Vincent and Fitzgerald Pty Ltd and City Of Vincent
[2014] WASAT 75
•23 JUNE 2014
VINCENT & FITZGERALD PTY LTD and CITY OF VINCENT [2014] WASAT 75
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 75 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:7/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 23/06/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review upheld Decision of respondent modified by deletion of condition of temporary approval | ||
| B | |||
| PDF Version |
| Parties: | VINCENT & FITZGERALD PTY LTD CITY OF VINCENT |
Catchwords: | Town planning Development application Use of premises as a recreation facility Imposition of condition of temporary approval Whether premises has adequate parking facilities Concern as to parking congestion in area Compliance with parking standards Local government street parking controls Whether there is a prospect that use of premises will contribute to unacceptable impact on amenity of area Whether temporary approval is unreasonably onerous |
Legislation: | Environmental Protection Act (Noise) Regulations Local Government Act 1995 (WA) Planning and Development Act 2005 (WA) Road Traffic Code 2000 (WA) State Administrative Tribunal Act 2004 (WA), s 31(1) Town of Vincent Town Planning Scheme No 1, cl 44 |
Case References: | Bayer and City of Rockingham [2014] WASAT 18 New Frontier Pty Ltd and City of Vincent [2013] WASAT 187 |
Orders | On the application determined on the documents by Senior Sessional Member John Adderley, it is on 23 June 2014 ordered that:,1. The application for review is allowed.,2. The decision of the respondent made on 7 April 2014 to grant conditional development approval for a recreational facility at No 315 (Lots 528 and 530) Fitzgerald Street, North Perth is varied as follows:,(i) Condition 1.9 is deleted. |
Summary | This is a review of the respondent's decision to impose a condition of temporary approval upon its planning consent for a recreation facility in Fitzgerald Street, North Perth.,The respondent imposed the condition based on concern that the proposed use may exacerbate parking nuisance in the surrounding residential streets and should therefore be the subject of review after the elapse of 12 months.,The Tribunal found that the proposed development fully complied with the respondent's town planning requirements, particularly in relation to parking standards wherein onsite parking provision comfortably exceeded the respondent's specifications. Other conditions of the development approval prescribed appropriate management of parking arrangements. Accordingly, it would not appear to be reasonable to expect that the development should cause nuisance by way of exacerbating parking problems elsewhere.,Evidence was submitted that the respondent had taken separate action to address local area parking problems by the introduction of onstreet parking controls.,The Tribunal concluded, in the circumstances of this proposal, that the temporary approval condition was unnecessary and onerous and should be deleted from the planning consent. ,The application for review was upheld and the respondent's decision of approval was modified by deletion of the condition of temporary approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : VINCENT & FITZGERALD PTY LTD and CITY OF VINCENT [2014] WASAT 75 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 JUNE 2014 FILE NO/S : DR 7 of 2014 BETWEEN : VINCENT & FITZGERALD PTY LTD
- Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning Development application Use of premises as a recreation facility Imposition of condition of temporary approval Whether premises has adequate parking facilities Concern as to parking congestion in area Compliance with parking standards Local government street parking controls Whether there is a prospect that use of premises will contribute to unacceptable impact on amenity of area Whether temporary approval is unreasonably onerous
Legislation:
Environmental Protection Act (Noise) Regulations
Local Government Act 1995 (WA)
Planning and Development Act 2005 (WA)
Road Traffic Code 2000 (WA)
State Administrative Tribunal Act 2004 (WA), s 31(1)
Town of Vincent Town Planning Scheme No 1, cl 44
Result:
Application for review upheld
Decision of respondent modified by deletion of condition of temporary approval
Summary of Tribunal's decision:
This is a review of the respondent's decision to impose a condition of temporary approval upon its planning consent for a recreation facility in Fitzgerald Street, North Perth.
The respondent imposed the condition based on concern that the proposed use may exacerbate parking nuisance in the surrounding residential streets and should therefore be the subject of review after the elapse of 12 months.
The Tribunal found that the proposed development fully complied with the respondent's town planning requirements, particularly in relation to parking standards wherein onsite parking provision comfortably exceeded the respondent's specifications. Other conditions of the development approval prescribed appropriate management of parking arrangements. Accordingly, it would not appear to be reasonable to expect that the development should cause nuisance by way of exacerbating parking problems elsewhere.
Evidence was submitted that the respondent had taken separate action to address local area parking problems by the introduction of onstreet parking controls.
