THOMPSON and CITY OF WANNEROO
[2010] WASAT 99
•9 JULY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THOMPSON and CITY OF WANNEROO [2010] WASAT 99
MEMBER: MS M CONNOR (MEMBER)
HEARD: 29 JUNE 2010
DELIVERED : 9 JULY 2010
FILE NO/S: DR 52 of 2010
BETWEEN: MICHAEL THOMPSON
Applicant
AND
CITY OF WANNEROO
Representative
Catchwords:
Town planning - Development Intermittent parking of a commercial vehicle Variation to development standards required In front of dwelling Lot has dual frontage Interface issues Visual impact Loss of amenity Precedent
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.4.1, cl 3.10.1, cl 3.10.2, cl 4.2, cl 4.23, cl 4.23.3(b), cl 4.23.3(d), cl 4.23.3(e), cl 4.23.3(k), cl 4.23.3(l), cl 4.23.6, cl 4.23.7, cl 6.4, cl 6.8, cl 6.8(a), cl 6.8(b), cl 6.8(f), cl 6.8(i), cl 6.8(n), cl 6.8(y), cl 6.9.1, cl 6.9.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review allowed
Decision of the respondent set aside and conditional approval granted
Category: B
Representation:
Counsel:
Applicant: Mr D Thompson (Representative)
Representative : Mr A Sheppard (Representative)
Solicitors:
Applicant: N/A
Representative : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988)
Goldin & Anor v Minster for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Thompson applied to the State Administrative Tribunal for review of the City of Wanneroo's decision refusing planning approval for intermittent parking of a commercial vehicle at No 49 Clarecastle Retreat, Mindarie.
The proposal required a variation to a number of the development standards and requirements specified in cl 4.23.3 of the City of Wanneroo Town Planning Scheme No 2. The principal issue raised by the respondent was that the location of the commercial vehicle in front of the dwelling would reduce the high visual amenity enjoyed by residents in the immediate vicinity and would set an undesirable precedent for parking of other commercial vehicles in the locality.
The Tribunal found that in the circumstances of this case, intermittent parking of a commercial vehicle as described and agreed to by the applicant was acceptable. In the exercise of discretion, the Tribunal considered that it was appropriate to require additional landscaping to be provided on the common boundary with No 47 Clarecastle Retreat, Mindarie and on the street boundary to ameliorate the visual impact of the commercial vehicle. The application for review was allowed and conditional approval was granted.
Introduction
Mr Michael Thompson (applicant) made application to the City of Wanneroo (respondent or Council) for approval to park a commercial vehicle on No 49 (Lot 201) Clarecastle Retreat, Mindarie (subject land).
The application to commence development was refused by the respondent at its meeting of 9 February 2010 for the following reasons:
1.The proposal is contrary to the provisions of Clause 4.23.3 of District Planning Scheme No 2;
2.The proposal, if approved, will have an adverse impact on the residential amenity enjoyed by the residents in the locality; and,
3.The proposal may establish a precedent for the parking of commercial vehicles in the locality.
The applicant, on 16 February 2010, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
The subject land and its surroundings
The subject land is more particularly described as Lot 201 Clarecastle Retreat, Mindarie being the land comprised in Certificate of Title Volume 2199 Folio 547 and is 1657 square metres in area. The subject land has dual frontage; that is, one of its boundaries fronts directly onto the marina and another onto Clarecastle Retreat.
Clarecastle Retreat provides vehicular access to the lots that front onto the marina, as well as cluster of R40 coded lots on the other side of the road. The road terminates as a culdesac and the subject lot is all but one from the head of the culdesac.
The existing dwelling is substantial in size, as are all the other dwellings in the street, and presents to both the marina and Clarecastle Retreat. There is a greater than usual setback to the dwellings in this section of Clarecastle Retreat as the dwellings have been designed to take advantage of the marina frontage.
