNERGY WA PTY LTD
TONIC HOLDINGS PTY LTD
Applicants
AND
TOWN OF CAMBRIDGE
Respondent

Catchwords:

Town planning - Approval to commence development - Child day care centre - Amenity of the locality - Orderly and proper planning - Nonresidential development - Building setback from primary street - Seriously-entertained planning proposal - Outdoor space per child - Door closing events

Legislation:

Community Services (Child Care) Regulations 1988 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), Table 1
Town of Cambridge Town Planning Scheme No 1, cl 11, cl 11(2), cl 19(3), cl 37(1), cl 38(4), cl 39, cl 39(3), cl 48

Result:

The application for review is dismissed

Category: B

Representation:

Counsel:

Applicants: Mr M Hardy
Respondent: Mr S Allerding (Acting as Agent)

Solicitors:

Applicants: Hardy Bowen
Respondent: Allerding & Associates (Town Planners)

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

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Lloyd Sales Pty Ltd v Subiaco City Council (Unreported, Appeal No 50 of 1981; 22 June 1982)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a decision of the Town of Cambridge to refuse a change of use from "residential" to "child day care centre" at No 63 Pearson Street, Floreat.
The Tribunal had regard to the arguments of both parties, together with the details of the proposed development, the relevant legislation and policy provisions, the results of community consultation, and matters of noise and traffic.
The Tribunal found that the proposed development was not in the interests of orderly and proper planning because of its corner location on a district distributor road, problems of safety and difficulties relating to proper traffic management. Also, that the proposal did not satisfactorily address the scale of the development and the deficiency of outdoor play area for 55 children, or the concessions sought with respect to the building setback from the primary street.
The application for review was dismissed.

Introduction

The application for review, dated 29 November 2006, was lodged by Hardy Bowen Lawyers on behalf of Synergy WA Pty Ltd and Tonic Holdings Pty Ltd (applicants) against a decision of the Town of Cambridge (respondent) on 21 November 2006 to refuse a proposal for a change of use from "residential" to "child day care centre" at No 63 Pearson Street, Floreat.
The application, which was made under s 252(1) of the Planning and Development Act 2005 (WA), was refused on the following grounds:
"(i) [Non]‑compliance with Policy 3.5 (v) Child Day Care Centres which limits the number of children to a maximum of 25;
(ii)[T]he subject property is surrounded by residentially zoned land and given the scale of the proposed development, it is considered that the activity generated will adversely affect the amenity of the area by way of noise and traffic generation;
(iii)[F]urther, it is considered that the proposed scale of the development will exacerbate existing traffic congestion/safety at the intersection of Pearson Street and Cromarty Road."

Subject land

The subject land can be described as Lot 1203 (No 36 or subject land) on Certificate of Title Volume 1162 Folio 286 and being on Diagram or Plan No 6286. It has an area of 1151 square metres and is located at the corner of Pearson Street and Cromarty Road, Floreat.
From photographic evidence (including aerial photographs) available to the Tribunal, it appears that the subject land is relatively flat, and there are a number of trees/bushes on the site to the front and rear of the existing single residence. The site adjoins three residential properties; one on each side (Lots 1202 and 1204) and one at the rear (Lot 1200).

Legislative framework

The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential R 12.5" in the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
There are a number of planning policies prepared under cl 48 of TPS 1 which are relevant to this matter. They include:
(a)Child Day Care Centres Policy (Policy 3.5);
(b)Non‑Residential Development in Residential Areas (Policy 3.8);
(c)Residential Design Guidelines (Guidelines)
(d)Transport, Access and Parking Policy (Policy 6); and
(e)Precinct Planning Policy P3 Floreat (Policy 7.3).
A Planning Bulletin No 72 (draft) produced by the Western Australian Planning Commission (WAPC) in June 2005 titled Child‑care Centres is also relevant, and is referred to as PB 72.