The Tribunal concluded, in the circumstances of this proposal, that the temporary approval condition was unnecessary and onerous and should be deleted from the planning consent.
The application for review was upheld and the respondent's decision of approval was modified by deletion of the condition of temporary approval.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Bayer and City of Rockingham [2014] WASAT 18
New Frontier Pty Ltd and City of Vincent [2013] WASAT 187
Introduction
1 This is a review of the decision of the City of Vincent (respondent) to impose a particular development approval condition limiting its approval of a recreation facility at No 315 (Lots 528 and 530) Fitzgerald Street, North Perth (land, building or premises) for a period of 12 months only. This temporary approval condition requires that it would be necessary to reapply for a new approval if the use as a recreation facility is sought to be continued after the elapse of 12 months.
2 The application to vary conditions for use of the premises as a recreation facility (originally approved by the respondent in 2006) was submitted to the respondent by Mr Mark Burns on behalf of Vincent & Fitzgerald Pty Ltd (applicant) on 7 November 2013.
3 In the absence of a decision by the respondent at the time, the applicant lodged an application for review of the deemed refusal with the State Administrative Tribunal (Tribunal) on 3 January 2014.
4 Following consideration of submissions from the community, on 11 February 2014, the respondent subsequently resolved to refuse the application to vary conditions.
5 As a consequence of mediation before the Tribunal and pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent considered an amended application to vary the conditions of use of the premises.
6 On 7 April 2014, the respondent issued a notice of approval of the amended application subject to a number of conditions, including condition 1.9 specifying that approval for the recreation facility is for a limited period of 12 months only. It is the appropriateness of this temporary approval condition that is the subject of this review.
The proposed use and its context
7 The proposal, to which the disputed condition of approval under review attaches, is for the use of a former Baptist Church hall (hall), being premises located on the corner of Fitzgerald and Vincent Streets, North Perth, for the purposes of a recreation facility.
8 The floor area of the hall is approximately 141m2. It is served by seven car parking spaces accessed from Fitzgerald Street.
9 The hall is adjacent to another tenancy on Vincent Street, approved and used for a recreation facility, trading as Bikram Yoga.
10 Aerial photography documentation indicates that properties to the north, along the west side of Fitzgerald Street and to the east along Vincent Street, are predominantly of residential character. Side streets west of Fitzgerald Street (Chelmsford Street) and north of Vincent Street (Leake Street) are also residential. The eastern side of Fitzgerald Street, northwards, appears to be largely commercial, as does both eastern and western sides of the street to the south of the land.
11 According to documentation provided to the Tribunal by the respondent, there is only limited short-term on-street parking in the locality. Both Fitzgerald Street and Vincent Street have morning and afternoon 'clearway' constraints on parking.
Statutory and policy instruments
12 The land is zoned Residential R60 under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
13 According to the scheme interpretations of TPS 1, the definition of:
'recreational facilities' means any land or building or part of a building used for:
(a) public tennis courts;
(b) public or private swimming pools;
(c) squash courts or centres;
(d) basketball centres;
(e) gymnasia;
(f) ice and roller skating rinks;
(g) physical health studios; and
(h) any other similar purpose;
in respect of which a charge is made for the use thereof[.]
14 A recreational facility is an 'AA' use in the Residential zone, meaning that it is a use not permitted unless the Council has exercised its discretion by granting planning approval.
15 Clause 44, Temporary Planning Approval, provides that:
The Council may, in granting planning approval, limit the period during which the development may be carried out where -
(a) it considers that the development in excess of that period might adversely affect the amenities of the locality or the orderly and proper planning of the locality; or
(b) for any other reason it considers that approval ought to be granted for a limited or trial period.
16 In accordance with the respondent's Policy No 7.7.1 Parking and Access (PP7.7.1), the respondent has calculated and determined that for attendance of a maximum of 25 persons at the premises, there should be 4.25 car parking spaces provided on the land.