The proposal
The applicant, who is the owner of the subject land, is seeking approval for intermittent parking of a commercial vehicle (truck) on the subject land. He and his brother, Mr David Thompson who resides at No 51 Clarecastle Retreat, Mindarie, are partners in a company known as Indian Ocean Rock Lobster (the company). The commercial vehicle is part of a fleet of trucks owned by the company and is used to transport live lobster from the Cervantes business to Perth International Airport. The initial proposal sought approval for a truck that was 3.8 metres high, 2.5 metres wide and 10.2 metres long. This was later changed to a truck that is 3.2 metres high, 2.5 metres wide and 7.6 metres in length.
It is intended that the truck will be parked behind the existing screen fence on the existing paved area between the Clarecastle Retreat street boundary and the existing dwelling.
Mr David Thompson, who represented his brother in these proceedings, told the Tribunal that the application was only for intermittent parking but that the times and duration of parking would vary and were hard to quantify. He explained that during the lobster season the truck is driven by their employees and leaves from Cervantes direct to Perth International Airport and returns to Cervantes in a 6 to 7 hour turnaround time and therefore, during this period, there would be no need to park the truck on the subject land. He indicated that it was during the offseason that the need arose, as casual staff were retrenched and the driving was undertaken by the Thompson brothers, mainly himself, and that due to business commitments coinciding with a shipment of lobster, it was more practical to stay at home over night or possibly for a few days. He stressed that the parking was to be intermittent and that the applicant was not seeking approval to park the truck on the subject land for 365 days of the year. He also indicated that he was prepared to accept a time limited approval and keep a register showing the dates and times the truck is parked on the subject land.
Planning framework
The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Marina' under the City of Wanneroo District Planning Scheme No 2 (TPS 2 or Scheme).
The marina zone is intended to accommodate a wide range of appropriate development adjacent to marinas (cl 3.10.1). The objectives of the zone are set out in cl 3.10.2 of the Scheme and are as follows:
(a)accommodate commercial, residential, recreational and associated activities relating to marinas; and
(b)guide and manage the planning and development of areas adjacent to marinas to ensure a diverse mix of use and high standards of amenity.
The subject land is also located with District 1 Harbour North of Agreed Structure Plan No 13 (ASP 13). Clause 3.1.1 of ASP 13 states that the provisions of the 'Residential' zone in the Scheme apply to District 1.
Clause 3.4.1 of the Scheme states that:
The Residential Zone is intended primarily for residential development in an environment where high standards of amenity and safety predominate to ensure the health and welfare of the population.
Clause 4.23 of the Scheme relates to commercial vehicle parking in various zones, including the Marina zone. Parking of commercial vehicles is not permitted except in accordance with the following provisions:
4.23.2A person shall not park, or permit to be parked, more than one commercial vehicle on any lot in the [Marina zone] …
4.23.3A person may only park a commercial vehicle on a lot in the zones referred to in this clause if:
(a)the lot on which the vehicle is parked contains only a single house (including any associated outbuildings) provided that Council may permit the parking of such vehicle on a lot which contains grouped dwellings if it is of the opinion that this will not adversely affect the amenity of the grouped dwelling development or the surrounding area;
(b)in the case of a lot in the … Marina … [zone] the vehicle is parked entirely on the subject lot and is located on a hard standing area which is located behind the front of the dwelling, or alternatively the vehicle is parked within a garage …;
(c)the vehicle is used as an essential part of the lawful occupation of an occupant of the dwelling. The foregoing requirement of this item shall not be satisfied in any case unless the owner of the vehicle or an occupier of the dwelling within seven days of the Council making a request, supplies to the Council full information as to the name and occupation of the person said to be using the vehicle. The request for that information is made for the purpose of this item by posting the request to the address of the owner of the vehicle shown on the vehicle registration, or by posting the request to or leaving it at the dwelling addressed in general way to the occupier. The parking of the vehicle on the lot does not authorise the conduct on that lot of the occupation of the vehicle user;