Respondent's position

The respondent's position is outlined in its Statement of Issues, Facts and Contentions dated 4 January 2007. The statement contends:
(a)TPS 1 and Council policies provide a proper measure of orderly and proper planning.
(b)The review site is inconsistent with Council's strategic intention for the location of child care centres.
(c)The proposed use is not permitted in a residential area unless Council exercises its discretion after consultation.
(d)On the basis of the Council's adopted planning framework, it is not considered that the proposal is consistent with orderly and proper planning.
(e)The proposed use will have a significant noise impact on adjoining properties and other residences due to the use of outdoor areas and staff/parent parking. This will have an adverse effect on the amenity of the area.
(f)The proposed use is likely to result in the use of local access roads via Cromarty Road which are only intended to accommodate traffic that utilise or reside in the street. Otherwise, patrons' vehicles may use driveways within Cromarty Road to return to Pearson Street travelling south. The use of local roads would exacerbate amenity impacts and is contrary to orderly and proper planning.
(g)The respondent is concerned that vehicles exiting the centre will attempt to cross two lanes of traffic along Pearson Street to undertake a u-turn manoeuvre in order to return south along Pearson Street. They may attempt to do this in the median break at the intersection of Pearson Street and Cromarty Road or use the local roads via Cromarty Road to return south.
(h)The submissions received highlight the incompatibility of a child care centre in a low density residential environment.
(i)The fit-out of other Jellybeans child care centres does not retain a domestic appearance; contrary to Council's policy measures.
(j)The requirements for front and side setback and fencing dispensations further exacerbate the fact that the building will be incompatible with the established streetscape and amenity of the area.

Applicants' position

The position of the applicants is outlined in their comprehensive Statement of Issues, Facts and Contentions dated 23 January 2007. The statement broadly argues:
(a)Policy 3.5 contemplates that the majority of proposals for child day care centres are likely to be in residential areas.
(b)Policy 3.5 permits variations to the location, site characteristics, amenity, operating times, scale and parking criteria subject to cl 39 of TPS 1.
(c)The Traffic Impact Statement commissioned by the applicants has determined that traffic-related issues should not be an impediment to an approval being granted.
(d)The respondent has approved a number of similar centres elsewhere.
(e)The proposed centre will not generate significant noise associated with the use of outdoor areas and parking areas. Therefore, amenity will not be adversely affected.
(f)The proposed building will be domestic in design and appearance.
(g)The respondent can, in accordance with the provisions of cl 2.1.3 P1 of its Guidelines, consider and approve variations to the requirements for fencing in street setback areas; subject to satisfying the relevant performance criteria.
(h)The respondent can, in accordance with the provisions of cl 2.1.1 P1 of its Guidelines, consider and approve variations to the street setback requirements; subject to satisfying the relevant performance criteria.
(i)The proposed development will not be incompatible with the established streetscape and amenity of the area.
(j)The petition of 116 signatures from residents within the immediate vicinity of the proposed centre, and the further two supporting letters, highlight the need and demand for the proposed facility. This is not outweighed by the perceived traffic and amenity issues raised by resident objectors.

Planning issues

The principal planning issues are:
(a)Does the proposal accord with orderly and proper planning; specifically with respect to the provisions of TPS 1 and relevant State and local policy?
(b)Would the proposed development be detrimental to the amenity of the immediate locality in terms of traffic and noise, and its impact on the streetscape?

Assessment of proposal

Background and proposed development

On 10 August 2006, the applicants lodged a development application for the construction of a purpose-built child care centre on the subject site at an estimated cost of $420 000.
The proposed development consists of an office, staff area, three activity rooms, kitchen, laundry and toilets together with two rooms set aside for sleeping. A specific "play area" for each of the three age groups is contemplated outside the building, along with the provision of 12 car parking spaces.
The proposal involves a total of 55 children comprised of infants (babies - 0 to 2 years), toddlers (2 to 3 years) and those of kindergarten age (3 to 6 years).
In the witness statement dated 30 January 2007 of Ms Anna Le Grove, General Manager of the Jellybeans child care centres, she advised:
(a)Indoor activity times are generally in one hour blocks between 10 am to 11 am and 2 pm to 3 pm.
(b)Outdoor activity times are generally from 9 am to 10 am and 3 pm to 5 pm, weather permitting.
(c)The drop-off of children is staggered, with the majority arriving between 7.30 am to 9.30 am. Parents arrive, park, turn off their vehicles and bring their child (or children) into the centre and then depart. Drop-offs occur quickly.
(d)The majority of children are collected between 3 pm and 5.30 pm, with the centres closing at 6 pm.
(e)Staff members arrive no earlier than 7 am and arrive and depart in staggered intervals during the day according to the number of children at the centre in peak times. The centres are usually fully staffed between 9.30 am and 3.30 pm, with the remaining staff departing at the 6 pm closing time.
(f)Staff are entitled to park their cars on the site.
In answer to various questions put to her from Mr Allerding for the respondent, Ms Le Grove advised:
(a)There are four existing Jellybean child care centres.
(b)All of the applications for child care places to attend the proposed centre are from the Floreat area.
(c)The centre would operate from 7.15 am rather than from 7 am.
(d)There would be up to 20 special activity days in a year, including a "pyjama day", "face painting day", "mother's day" and "father's day".