The respondent's decision
17 The respondent granted approval of the application dated 4 November 2013 for reconsideration of conditions of planning approval for a recreational facility at the premises, subject to the following conditions:
1.1 [a]ll external fixtures, such as television antennas (of a non-standard type), radio and other antennas, satellite dishes, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are [to be] designed integrally with the building, and [are to] be located so as not to be visually obtrusive;
1.2 [t]he sign located on the fence adjacent to Vincent Street and the sign located on the fence adjacent [to] No. 317 Fitzgerald Street shall be removed within 28 days of the date of this approval;
1.3 [a]ny new signage that does not comply with the City's Policy relating to Signs and Advertising shall be subject to a separate planning application, and all signage shall be subject to a Sign Licence application being submitted and approved prior to the erection of the signage;
1.4 [t]he maximum net lettable area of the recreational facility shall be limited to 141 square metres, as shown on approved plans;
1.5 [a] maximum of 25 people shall be on the site at any one time …;
1.6 [t]he development shall be operated in accordance with the Parking Management Plan dated 25 February 2014;
1.7 [t]he hours of operation shall be limited to 7:00am to 9:00pm on Monday to Thursday, 7:00am to 8:00pm on Friday, 7:30am to 6:00pm on Saturday, and 9:00am to 6:00pm [on] Sunday …;
1.8 there shall be a 30 minute interval between all class times, to allow for reasonable patron movement;
1.9 approval for [a] [r]ecreational [f]acility is for a period of twelve (12) months only and should the applicant wish to continue the use after that period, it shall be necessary to re-apply to and obtain approval from the City prior to the continuation of the use; and
1.10 [t]here bicyle parking spaces shall be installed on [the] site in accordance [with] the Class 3 facility requirements as outlined by the City's Policy No. 7.7.1 relating to Parking and Access.
The issue to be addressed
18 The issue to be addressed is whether there is a reasonable expectation that the practical operation of the attendance limit for the premises (prescribed by condition 1.5 of the planning approval and the hours of operation (prescribed by condition 1.7 of the planning approval might cause such an impact on the amenity of the locality that it warrants limiting the approved use for a period of 12 months (as prescribed by condition 1.9 of the planning approval.
The respondent's argument
19 Argument was presented in a written submission prepared by Mr Ben Doyle of Planning Solutions, a firm of urban and regional planning consultants acting on behalf of the respondent.
20 Mr Doyle argued that PP 7.7.1 has an objective to 'define parking requirements that will meet the needs of the users of developments without resulting in an oversupply of parking', and that therefore, by definition, even with compliance with the policy, there may be a real undersupply of on-site car parking.
21 Given such a risk of on-site undersupply of parking, there is, according to Mr Doyle, the possibility of additional cars being parked on surrounding residential streets and verges.
22 Mr Doyle drew attention to the circumstance that parking of cars involves noise associated with engine and tyre noise, car doors opening and shutting, and the noise of people talking. Such noise may affect the amenity of residential areas.
23 According to Mr Doyle, where there is an increased turnover of parking associated, for example, with recreational classes, there would be an impact on residential amenity.
24 Mr Doyle described the constraints on parking in the surrounding streets, including narrow carriageways and time-limited street parking.
25 The locality, according to Mr Doyle, has experienced a high number of car parking complaints, particularly from residents of Chelmsford Road; 44 complaints were registered by the respondent over a 12-month period in 2013.
26 Mr Doyle advised that the respondent has recently modified on-street parking controls in Chelmsford Road to address parking problems. It is not yet possible to know whether these new arrangements will resolve parking concerns.
27 The 2014 planning approval for the land permits recreational activities for seven days a week, including up to 9pm on Mondays to Thursdays. Mr Doyle noted that the specific nature of recreational activities to be undertaken on the premises was unknown and, in such circumstances, it would be prudent to approve the use on a trial basis.
28 Mr Doyle pointed out the particular provisions of TPS 1 empowering the time limitation of a planning approval, and drew attention to the level of concern about parking, traffic and noise expressed in submissions offering comment on the planning application. 13 submissions objected to the application.
29 Mr Doyle also commented that it is presently unknown whether the applicant's Parking and Management Plan will be sufficient to prevent adverse impact on the amenity of the locality.
30 Responding to the applicant's reference to New Frontier Pty Ltd and City of Vincent [2013] WASAT 187 (New Frontier) in respect of an expectation of a lesser degree of amenity when residential uses adjoin commercial uses, Mr Doyle proposed that the example cited in New Frontierwas not relevant. In the New Frontier matter, the proposed use was in a Local Centre zone. In this case before the Tribunal, the land in question and the surrounding locality is all zoned Residential. Mr Doyle suggested that residents should, therefore, have a reasonable expectation that their amenity will not be diminished by commercial uses approved within a Residential zone under discretionary powers.
31 Further responding to the applicant's argument, Mr Doyle emphasised that the approval permits a total attendance at the premises of 25 people. It is the impact of attendance at the premises of this number of persons on the amenity of the locality that should be considered.