(d)the vehicle does not exceed 3 metres in height (including load), 2.5 metres in width, or 8 metres in length, …;
(e)the vehicle is not started or manoeuvred on site between the hours of 10.00 pm and 6.00 am the next following day;
(f)while on the lot, the vehicle's motor is not left running while the vehicle is unattended or in any event for any period in excess of five minutes;
(g)storage of liquid fuels on the lot complies with the Explosive and Dangerous Goods Act, 1961;
(h)the vehicle is not used or designed for use for the transportation of livestock or the transportation or disposal of liquid or solid waste or other use so as to cause nuisance or pollution as defined in the Health Act 1911 and/or the Environmental Protection Act 1986;
(i)the vehicle is not carrying a refrigeration unit which is operating on a continuous or intermittent basis;
(j)while on the lot, there is no transfer of goods or passengers from one vehicle to another vehicle, [loading] or unloading of the vehicle, or storage of goods associated with the use of the vehicle;
(k)the vehicle is not used or operated as a tow truck or other emergency vehicle, between the hours of 10.00 pm to 6.00 am in a manner that adversely affects the residential amenity of the area;
(l)the parking and manoeuvring of the vehicle shall not cause damage or removal of existing vegetation on the lot.
Subclause 4.23.6 provides express provision for 'a variation to any of the requirements of subclause 4.23.3 (b), (d), (e), (k) and (l) provided the Council is satisfied in the circumstances that the variation will not adversely affect the amenity of the area surrounding the subject land'. Landowners and occupants of surrounding lots may be invited to comment on the proposed variation. Pursuant to cl 4.23.7, an approval granted under cl 4.23.6 is personal to the person to whom it is granted and is not capable of being transferred or assigned to any other person, and does not run with the land in respect of which it is granted.
Clause 6.9.1 of the Scheme provides the authority for the Council to refuse, approve an application with or without conditions or defer consideration or determination pending receipt of additional material. Without limiting the scope of the discretion to determine an application, cl 6.8 sets out the matters to which due regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the aims and provisions of the Scheme (cl 6.8(a));
•the requirements of orderly and proper planning (cl 6.8(b));
•an agreed structure plan prepared under the provisions of Part 9 of the Scheme (cl 6.8(f));
•the compatibility of the use within its setting (cl 6.8(i));
•the preservation of the amenity of the locality (cl 6.8(n));
•any relevant submissions received on the application including any relevant submission received by the applicant (cl 6.8(y)); and
•any relevant comments or submission received from any authority or other party consulted under cl 6.4.
Clause 6.9.2, amongst other things, provides the power to limit the period of time of approval. After the expiration of the period the use and/or other development is to cease and unless otherwise stipulated by the Council the site is required to be restored to the condition existing at the time when the approval was given, unless a further approval is sought and obtained.
Issues
Whether variations required to the commercial vehicle parking provisions of the Scheme will adversely affect the amenity of the area surrounding the subject land
The respondent asserted that that revised proposal required variation to at least two, or possibly three, of the requirements set out in cl 4.23.3 of the Scheme for the following reasons:
•subclause (b), as the truck could not be parked behind the front of the dwelling or within a garage as the dwelling has been built across the whole width of the property and the height of the vehicle prevents it from entering the undercroft garage;
•subclause (d), as the height of the vehicle was 0.2 metres in excess of the 3 metres specified; and
•possibly subclause (c), as it was not clear from the evidence as to whether the vehicle is an essential part of the occupation of an occupant of the dwelling or rather his brother, who resides at the adjoining property.
In order for subclauses (b) and (d) to be varied, the decisionmaker is required to be satisfied that the circumstances of the variation will not adversely affect the amenity of the area surrounding the subject land: cl 4.23.6. As to subclause (c), the Tribunal was directed to cl 4.2 of the Scheme which provides power to vary development standards and requirements, and may only be exercised if the decisionmaker is satisfied that:
(a)approval of the proposed development would be appropriate having regard to the criteria set out in Clause 6.8; and
(b)the non-compliance will not have any adverse effect on the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.