Legislative and policy provisions

Under cl 11 of TPS 1, the associated zoning table shows a "child day care centre" with an "SA" symbol. This is defined under cl 11(2) as:
"'SA' means that the use is not permitted unless the Council has granted planning approval."
Clause 37(1) advises with respect to the advertisement of applications for planning approval:
"Where an application … involves an 'SA' use, the Council shall not grant approval of that application unless notice of the application is first given in accordance with the provisions of subclause (5) of this clause."
Under cl 38(4), it advises with respect to the determination of applications:
"Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to:
(a)the provisions of this Scheme and any other written law applying within the Scheme Area including the Metropolitan Region Scheme;
(b)any relevant Planning Policy;
(c)any Statement of Planning Policy of the Western Australian Planning Commission;
(d)any planning study approved by the Council;
(e)any submission accompanying or related to the application;
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenities of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Under cl 39(3) in relation to the determination of non-complying applications for planning approval, it states:
"(3)The Council cannot grant planning approval for a noncomplying application unless it is satisfied by an absolute majority that:-
(a)if approval were to be granted, the development would be consistent with:-
(i)the orderly and proper planning of the locality;
(ii)the conservation of the amenities of the locality;
(iii)the statement of intent set out in the relevant Precinct Planning Policy; and
(b)the non-compliance would not have any undue adverse effect on:-
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality."
It is clear to the Tribunal that TPS 1 puts a strong emphasis on "amenity" and "orderly and proper planning" when the respondent is considering development applications, and for the respondent to have regard to relevant State and local policy; also, that any non-compliance should not have any undue adverse effect.
The latter point was raised by Mr Hardy in his closing statement for the applicants when he argued that the respondent had not shown "any undue adverse effect". He explained:
" … we need we say to be shown something more, and we have not been shown it here."
Under Policy 7.3 for the Floreat Precinct, it explains under a Statement of Intent:
"The Floreat Precinct will be maintained as a residential garden suburb with high quality housing in a parkland setting. Low density residential development will continue as the predominant land use with the Precinct. The existing shopping centres and community facilities will be maintained and enhanced as important community focal points although their expansion into adjoining residential areas will not be permitted."
The Policy explains under "Residential":
"A limited number of non-residential uses such as local shops, child care facilities, recreation areas and primary schools are also appropriate where they serve the immediate day to day needs of local residents and are an integral part of the residential environment."
The interpretation that the Tribunal places on these clauses is that the expansion of non-residential uses into residential areas will be resisted, but that certain specified non-residential uses will be allowed where they serve a local need, and are an integral part of the residential environment.
The Tribunal would certainly accept that a child care centre is an integral part of the residential environment and, according to the evidence of Ms Le Grove in [19(b)] above, all of the applications for a place in the proposed centre are from the local area of Floreat.
Under Policy 3.8, it aims:
"To ensure that non-residential development in or adjacent to residential areas is compatible with adjoining residences, and does not detract from the amenity [of] adjacent residential areas."
The policy provisions include:
"1.Non-residential development on sites which abut land, zoned or used for residential purposes, may only be permitted where the nature of the non-residential use will not cause undue conflict through the generation of traffic, demand for parking or the emission of noise or any other form of pollution which may be undesirable or incompatible with residential uses.
2.Non-residential development in residential areas is required to comply with the setback and plot ratio development standards for grouped dwellings of the relevant density code under the Scheme …
3.A minimum of 25 per cent of the site area, including front setback which are not required for car parking and access, shall be landscaped to the satisfaction of Council. Such landscaping shall include a minimum 2 metre wide strip between any on-site car parking areas and the street alignment.
4.Where car parking or vehicular accessways are provided in the vicinity of adjacent residential properties, suitable barriers shall be provided to protect boundary fencing, which may be required to be upgraded to protect the amenity and/or privacy of such properties.
5.In its determination … the Council may impose conditions designed to minimise the impact in residential amenities, including limiting the scale of the development and restricting the times during which the non-residential activity may be undertaken."
It is clear to the Tribunal that Policy 3.8 places a strong emphasis on the need to protect the overall residential amenity, and that the various policy provisions attempt to put that aim into effect.
Under the policy provisions of Policy 3.5, it broadly states:
"(a)Centres are encouraged to locate near commercial, community or recreational areas and near Distributor Roads which have the capacity to accommodate any additional traffic.
(b)The site is to have a minimum lot area of 1000 [square metres] and a minimum frontage of 20 metres.
(c)The building is to be domestic in design and appearance with a maximum 50 per cent site coverage if located in a residential area.
(d)Days and times of operation are to be restricted to 7.00 am to 6.00 pm Monday to Friday and 7.30 am to 12.30 pm Saturday.
(e)The maximum number of children is to be limited to 25 persons, but may be increased to 40 persons where the site abuts non-residential land uses and the size and shape of the lot, and the nature of existing vegetation, ensure minimum impact (from play areas) on the amenity of surrounding properties.
(f)On-site parking is to accord with the provisions of Policy 6.
(g)Variations to the Policy require Council to have regard to cl 39 of TPS 1; particularly in regard to set down/pick up arrangements, likely generation of traffic in residential areas, traffic safety and neighbourhood acceptance of the proposal."
It is clear to the Tribunal that the subject land meets the lot area requirements and that the proposed development is domestic in design and appearance and meets the 50% site coverage. Also, the restrictions on days and times of operation would be met.
What is not so clear are matters relating to the adequacy of on-site car parking, traffic safety and neighbourhood acceptance of the proposal. These matters are addressed below.
Under Policy 6, which deals with transport, access and parking, there is a requirement for one car bay for every adult staff member and one car bay for every 10 children, with a minimum of three car bays other than for staff parking.
In the "Joint Expert Report of Alan Alexander Stewart and Amanda Jane Butterworth" (Planners' Report) dated 8 February 2007, they advise:
"3.The experts agree that the development meets the Council's requirements in regard to car parking and that the required number of parking bays are [sic] provided on site."