32 Mr Doyle observed that control of on-street parking under the Road Traffic Code 2000 (WA) (Traffic Code) and local laws under the Local Government Act 1995 (WA) (LG Act) only addresses the matter of unlawful parking; they are not suitable instruments for controlling parking demand and use.
33 According to Mr Doyle, the approved recreational facility could attract up to 120 customers per day - maybe many more, dependent on the number of classes held. Given the very limited on-street parking in surrounding residential streets, the proposed use has the potential to exacerbate parking issues in the locality if parking is not properly managed. The proposed use is also intended to operate during the 'peak' after work period when many residents will be returning home.
The applicant's argument
34 The applicant's argument was recorded in a written submission by Mr Mark Burns, acting as agent for the applicant.
35 Mr Burns described that this application is a reconsideration of the conditions of approval of the originally approved recreation facility in 2006. The proposed changes are limited to marginally increased hours of daily operation and an increased attendance capacity for the premises by an extra 14 persons.
36 Based on the available on-site parking, the attendance capacity for the premises, calculated in accordance with the respondent's PP 7.7.1, is actually 39 persons. This number is well in excess (by 40%) of the presently approved capacity of 25 persons.
37 The only possible factors affecting amenity of the locality, according to Mr Burns, are noise and parking. In each case, residents of the area are already protected by the Environmental Protection Act (Noise) Regulations 1987 (WA) (Noise Regulations), the Traffic Code and the LG Act.
38 Mr Burns was of the opinion that the condition limiting the approval to 12 months was 'overkill'.
39 Mr Burns referred to the New Frontier case as an 'all but identical' precedent. Attention was drawn by Mr Burns to the recorded observation of the Town Planning Appeal Tribunal mentioned in the Tribunal's record at [19] of New Frontier, that 'it barely needs to be said that residential uses in close proximity to non-residential uses cannot expect the same degree of amenity as would be found in a homogeneous residential suburb'. In the New Frontier case, the Tribunal ordered deletion of a condition of approval limiting a particular commercial activity for a 12-month period.
40 Mr Burns further noted that the time taken to conduct an appeal unfairly disadvantaged the applicant because it was time elapsed from the 12 months of the approval.
41 Responding to the assertion that there may be an undersupply of car parking at the premises, Mr Burns pointed to the circumstance of compliance with PP 7.7.1, and to the fact that there is an excess of parking provision on the land by almost 40%.
42 On the issue of recorded car parking complaints in Chelmsford Road in 2013, Mr Burns noted that the local government had since altered the manner by which cars can be parked on that street. Parking is now restricted to one side of the street in order to avoid obstruction of a narrow carriageway.
43 Mr Burns acknowledged that a tenant has not yet been secured for the recreation facility. It is very likely that any tenant would baulk at the prospect of the limited tenure intended by condition 1.9 of the planning approval. In any case, no tenant would be permanent; they come and go as leases expire or they outgrow premises. It would therefore be unreasonable to use condition 1.9 of the planning approval to review the effect on local amenity by any particular tenant.
Analysis
44 The respondent's argument to maintain condition 1.9 of the planning approval relies essentially on the premise that there may be insufficient car parking on the site. Such a circumstance may lead to an undesirable impact on the amenity of the area as a consequence of nuisance generated by the parking of cars in the surrounding residential streets, a situation that should be subject to review after the elapse of 12 months.
45 The applicant views condition 1.9 of the planning approval as unreasonable, because the proposed use complies with the respondent's parking policy, and onerous, because the condition inhibits the ability to tenant the premises for a viable period of lease.
46 Whilst other matters and circumstances are cited in the parties' arguments, they are, in the Tribunal's opinion, mostly peripheral and not germane to the issue.
47 The respondent's PP 7.7.1 in respect of a recreation facility requires the provision of one car parking space per four persons attending. This standard would thus require the provision of 6.25 car parking spaces based on the attendance limit of 25 persons. The premises is provided with seven car parking bays. Under the policy, certain adjustment factors are allowable if the development or use is advantaged by site and design features. In this case, the respondent has allowed dispensations based on the circumstance that there is a bus route and a public car park within 400 metres of the land. The resultant requirement for parking is thus reduced from 6.25 to 4.25 car parking bays.
48 The Tribunal accepts that the proposed recreation facility therefore fully complies with the respondent's car parking requirements.
49 The respondent, nevertheless, argues a case that there is the prospect of an on-site parking shortage causing a transfer of demand onto the surrounding residential streets.
50 The Tribunal has difficulty with this argument, as it implies that the respondent's own parking policy is flawed because the parking standards are too generous.