Although the applicant is a partner and is actively involved in the operations of the company, the evidence suggests that Mr David Thompson will be the principal driver of the truck during the offseason and as such, subclause (c) of cl 4.23.3 is applicable. The Tribunal is satisfied that the vehicles is used as an essential part of the lawful occupation of an occupant of the dwelling but acknowledges that in the main, the parking of the truck on the subject land will be undertaken by his brother, who resides next door at No 51 Clarecastle Retreat. The Tribunal, in considering the matters set out in cl 6.8, does not consider that a variation that will permit Mr David Thompson to be the principal driver of the truck will have any adverse impact on occupiers or users of the subject land or the inhabitants of the locality or upon the likely future development of the locality.
With respect to subclause (b), the respondent submitted that the location of the commercial vehicle in front of the dwelling would reduce the high visual amenity enjoyed by residents in the immediate vicinity and would set an undesirable precedent for the parking of other commercial vehicles in the locality.
During the preparation of documents for the hearing the respondent sought to adduce evidence linking this application to the operation of the commercial jetty located in front of the subject land. The respondent resiled from this position and agreed that this application was not related to any previous dealings involving the commercial jetty.
Mr Aiton Sheppard, Senior Planning for the City of Wanneroo, was called to give evidence for the respondent. He considered the vehicle to be highly intrusive and its presence adversely affected the visual amenity of the surrounding properties and detracted from the streetscape. He also referred to the submissions received by the respondent from residents of Clarecastle Retreat, whose objections related to the impact of the vehicle on visual amenity. The respondent did not call any of the objectors as witnesses to give evidence and therefore, the Tribunal is unable to assess the veracity of their concern or the weight to be attributed to their perceived diminution of amenity. However, the concerns raised by the objectors about visual impact and loss of amenity are relevant considerations in the determination of this application and have been addressed by the respondent in presenting their case.
The vehicle is clearly visible from the street and residences in the immediate vicinity of the subject land. The respondent argued that the visual impact is beyond what residents may reasonably expect to occur in their neighbourhood and as such, adversely affects the amenity of the area surrounding the subject land. The Tribunal may have agreed with this argument in a traditional residential subdivision setting, however, the circumstances of this residential enclave are somewhat unique in that the lots on one side of the Clarecastle Retreat have dual frontages and as such, do not have what is usually described as a rear yard. Mr Sheppard conceded, and the Tribunal agrees, that the primary frontage of the subject land is considered to be the marina and that Clarecastle Retreat's main function in terms of the lots fronting onto the marina was to provide vehicular access to those lots.
This pattern of subdivision produces a challenge as activities that are usually considered acceptable in rear yards become objects of contention and require sensitive design to ameliorate their impacts on the adjoining streetscape. ASP 13 pays particular attention to interface issues with the marina but does not address the dual frontage issue. Given that the primary frontage to the subject land is the marina and Clarecastle Retreat's function is to provide vehicular access to the lot, it would be unreasonable to apply the same principles that would be used if the setback area was a traditional front setback area. Although, it is essential to ensure that development within this setback area does not have any significant adverse impact on the streetscape or the residential amenity of the surrounding properties.
The Tribunal is persuaded in the circumstances of this case that the amenity impacts resulting from intermittent parking of a commercial vehicle as described and agreed to by the applicant are acceptable. The minor variation required to subclause (d), in relation to the height of the vehicle, is also considered to be acceptable. However, the Tribunal considers it would be appropriate in the exercise of discretion to require additional landscaping to be provided on the boundary that is common with No 47 Clarecastle Retreat and on the street boundary to ameliorate the visual impact of the truck on the street and the residents of adjoining properties. The Tribunal notes Mr David Thompson's request to defer the imposition of such a condition until the subsequent reconsideration of the matter at the expiry of the time limited approval, at which time the intermittency of the activity will be evident and the need for additional landscaping established. The Tribunal is not persuaded that the need for additional landscaping is contingent on the frequency of parking but is concerned that there is the need to provide visual relief to soften the impact of a truck parked on the surrounding. The Tribunal considers that at least a minimum of two trees be planted along the common boundary of No 47 Clarecastle Retreat and one additional tree along the street boundary. The position and species of tree should be agreed by the Council and be planted in a semimature state.