However, in her evidence before the Tribunal, Ms Butterworth, a qualified planner acting as an agent for the respondent, modified her position on the following basis:
(a)At some stage during the day, each of the three "activity rooms" would have three staff members, amounting to nine staff.
(b)These numbers would be increased to 10 staff if there was a Director of the Centre employed.
(c)With five other car bays required (one car bay for every 10 children), there would be a need for 14 or 15 car parking bays.
(d)The provision of 12 car parking bays is deficient.
A report to Council on 23 November 2004 addressed the matter of a review of Policy 3.5 and, following an assessment of 13 other metropolitan local authorities, concluded that:
(a)the respondent's car bay requirements in comparison to nine of the 13 other local authorities was generous, as they required a greater number of car bays versus the number of children in attendance;
(b)most of the vehicles parked on-site during the day would comprise staff car parking;
(c)a greater number of car bays would represent wasted space during the day.
In the view of the Tribunal, the observations by Ms Butterworth in [38] above are correct if all staff members are adults, but this may not be so if some staff are younger than eighteen years of age.
However, the proposal for 12 car parking bays could be very tight in peak periods, and the situation would need to be carefully managed and monitored if the proposal was to proceed (perhaps by way of adjusting staff arrival times before and after the peak periods).
The Residential Design Codes of Western Australia (2002) (Codes) are relevant to this matter in the sense that they have been adopted as part of TPS 1 under cl 19(3), and the link is made via Policy 3.8, whereby nonresidential development is required to comply with the setback and plot ratio standards for grouped dwellings under the relevant density code under the Scheme.
Under Table 1 (General Site Requirements) of the Codes, the minimum setback from the primary street for a grouped dwelling under an R12.5 coding is 7.5 metres, and 2.0 metres from a secondary street.
The Planners' Report deals with the matter in this way:
"10.The experts agree that the building does not comply with the Council's requirements in regard to the primary street and secondary street setbacks.
11.The experts agree that the secondary street setback to the building is a minor variation that relates only to a small corner of the building.
12.In regard to the primary street setback, given the corner location of the site and the setback variation relates to approximately 11m of building, the setback variation may be considered acceptable under the performance criteria, given the position and shape of the lot."
In the applicants' Statement of Issues, Facts and Contentions, the matter of variations to street setback is argued as appropriate on the basis of the expansive frontage of the lot, its irregular wedge shape, corner location and relatively small "footprint".
The applicants' argument is summarised:
"10.1.17Requiring full compliance with the street set back [sic] requirements will in itself adversely impact the owners of the adjoining residential properties as it would result in the proposed building being closer to their private indoor and outdoor living areas."
The Guidelines are also relevant; particularly in the context of building setbacks and fencing. According to the officer's report to Council on 21 November 2006, the Acceptable Development Criteria require a minimum setback to the proposed portico of 7.0 metres and 9.0 metres to the building from the primary street (Pearson Street), and a minimum setback from the secondary street (Cromarty Street) of 4.5 metres.
As the proposed development measures 4.9 metres to the portico and 6.3 metres to the building from the primary street, and 3.0 metres from the secondary street, it is clear that the Acceptable Development Criteria are not met.
In the view of the Tribunal the proposed development can only be assessed on the basis of "merit", as the proposed building setback from the primary street in particular does not meet the Acceptable Development Criteria of either the Codes or the Guidelines.
Although PB 72 is a WAPC "draft" policy, it can be considered a "seriously-entertained planning proposal" due to its intended purpose in providing guidance to planning authorities, since June 2005, in relation to the location and development of child care centres.
The objectives of the draft policy seek to locate centres appropriately and minimise their impact on the surrounds; particularly with respect to the amenity of residential areas. It also seeks to minimise the impact the surrounds may have on the centre.
The matter of where centres generally would not be suitable is addressed in cl 3.3. It includes where:
"g)access is from a major road or in close proximity to a major intersection where there may be safety concerns; … "
The desirable site characteristics are addressed in cl 3.4:
"Sites selected for child-care centres should be of a sufficient size to accommodate the development, including all buildings and structures, parking for staff and parents, pick-up and dropoff areas, outdoor play areas and landscaping, as determined by the local town planning scheme or relevant local policy and the regulations. As a general rule sites in a residential area should be of regular shape and greater than 1000 [square metres]."

