TEH and CITY OF FREMANTLE
[2005] WASAT 123
•3 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING & DEVELOPMENT ACT 1928
CITATION: TEH and CITY OF FREMANTLE [2005] WASAT 123
MEMBER: MS M CONNOR (MEMBER)
HEARD: 15 APRIL 2005
DELIVERED : 3 JUNE 2005
FILE NO/S: RD 358 of 2005
BETWEEN: ADELINE TEH
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town Planning - Development - Change of use - Orderly and proper planning -Preservation of amenity
Legislation:
Nil
Result:
Application for review is allowed.
Planning approval granted subject to conditions.
Category: B
Representation:
Counsel:
Applicant: Mr P Webb (Agent)
Respondent: Mr A Gray (Agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS M CONNOR (MEMBER):
REASONS FOR DECISION
Introduction
This is an application by Adeline Teh (the ''applicant") for review of a decision of the City of Fremantle (the "respondent") to refuse planning approval for a change of use from "Residential" to "Service Professional Dental Clinic" on Lot 1 (No 261) South Street, Beaconsfield ("subject land").
The development application was refused by the Development Assessment Committee of the respondent at its meeting held on 11 October 2004. The Committee determined that it ''was not prepared to exercise its discretion to support the change of land use", but did not give any reasons for the refusal of the application.
The applicant elected to request the respondent to reconsider its decision in accordance with cl 88 of the City of Fremantle Town Planning Scheme No 3 (''TPS 3"). The respondent at its Ordinary Meeting of 7 February 2005 reconsidered the matter and resolved to reiterate its earlier decision to refuse the application, stating the following three reasons for refusal:
"1.It is considered that the proposal would prejudice the orderly and proper planning of the area and the preservation of the amenity of the locality.
2.The preferred land use strategy for the subject property and area is to encourage residential land use, to remove non-conforming uses, to direct non-residential uses to planned Local Centres, and to minimise potential traffic and amenity impacts.
3.The proposal is not an as-of-right use, but is one requiring the Council to exercise discretion to approve it, which in this case all things considered the Council is not prepared to do."
The subject land
The subject land is described by the respondent as Lot 1, being the whole of the land comprised in Certificate of Title Vol 2565 Folio 377. The applicant is the registered proprietor of Lot 1.
Lot 1 forms part of a four-lot strata plan and has a total area of 471 square metres. It fronts onto South Street, which is a ''Primary Regional Road", carrying, on the respondent evidence, approximately 25 000 vehicle trips per day.
The adjacent lots, being No 259 South Street and No 1B Cadd Street, are currently vacant.
The proposal
The application before the Tribunal involves a change of use from residence to dental clinic. The applicant intends to relocate her existing dental practice from No 213 South Street, Beaconsfield to the subject land.
The dental clinic will operate with one practitioner (the applicant) and one nurse/receptionist. The hours of operation are proposed to be 9.00 am‑6.00 pm Monday to Friday and 9.00 am‑12.00 pm Saturday. Ms Teh explained that appointments would be booked at intervals of 30 minutes to an hour per patient and that patients would not arrive at the same time given that she was the only practitioner.
There are no structural changes proposed other than the construction of extra parking bays and disabled access for wheelchair accessibility. The site plan shows the provision of five car parking spaces at the rear of the site in a tandem arrangement accessed off Cadd Street. The facade of the dwelling and the existing front garden are to be maintained to preserve the residential appearance of the property.
Planning framework
The subject land is zoned ''Urban" in the Metropolitan Region Scheme ("MRS") and "Residence" with a permitted site density of "R20" under TPS 3. South Street, which abuts the subject land, is classified as a 'Primary Regional Road' in the MRS and is a category 3 road under the responsibility of the Western Australia Planning Commission ("WAPC").
The use class ''Service – professional" is classified in "Table 1 – Land Use" as an "AA" use in the "Residence" zone, that is a use that is not permitted unless consent is granted by the Council.
Clause 12 and cl 14 of the Scheme establish the need for planning approval.
Clause 16 requires that in determining any application regard is to be given to the purpose for which the land is zoned, the orderly and proper planning of the locality, the preservation of the amenities of the locality and the matters listed in cl 77. Regard is also to be given to any planning policy statement adopted by the Council relating to specific areas, use classes or building types. The pertinent specific matters listed in cl 77 relating to this application are as follows:
"(a)the intensity and nature of the proposed use, including its environmental impact by way of emissions, illumination and hours of operation;
(b)in the case of non-residential development, the number of employees likely to be accommodated;
(c)vehicular and pedestrian access and circulation, and the provision for deliveries and the like;
(d)whether parking for vehicles is adequate, convenient, safe, unobtrusive, landscaped and adequately surfaced and marked, and in any particular case whether parking should be provided elsewhere, in which case the Council may require a contribution to a Trust Fund of the Council for the provision of public parking in the vicinity where the need for such parking is generated by the development or for provision of transport infrastructure in accordance with cl 52(g);
(e)whether adequate provision has been made for cyclists and disabled persons, including access, storage, toilets and showers;
(f)the position of signs; and
(g)any other matters."
Clause 50, by reference to table three – "Parking Requirement", indicates the minimum number of car parking spaces required to be provided for the use classes listed. In this particular case, a total of three bays are required to be provided.