51 There is no evidence, though, that the standards of PP 7.7.1 are in question or under challenge. The Tribunal notes that it is a policy that has been in place since 2001, and presumably has been reasonably well founded and tested over time.
52 The Tribunal noted the submissions of local residents, particularly concerning parking congestion in Chelmsford Road. The overlap of parking demand between consecutive sessions at a currently operating recreation facility is apparently a cause of extra parking conflict.
53 It is worth recording, at this juncture, that other businesses in the area may well be contributory factors to the parking concerns identified by local residents. In submissions, reference was made to the other particular recreation activity that was contributing towards parking problems in the area. It is important, therefore, not to assume that the proposal the subject of this review should be assigned responsibility, or an added responsibility, for the parking problems of the area unless there is evidence to that effect.
54 The principal concern raised in the submissions has been responded to by the local government by way of implementing comprehensive restrictions in Chelmsford Road designed to prevent inappropriate parking. Further, the planning approval for the recreation facility in question is conditioned to require a 30-minute interval between class times in order to avoid an overlap of attendees. As mentioned above, this has been a particular concern raised by the residents of the area, as it is seen to cause short-term 'doubling up' of parking demand.
55 The Tribunal is satisfied, however, that the respondent's actions to manage parking in Chelmsford Road and to appropriately condition the planning approval for the recreational facility are sensible and suitable to avoid an unreasonable impact on the amenity of the locality. The adequate provision of on-site parking on the land and the parking management arrangements built into the approval may be seen, at least for the purposes of this development, as reasonable precautions against contributing to parking nuisance elsewhere in the locality.
56 Other than as a consequence of an overall possible shortfall of parking and the interval between class times, as each circumstance affects parking availability, the respondent has not argued the impact on amenity of the operational hours assigned to the recreational facility. The Tribunal views this aspect of the use of the premises as a question of whether any unacceptable nuisance may be generated from the premises itself affecting the immediate surrounds. This, of course, is an issue distinct from the question of off-site parking in the surrounding streets.
57 No argument was put to the Tribunal of any such negative effect on the immediate surrounds resultant from the amended approved hours of operation. The Tribunal therefore accepts that there is no likely direct impact on the amenity of the area as a result of the actual on-site activities of the recreation facility.
58 The key consideration in this matter still turns on whether the proposed use complies with the respondent's TPS 1 and policy requirements.
59 Referring to cl 44 of TPS 1, the Tribunal acknowledges that it would be appropriate to apply a temporary approval to the recreational facility if it was a use that is anticipated to become inappropriate in the area over time, or if it was a use that should be trialled because of a possibly uncertain consequence of its activities. In the latter circumstance, the Tribunal would expect that the use might have some characteristics that are uncertain or ambiguous in respect of compliance with planning standards, or at least be at the margins of compliance, in order to reasonably contemplate an uncertainty of effect. On the evidence before it, the Tribunal is of the opinion that neither of these characteristics is apparent. The proposed use has been shown to be well within the requirements of all relevant planning standards.
60 The Tribunal considers that it is an important consideration for a planning approval to offer confidence, certainty and continuity to the recipient of the approval. In this respect, a temporary approval represents a substantial uncertainty which will limit tenure and compromise commercial viability. It would therefore be an onerous requirement, unless it could be shown that there was a reasonable prospect that the proposal might be, or might become over time, questionable in its compliance with the respondent's town planning framework.
61 It is the Tribunal's opinion that these circumstances are not apparent on the evidence before it, and that otherwise the proposed recreation facility fully and adequately conforms with the relevant requirements of the respondent's TPS 1 and PP 7.7.1. Additionally, there is no evidence before the Tribunal that the hours of operation of the recreation facility are, in themselves, a potential cause of unacceptable impact on the amenity of the area.
62 The proposal should not, therefore, be the subject of a temporary planning approval.
63 In considering this review, the Tribunal has, where relevant, taken into account the reference by the parties to New Frontier and Bayer and City of Rockingham[2014] WASAT 18.
Conclusion
64 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to impose a condition of temporary approval for the use of premises as a recreation facility at No 315 (Lots 528 and 530) Fitzgerald Street, North Perth is upheld. Accordingly, the relevant condition imposing temporary approval should be deleted from the planning consent.
Order
65 The Tribunal therefore makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 7 April 2014 to grant conditional development approval for a recreational facility at No 315 (Lots 528 and 530) Fitzgerald Street, North Perth is varied as follows:
(1) Condition 1.9 is deleted.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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