Community consultation

The proposal was advertised for 21 days, with letters sent to owners of abutting sites within 50 metres of the subject site and a notice placed on-site. Of the nine letters sent, Council received two letters of support and seven objections.
The letters of support were from the Edith Cowan Childcare Centre (Churchlands Campus) whose lease expires on 31 December 2007 and which caters for 59 children per day between 0 to 6 years, and from the parents of one of the children. These letters of support were supplemented by a petition of 116 persons living within a 1.0 kilometre radius of the subject land.
The objections to the proposal related to increased traffic movement, road safety at the intersection of Cromarty Road and Pearson Street, the precedent of establishing a "commercial" use, noise emanating from the centre, and a decrease in property values. The objections were from nearby residents.
In the view of the Tribunal, the question of "need" is not an issue, because the Edith Cowan Centre had more than 100 families on its waiting list for 2007. However, the greatest weight must be given to the concerns of the nearby residents (providing they are valid concerns) who are the most affected by the proposal in terms of noise and traffic impact in particular.

The adequacy of the outdoor play area (outdoor space)

Based on the standards outlined in the Community Services (Child Care) Regulations 1988 (WA) of 9.3 square metres of outdoor space per child, a centre of 55 children would require 511.5 square metres.
Although the total amount of actual outdoor space shown in the proposal was disputed between the parties at the hearing, the Tribunal prefers the calculation of 451 square metres calculated by Mr F Macri, a qualified design consultant for the applicants.
Based on a total figure of 451 square metres of outdoor space, this would equate, at 9.3 square metres per child, to an outdoor space provision for 48 children only (not 55 children).
However, in answer to a question from Mr Allerding on how the outdoor space could be increased to accommodate 55 children, Mr Macri responded:
"You modify the building, make the kitchen area smaller, staff toilets and all that to a minimum, laundries to a minimum size, until you pick up the square metres for the external."
Just how far internal modifications could be made without compromising the integrity of the building to properly function as intended, and just why this exercise was not done beforehand when the application was lodged, is not at all clear to the Tribunal.
However, what is clear is that, based on a standard of 9.3 square metres of outdoor space per child, there is insufficient outdoor space for 55 children as currently contemplated in the proposed development. A figure of 48 children is more realistic when based on the current building design and available outdoor space.