Clause 83 of the Scheme provides the ability to seek public comment on an application prior to its determination.
Reference was made during the hearing to the draft town planning scheme, referred to as City Planning Scheme No 4 (''CPS 4"). Mr Gray, who is a senior planning officer for the respondent, advised that CPS 4 had been advertised twice for public consultation and that it was currently with the WAPC for recommendation to the Hon. Minister for Planning and Infrastructure. Mr Gray told the Tribunal that under CPS 4 the proposed use would be classified as an "AA" use, which means it could be approved under the scheme. From this point, the applicant asserted that the proposed use was consistent with the intent of the new scheme.
Planning issues
Mr Gray identified the principle planning issue in this review as ''amenity impacts on adjoining properties". Mr Gray's witness statement was of little benefit in advancing the respondent's contentions as it only established the procedural processes leading to the decision of the Council. The only evidence, submitted by the respondent in defence of its position, was letters of objection to the proposal received during the consultation periods. In fact, Mr Gary cited the concerns and objections raised by the neighbours as the basis for the Committee not approving the proposed use.
The key issues in the submissions related to loss of amenity, visual impacts, loss of residential use, security, traffic safety and devaluation of property. The respondent did not develop any arguments from these issues to support its assertion that the proposal would adversely impact on the amenity of the adjoining properties. The respondent did not call any of the objectors as witnesses to give evidence. Therefore, the Tribunal is unable to assess the veracity of the concern or the weight to be attributed to their perceived diminution of amenity caused by the proposed change of use.
The applicant contended that the proposed use is relatively benign and its location on South Street is probably far more amenable than residential development. The respondent did not challenge this point. The applicant maintained that the dental clinic will not lead to any additional traffic impacts on the surrounding area given that the use is likely to generate a maximum of twelve vehicle trips per day and access to the site is via Cadd Street in accordance with the requirements of the Department for Planning and Infrastructure. The applicant also contended that more than sufficient parking has been provided on site to service the functional and practical demands of the use. The respondent did not dispute this claim.
The applicant asserted that the residents more likely to be affected by the proposed development did not object to the proposal. Mr Gray, under cross-examination, conceded that some of the written submissions were from addresses up to 2 kilometres from the subject land and that some of the views of the surrounding residents may have been influenced by a previous non-conforming use located in Cadd Street that had negatively impacted on the amenity of the local residents.
Under cross-examination, Mr Gray was asked his opinion on whether the proposed use would impact on the amenity of the residential area to the extent claimed by the objectors. Mr Gray responded by saying, ''(i)n my professional opinion, with the use of appropriate conditions my view is that this proposed use could operate on that site without any detrimental impact to neighbouring properties".
The applicant also drew the Tribunal's attention to the fact that the original report from the respondent's planning officers recommended that planning consent be granted for the change of use subject to five conditions. The applicant asked Mr Gray whether he concurred with that recommendation and he responded in the affirmative. It was noted, however, that the second report from the respondent's planning officers to the council meeting of 7 February 2005 contained a recommendation that planning consent be refused for the three reasons as stated in [3] of this decision. When questioned on this change of position, Mr Gray stated:
''The staff basically were following the decision that was made by Council in November. And that the decision of Council was to not exercise its discretion so refused the application. The situation hadn't changed in as much that no new information had come to light that may led council officers to be able to continue to support the proposal …
… I guess in terms of consistency of the decisions that were being made by the Council, the officers determined – that they were – should be bound by the previous decision of the Council.''
Conclusion
TPS 3 provides discretionary power to approve ''Service - professional" uses within the "Residence" zone. The use class "Service - professional" is defined under cl 27 of the Scheme as "(s)ervices provided to clients by an accountant, architect, engineer, lawyer, medical practitioner and such other professional qualified persons as approved by the Council". A dental practitioner would fall within this use class classification.
In determining this appeal, the Tribunal is required to take into consideration the orderly and proper planning of the locality and the preservation of the amenities of the locality. The respondent failed to produce any evidence to show that the amenity of the locality would be adversely affected by the proposed change of use. The Tribunal is persuaded by the arguments presented by the applicant and does not consider, given the nature and intensity of the proposed use, that the change of use of the existing dwelling from residential to dental clinic (sole practitioner) will prejudice the orderly and proper planning of the locality or have any adverse affect on the amenity of the surrounding area.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is allowed.
2.Planning approval is granted for a change of use from Residential to Service Professional Dental Clinic - Sole Practitioner on Lot 1 (No 261) South Street, Beaconsfield subject to the following conditions:
(a)The number of employees shall be limited to a nurse/receptionist.
(b)The hours of operation to be restricted to 8.00 am‑6.00 pm Monday to Friday; 8.00 am‑1.00 pm Saturdays and the surgery shall not operate on Sundays and Public Holidays.
(c)Time allocation per appointment to be limited to a minimum of half an hour.
(d)The proposed parking bays shall be constructed, drained and marked to the satisfaction of the Director Urban Management prior to occupation of the building and commencement of the business.
(e)No vehicular access shall be permitted from South Street.
(f)Any proposed signage shall form part of a separate development application.
(g)All verge trees to be protected and retained during construction works.
I certify that this and the preceding 8 pages comprise the reasons for decision of the Tribunal.
______________________________
M Connor
Member
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