Whether approval will create an undesirable precedent for the parking of commercial vehicles in the locality
Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
For precedent to be a relevant factor both tests must be satisfied. In this instance, for reasons discussed earlier, the proposed development is unobjectionable. Therefore, the adverse precedent argument is not a relevant consideration in this case, as each subsequent case will be considered and determined on its own merits.
Conditions
As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers that approval of the application, subject to conditions is appropriate. A document containing eight conditions was filed by the respondent.
The applicant agreed to all of the conditions except for condition 2, which reads as follows:
The Council may delete Condition 1 [approval for an initial period of 12 months], or extend the time limit specified therein for a further period, after consultation with the owners of 36, 38A & B, 40, 45 and 47 Clarecastle Retreat, Mindarie.
The applicant was concerned that the condition might be contingent on the approval of the neighbours. The Tribunal does not support the imposition of this condition as it is not a condition as such, but is framed as advice and indicates the possible actions open to the respondent.
During the hearing, the respondent suggested that a further condition could be imposed restricting the parking of the truck to overnight only. The Tribunal, at this stage does not consider such a condition to be necessary on the basis of what has been proposed by the applicant, although this may be reviewed at the expiry of the time limited approval when the degree of intermittency will be more fully understood from the register of dates and times the truck is parked on the subject land.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 9 February 2010 is set aside and a decision substituted that development approval is granted for permission for intermittent parking of a commercial vehicle on No 49 (Lot 201) Clarecastle Retreat, Mindarie subject to the following conditions:
i)Approval is granted for an initial period of twelve months expiring on 9 July 2011 for Mr David Thompson of No 51 Clarecastle Retreat, Mindarie, to park a commercial vehicle at No 49 (Lot 201) Clarecastle Retreat, Mindarie. A fresh application for a planning approval must then be lodged with the City of Wanneroo and any approval issued for the continuation of the activity may be either for a further fixed period or for an unlimited time beyond the 12 months herein approved.
ii)The commercial vehicle shall be parked on the existing paved area of No 49 (Lot 201) Clarecastle Retreat, Mindarie as indicated on the attached plans submitted with the application.
iii)A record, in the form of a register, is to be kept of the dates and times the commercial vehicle is parked on No 49 (Lot 201) Clarecastle Retreat, Mindarie. The register is to be provided to the respondent on the expiry of this approval.
iv)The vehicle dimensions shall not exceed 3.2 metres in height, 2.5 metres in width or 8 metres in length.
v)The vehicle shall not be started or manoeuvred between the hours of 10.00 pm to 6.00 am the following day.
vi)While on No 49 (Lot 201) Clarecastle Retreat, Mindarie, the refrigeration unit shall be switched off and the vehicle's motor shall not be left running for longer than five (5) minutes, regardless of whether the vehicle is attended or not.
vii)While on No 49 (Lot 201) Clarecastle Retreat, Mindarie, there shall be no unloading or loading of the vehicle, no transfer of goods from the vehicle to any other vehicle and no storage of goods associated with the use of the vehicle.
viii)No servicing, repairs, adjustments or cleaning (with the exception of cleaning the windscreen) shall be carried out on the vehicle at No 49 (Lot 201) Clarecastle Retreat, Mindarie.
ix)A minimum of two trees shall be planted along the common boundary with No 47 Clarecastle Retreat, Mindarie and one additional tree planted along the street boundary. The position and species of tree shall be agreed by the Council and planted in a semimature state.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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