The matter of noise

A joint witness statement, dated 6 February 2007, was prepared by Mr Terry George for the respondent and Mr Nick Della Gatta for the applicants. Mr George is the Senior Acoustical Engineer with Lloyd Acoustics and Mr Della Gatta is a Director of ND Engineering.
In the joint witness statement, the areas of understanding were generally:
(a)The perimeter walls between the car park and child play areas and Lots 1200, 1202 and 1204 to be 1.8 metres high and of solid brick construction with no gaps.
(b)Play areas to be restricted in size and as shown in Annexure TG and ND 1.
(c)Babies (0 to 2 years) to be relocated to Activity Room 2 and Toddlers (2 to 3 years) to be relocated to Activity Room 3.
(d)Staff parking to be in car bays 7 to 12 (those furthest from Pearson Street).
(e)No evaporative air-conditioning units to be installed, with all other mechanical services to be as described in the ND Engineering report.
(f)Prior to occupation, a noise compliance report to be submitted to the Town demonstrating that all mechanical services plant complies with the Environmental Protection (Noise) Regulations 1997 (WA) (Regulations).
On the question of the relationship of indoor activity rooms to outdoor play areas, it would mean that the noisiest children (kindergarten 3 to 6 years) would be in Activity Room 1 and would play immediately outside in the play area closest to Pearson Street-Cromarty Road. The toddlers would be in Activity Room 3 and would play immediately outside and closest to the car park, whilst the babies would be in Activity Room 2 and would play immediately outside and adjacent to Lot 1204.
The joint view of the noise experts was that, providing the measures outlined in [65] were implemented, noise levels would comply with the Regulations between the operating hours of Monday to Friday (7 am to 6 pm) and Saturdays (7.30 am to 12.30 pm) excluding public holidays.
An area of disagreement was in relation to "door closing events" prior to 7 am, where noise levels are calculated to exceed the Regulations because the assigned level reduces by 10 dB. The area of disagreement was how this would be managed, but was resolved at the hearing with the applicants agreeing to a 7.15 am start time.
A matter of interest to the Tribunal was that with an estimated 192 vehicle trips per day, the number of "door closing events" would increase from 30 for a single residence to around 500 for the proposed development and there would be consequential repetitive noise.
However, on the question of the effect of the proposed fence on noise levels, Mr Della Gatta advised at the hearing that, with or without the fence, the noise levels would comply with the Regulations.
Mr George took the view that noise levels without the fence would probably exceed the Regulations, but would comply with the fence in place.
On a specific question from Mr Allerding to Mr Della Gatta on whether noise would be heard from the closing of car doors with or without a fence, Mr Della Gatta advised:
"In either case, yes, they would be audible."
In the view of the Tribunal, it is not just the noise emanating from "door closing events" that is a source of annoyance to a neighbour, but their repetitive nature; particularly during the peak arrival and departure periods in the morning and afternoon.
However, the Tribunal would acknowledge that based on the views of the noise experts, and with appropriate measures put in place to effect noise minimisation, the proposal cannot be refused on the basis of noise alone.

Traffic, traffic impact and management

In the "Traffic Impact Statement" (TIS) prepared by Transcore Pty Ltd for the applicants in August 2006, the existing situation was broadly described:
(a)Pearson Street is a dual divided carriageway with a 2.0 metre centre median at its intersection with Cromarty Road and a signposted speed limit of 70 kilometres per hour (kph) in the vicinity of the subject land. Pearson Street operates as a school zone with a signposted speed limit of 40 kph between 7.30 am and 9.30 am and between 2.30 pm and 4 pm.
(b)Pearson Street carries approximately 21 000 vehicles per day (VPD) in the vicinity of the subject land, according to Main Roads WA September 2005 figures.
(c)Cromarty Road has a 10 metre wide pavement and carries approximately 4000 VPD (May 1998, Town of Cambridge) and operates under an unposted 50 kph speed limit which reduces to 40 kph during school peak hours.
(d)The Churchlands Primary School is located in Cromarty Road directly opposite the subject land and has an onstreet indented area for pick-up/drop-off of students.
(e)The Pearson Street/Cromarty Road T-intersection is unsignalised but allows a southbound right turn pocket on Pearson Street. The Cromarty Road approach to the intersection is sufficiently wide to accommodate outbound right and left turning movements.
The TIS contains a great deal of information and traffic data, and the conclusions include:
(a)Based on the projected number of trips estimated for the subject site and its distribution, the impact on Pearson Street will be negligible (less than 1%).
(b)The site-generated traffic increase on Cromarty Road will be in the order of 2% per day. This increase can be easily accommodated.
(c)The traffic generated by the proposed centre will have no real impact on the Pearson Street/Cromarty Road intersection.
(d)The closure of the existing Edith Cowan child care facility at the end of 2007, and the closure of the campus itself, will likely result in the reduction in traffic on the road system.
(e)The proposed crossover on the subject land will consist of two 3.0 metre lanes to accommodate inbound and outbound movements which will be restricted to leftin/leftout movements only.
(f)No internal congestion in the car park is anticipated; particularly as the parking supply satisfies the Town's requirements.
(g)Based on surveys at other centres the average drop-off time during the morning was 8.5 minutes and average pick-up time in the afternoon was 6 minutes. With six parking bays, the capacity for drop-offs equates to 43 children per hour, and for pick-ups equates to 55 children per hour.
(h)The centre could easily cater for the drop-off and pick-up capacity for a maximum of 55 children; particularly as surveys indicate that 82% of children are dropped off during the three hour morning period and 47% during the morning peak hour. Similarly, 79% of the children are picked up during the three hour afternoon period and only 36% and 29% during the school pm and roadway pm peak hours.
In his witness statement, dated 25 January 2007, Mr Behnam Bordbar, a qualified traffic engineer and Managing Director of Transcore Pty Ltd, advised:
"(a)During the morning and evening road network peak hour, the proposed centre would generate approximately 41 trips (21 inbound/20 outbound) and 27 trips (12 inbound/15 outbound) respectively.
(b)In terms of average rates, this infers arrival and departure rates of approximately one car per 3 minutes during the peak morning road network period. For the evening road network period, the rates are lower, with one car arriving per 5 minutes and one car departing per 4 minutes.
(c)For parents dropping off their children in the morning before heading to their work destinations to the north, or picking up the children before heading north to their home, they would leave from the proposed crossover on Pearson Street and head north along Pearson Street.
(d)For parents wanting to head south to work or home, they would be able to u-turn further north along Pearson Street with its intersection with Dolomite Court, or turn left into Cromarty Road and use the roundabout at Crieff Street/Cromarty Road to head back to Pearson Street. Alternatively, they would use Empire Avenue and The Boulevard to head south or towards the Mitchell Freeway.
(e)For parents heading back to the local residential area south of Cromarty Road and north of Grantham Street, they would use one of the local access roads.
(f)According to the crash records from Main Roads WA, there were only six crashes over the five year period between 2001-2005 at the Pearson Street/Cromarty Road intersection. This ranks No 2541 in the State and there are no safety concerns at the intersection.
(g)As stated in the Council Minutes of 21 November 2006:
'The Town's Technical Services has not raised any significant concerns with the proposed development and its location … '."
Of interest to the Tribunal are some apparent differences in figures between the TIS and the witness statement of Mr Bordbar. For instance, in the TIS, it is assumed that 47% of 55 children would arrive during the peak morning hour. This would mean the arrival of 26 children in that hour.
However, in Mr Bordbar's witness statement, he uses a figure of 21 inbound journeys only in the morning peak hour.
Of additional relevance is the estimated average drop-off time of 8.5 minutes which was confirmed by Ms Le Grove at the hearing as a reasonable estimate. If that is the case, then each of the six available car bays could accommodate seven arrivals and departures per hour, giving a total capacity of 42 arrivals and departures.
Based on these figures, it would appear that the six available car bays could accommodate the parking demand in either the TIS scenario or that advanced by Mr Bordbar in his witness statement.
It is clear to the Tribunal that there are specific circumstances where access to the proposed centre would be inconvenient and far from ideal.

Conclusions

The application for review was lodged against a decision of the Town of Cambridge to refuse a proposal for a change of use from "residential" to "child day care centre" at No 63 Pearson Street, Floreat.
In examining the matter, the Tribunal had regard to the relative arguments of the parties together with the background to the proposed development, the legislative and policy provisions, the results of community consultation and matters of noise and traffic.
The position of the respondent is largely based on the argument that the proposed development does not accord with Council's adopted planning framework, and therefore is not consistent with orderly and proper planning. It is also argued that because of both noise and traffic impacts, the centre would be detrimental to the amenity of adjoining residents and the immediate locality, and incompatible with the established streetscape.
The position of the applicants is that as both noise and traffic impacts have been satisfactorily addressed, and that there is sufficient flexibility in the planning framework, the proposal is in accord with orderly and proper planning. They argue that the proposed development will not be incompatible with the established streetscape or the amenity of the area.
One matter than can readily be put to one side is that of "need". The Tribunal is satisfied that a petition of 116 signatures supporting the proposed centre, together with the planned closure of the 59 place centre on the nearby Edith Cowan University campus in late 2007, overcomes any doubts in this regard. A new centre in the locality is clearly justified.
The Tribunal also accepts that although a "Child Care Centre" is a "nonresidential" use, such centres are an integral and increasingly relevant part of urban life in modern Australia, and can be accommodated within the residential framework. However, matters of scale, times of operation, design, setbacks, noise and traffic all need to be addressed.

In submissions put by Mr Hardy to the Tribunal, he argued that if matters of noise and traffic are satisfactorily addressed, that scale is " … simply an arbitrary limit decided for the purposes of sorting out applications".
The proposition being put was that the applicants' position is an essentially "merits" based argument, rather than one which relies on strict adherence to specified standards and policy provisions.
This is not an argument with which the Tribunal would necessarily disagree, and was put into context in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 when Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply, or not to apply, policy. He noted, however, that departures from government policy should be "cautious and sparing", and only occur where there were "cogent reasons".
This matter is very much at the heart of the issue in this case because although matters of lot size, site coverage, building design and appearance and days and times of operation can be satisfactorily addressed in terms of policy and planning conditions, the 55 child care places being sought is well above the maximum 25 places outlined in Policy 3.5.
Also, the subject land does not qualify for an increase to 40 places because it does not abut non-residential land and, although Mr Hardy challenged the logic and source of these figures (25 places and 40 places), they have still been built into Policy 3.5 by Council.
On other matters, it is also the case that the proposal has not received support in the submissions lodged by nearby residents, does not provide sufficient outdoor play area for 55 children, and there are question marks over both the adequacy of car parking bay numbers when a full complement of staff are present, and building setbacks.
On the matter of "outdoor play area" it is clear that, based on a figure of 9.3 square metres of space for each child, there is insufficient outdoor space for 55 children and, even if modifications were made to the building size and its internal design, the indoor space requirements of the Regulations would still need to be met. Alternatively, the number of child care places would need to be reduced to an estimated 48 places.
As explained in [49] above, the proposed building setback, from the primary street in particular, does not meet the criteria in either the Codes or the Guidelines and, as explained below, there are safety implications in positioning the kindergarten children in the front setback area adjacent to Pearson Street.
On the matter of noise, the Tribunal accepts that, putting the repetitive sound of an estimated 500 door closing events to one side, the views of Messrs George and Della Gatta were that, subject to certain noise minimisation measures being implemented, overall noise levels will comply with the Regulations. Accordingly, the Tribunal accepts that the proposal cannot be refused on the basis of noise alone.
But it is the location of the subject site, and traffic and safety considerations that are of most concern to the Tribunal.
On the matter of "location", the subject is addressed in PB 72, which can be regarded as a "seriously-entertained planning proposal". In Lloyd Sales Pty Ltd v Subiaco City Council (Unreported, Appeal No 50 of 1981; 22 June 1982), it argues that the weight to be given to a planning proposal will, in each case, depend on the degree of likelihood of the seriously-entertained document being finally adopted.
In this particular case, PB 72 has been in the public arena for almost two years, and the probability of it being finally adopted is high. The Tribunal is therefore prepared to accept the statement under 3.3 that:
"Child-care centres generally would not be suitable where:
(g)access is from a major road or in close proximity to a major intersection where there may be safety concerns;
… unless the applicant can demonstrate satisfactorily that the matters listed will not have a detrimental impact on the childcare centre."
Even if PB 72 did not proceed to finality, the fact that the subject land is located on a district distributor road that carries an estimated 21 000 VPD in a 70 kph zone (except between 7.30 am to 9.30 am and 2.30 pm to 4 pm), and is located on a corner, would be cause for concern in any planning assessment.
Again, the radius of the curve for traffic turning left from Pearson Street into Cromarty Road is such as to invite above-average speed when negotiating the corner, and although the TIS suggests modifications to the design to minimise traffic speed when turning left, that is not the situation existing today.
It would only take one errant left hand turning truck or passenger vehicle travelling at speed to hit the outside perimeter wall with children (3 to 6 years) behind it for an accident to occur.
A further point relates to the six car bays set aside for drop-off and pickup of children and the conclusion in [81] above where it does appear that the car bays could accommodate parking demand. However, the statistical data cannot take into account a situation where two or three vehicles arrive in tandem in peak hour to turn left into the centre and are confronted with a vehicle reversing out from the first or second car parking bay closest to Pearson Street, and the two or three vehicles are forced to stop. This could leave a vehicle(s) standing in Pearson Street in the path of oncoming traffic.
This scenario could also give rise to a rear end collision, and although crash statistics are not high at the Pearson Street/Cromarty Road intersection as advanced by Mr Bordbar, they were not taken in a situation with a child care centre on the subject land and with an estimated 192 vehicle movements per day.
On this point, if the centre was located in a small commercial centre where parking was shared with shoppers, or if it was positioned within a residential area adjacent to a non-residential use such as a park, then parents who find the on-site parking spaces full could simply park elsewhere in the street and in safety. That circumstance of being able to walk with a child, or carry an infant to the centre, is not readily available in this case.
In summary, the proposed location of the centre is far from ideal in planning terms; particularly from the perspective of being located on a district distributor road, problems of safety, and the difficulties of access to the centre from the north and also when parents wish to return to the south.
These reasons, when coupled with the fact that the proposal before the Tribunal has not fully addressed the matters of the inadequacy of outdoor play area for 55 children and building setback from the primary street (Pearson Street), lead to the conclusion that the proposal does not adequately accord with orderly and proper planning.
On the other hand, the Tribunal does acknowledge that there is a need for a child care facility in the immediate locality and that the proposal does meet certain criteria such as site area and site coverage, and that noise, of itself, would not be a sufficient reason to refuse the proposal.
However, on balance, the Tribunal is unable to support the proposal and the application for review is dismissed.

Orders

For the foregoing reasons, the orders of the Tribunal are:
1.The application for review is dismissed.

I certify that this and the preceding [111] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER