WARR and TOWN OF CAMBRIDGE - [2019] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WARR and TOWN OF CAMBRIDGE [2019] WASAT 27
MEMBER:   MR P DE VILLIERS, MEMBER
MR S WILLEY, MEMBER

HEARD:   16 AND 17 APRIL 2019
DELIVERED          :   15 MAY 2019
FILE NO/S:   DR 325 of 2018
BETWEEN:   NIGEL AND DONNA WARR
Applicants
AND
TOWN OF CAMBRIDGE
Respondent

Catchwords:

Development - Mechanical workshop - Car wash - Local centre - Precinct planning policy - Policy statement of intent - Day-to-day needs of local residents - Ordinary routine and regular activity - Is the mechanical workshop an 'IndustryGeneral' use - Adversely affecting the amenity of the locality - Measures to mitigate the impacts are not relevant - Compliance with the noise regulations - Impact wrench - Impulsiveness - Traffic noise - 'Local Centre' zoning - Expectations of amenity - Hours of operation of car wash - Layout and built form - Approval of one use would constitute a new proposal - Mechanical workshop does not fulfil a day-to-day need - No sound basis to depart from policy - Application dismissed

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA),cl 64, cl 67
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 31(1)
Town of Cambridge Local Planning Scheme No 1, cl 5(c)(i), cl 5, cl 5(c)(ii), cl12,cl17, cl 29, Pt 4, cl 48, Sch 1

Result:

Application dismissed and decision of respondent affirmed

Summary of Tribunal's decision:

In August 2018 an application was made to the respondent seeking approval for the development of a mechanical workshop and car wash at No 59 (Lot 423) Marlow Street, Wembley. The application was refused by the respondent and the applicants applied to the Tribunal for a review of that decision.

The issues before the Tribunal in the proceeding were:

Is the proposed mechanical workshop a permissible land use?

Is the proposed development of a car wash an appropriate land use?
Is the proposed development of a mechanical workshop an appropriate land use?
Is the proposed layout and built form consistent with the intended character of the centre?

The Tribunal found that the mechanical workshop constituted a 'Light Industry' which could be considered in the Local Centre Zone.
However while the Tribunal found that the car wash could be considered as meeting the day-to-day needs of local residents the mechanical workshop could not. This was due to the fact that such facilities are used infrequently and tend to service a fairly broad catchment. For these reasons the Tribunal concluded that while the car wash was an acceptable use on the site the mechanical workshop was not.
On this basis the Tribunal found there was no sound basis to depart from the policy which required uses to meet the day-to-day needs of local residents and the application should be dismissed.

Category: B

Representation:

Counsel:

Applicants	:	Mr J Skinner
Respondent	:	Mr CA Slarke

Solicitors:

Applicants	:	LSV Borrello Lawyers
Respondent	:	McLeods

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

Adbooth Pty Ltd and City of Perth [No 2] [2007] WASAT 76
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353
Homebase Management Pty Ltd and City of Subiaco [2016] WASAT 139
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR(WA) 119
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
O'Connor and Town of Victoria Park [2005] WASAT 161
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 28 August 2018 the applicants applied to the respondent (Council) seeking approval to develop a mechanical workshop and car wash at No 59 (Lot 423) Marlow Street, Wembley.
The application was advertised and the respondent received 128 submissions of which 127 objected to the development.
Amended plans and further information were provided by the applicants in October and November 2018.
On 11 December 2018 the application was considered by the Development Committee of the respondent and refused for the following reasons:
1.The proposed development does not satisfy Provision 1, Clause 1.2 and Provision 2 of the Town's Local Planning Policy 4.1 Design of Non-Residential Development, as it is considered it will have an adverse impact on the residential amenity of the locality due to the noise generation and the amount of building bulk to the abutting southern residential lot, No. 57B Marlow Street, as well as the streetscape of Marlow Street.
2.The nature of the proposed development is considered to be inconsistent with the Town's Local Planning Policy 6.4 Precinct P4: Wembley Precinct with respect to the intent of the Local Centre zone, as it will have an adverse impact on the amenity of the adjacent residential lots due to the noise generation and the amount of building bulk to the abutting southern residential lot, No. 57B Marlow Street, as well as the streetscape of Marlow Street.
3.The proposed signage for the IndustryLight (Mechanical Workshop) is inconsistent with the aims of the Town's Local Planning Policy 5.2 Advertising Signs as it will result in a proliferation of signage that will dominate the facades of the workshop building. Accordingly, the proposed signage would be in contrast with the relatively limited scale of existing signage in the streetscape, and thus is considered that it will adversely impact the amenity of the locality.
4.Having due consideration of subclauses 67 (m) and (n) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the development is not considered compatible with its setting on the basis of the extent of signage proposed, noise generation and the amount of building bulk associated with the development, with those components likely to have a detrimental impact on the amenity of the immediate area.
On 17 December 2018 the applicants made an application to the Tribunal seeking a review of that decision.
An issue arose in regard to access onto Grantham Street. Grantham Street is a Category 2 'Other Regional Road'. While the Department of Planning Lands and Heritage did not support access to Grantham Street the respondent was willing to consider left-out exitonly access to Grantham Street. The application was therefore required to be determined under the Metropolitan Region Scheme (MRS) by the Western Australian Planning Commission (WAPC).
On 5 February 2019 the WAPC approved the proposed development subject to the following conditions:
1.The proposed development is to comply in all respects with the submitted plans datestamped 18 of January 2019 (attached) subject to any modifications as required by the conditions of approval.
2.The development approval is valid for two years from the date of this letter. If the subject development is not substantially commenced within a two year period, the approval shall lapse and be of no further effect.
3.The proposed egress point from Lot 423 Grantham Street is to be signposted indicating leftout turning movements only, to the specification of the Town of Cambridge and to the satisfaction of the Western Australian Planning Commission.
4.Suitable arrangements been made for the relocation of the existing bus stop located within the Grantham Street road reserve at the full cost of the applicant to the specification of the Public Transport Authority and satisfaction of the West Australian Planning Commission.
A mediation was held on 12 February 2019 which resulted in amended plans and a revised acoustic report.
Subsequently and pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent was invited to reconsider its decision.
At the Development Committee of the Council held on 19 March 2019 the respondent refused the application for the following reasons:
1.The proposal is not considered to be consistent with orderly and proper planning as referenced by sub-clause 67(b) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 and is considered to have a detrimental impact on the surrounding residential developments.
2.Council continues to oppose the application because it is considered to be inconsistent with the objectives and the intent of Local Planning Policy 6.4 - Precinct 4: Wembley Precinct for the Local Centre Zone with respect to the nature of the Motor Vehicle Wash use. The Policy anticipates 'The existing range of local shopping and community facilities will be consolidated within this area to serve the day to day needs of the local residents.' The 24/7 car wash is not considered to meet this criteria nor the amenity requirements of clause 67 of Schedule 2 of the Planning and Development (Local Planning Scheme) Regulations 2015 and, as such, is opposed by Council.
3.The proposal has failed to demonstrate that it is consistent with Point 3 of the Statement of Intent for the Local Centre zone of Local Planning Policy 6.4 - Precinct 4: Wembley Precinct; which reads 'Careful control will be exercised over the nature of any uses proposed and their design and site layout to ensure minimal impact on any adjacent residential development. Additionally, adequate car parking must be provided to ensure that retail parking does not encroach into residential streets'.

This is the decision the subject of the current review.

Site and locality

The subject site is No 59 (Lot 423) Marlow Street, Wembley. It falls within the Wembley Precinct and is located on the south-west corner of the intersection of Marlow Street and Grantham Street. The site is currently vacant as the service station which previously occupied the site was demolished some time ago.
The site immediately to the west is occupied by the Wembley Jellybeans Childcare Centre. The site immediately to the south in Marlow Street contains a recently constructed two-storey single dwelling. The property diagonally to the south-west contains a single storey residence.
The remaining three corners of the Marlow Street and Grantham Street intersection contain existing commercial units which include a veterinary clinic, picture framers, a hairdresser, offices, a beauty salon, plumbing and gas services, and pool equipment supply and services.
With the exception of the building on the north-west corner which contains a pool spa centre and offices, the remaining commercial buildings are all single storey.
The broader locality generally comprises a mix of single and twostorey residential premises.

The proposed development

The proposed development comprises two businesses. The first is an Auto Masters mechanical workshop located on the eastern section of the subject site comprising a single storey building built up to the Grantham Street boundary and occupied by two work bays, waiting bays and an office and waiting area.
This building is approximately 6.5 metres high and has a street canopy on to both Marlow Street and Grantham Streets. Signage is proposed both centrally on the northern elevation facing Grantham Street and on the eastern elevation facing Marlow Street.
The second business comprises a self-service car wash located centrally on the western section of the subject site which provides three car wash bays. This building is somewhat lower than the Auto Masters workshop and setback approximately 6.85 metres from the Grantham Street boundary. Signage is proposed on the northern face of this structure facing Grantham Street.
While the development is put forward as an integrated proposal, the intention is that these two businesses are to operate independently.
The southern portion of the subject site is taken up with car parking and a vacuum bay at the western end. The car parking and vacuum bay will be roofed with acoustic insulation to the underside. In addition it is proposed that a masonry wall will be constructed on both the western and southern boundaries of the site.
Access to the subject site will be provided both from Marlow Street, for both access and egress, and an exit only crossover into Grantham Street at the western end of the site

The planning framework

The subject site is zoned 'Urban' under the MRS and is zoned 'Local Centre' under the Town of Cambridge Local Planning Scheme No 1 (LPS 1).
Clause 5 of LPS 1 sets outs the objectives and intentions of the Scheme and includes:
…
c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which;
(i)recognises the individual character and needs of localities within the scheme Area; and
(ii)can respond readily to change[.]
Clause 17 of LPS 1 states that the Scheme Area is divided into the precincts set out in the Precinct Planning Policies contained in the Council's Policy Manual.
Clause 48 of LPS 1 provides powers for the respondent to make planning policies.
The subject site falls within the Wembley Precinct. Local Planning Policy 6.4: Precinct 4: Wembley (LPP 6.4 or Precinct Policy) establishes the following statement of intent for the Local Centre Zone:
•The existing range of local shopping and community facilities will be consolidated within these areas to serve the day to day needs of the local residents.
•Any new development should be built up to the street boundary and be of a height and scale similar to the majority of existing buildings. Continuous shop fronts and weather protection over the footpath for pedestrians should be provided.
•Careful control will be exercised over the nature of any uses proposed and their design and site layout to ensure minimal impact on any adjacent residential development. Additionally, adequate car parking must be provided to ensure that retail parking does not encroach into residential streets.
Clause 29 of LPS 1 requires that a person shall not begin or continue to display an advertisement, other than an existing or exempted advertisement, without having first applied for and having obtained planning approval under Pt 4 of LPS 1.
Schedule 1 to LPS 1 defines 'industry' as follows:
industry: means the carrying out of any process in the course of trade or business for gain, for and incidental to one or more of the following:-
(a)the winning, processing or treatment of minerals;
(b)the making, altering, repairing, or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or the breaking up or demolition of any article or part of an article;
(c)the generation of electricity or the production of gas; and
(d)the manufacture of edible goods;
and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of, or the incidental sale of goods resulting from the process, and the use of land for the amenity of persons engaged in the process, but does not include:-
(a)the carrying out of agriculture;
(b)on-site work on buildings or land; and
(c)in the case of edible goods the preparation of food for retail sale from the premises.
Schedule 1 to LPS 1 defines 'industry-light' as follows:
industry - light: means an industry:-
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water or other waste products; and
(b)the establishment of which will not, or the conduct of which does not, impose an undue load on any existing or proposed service for the supply or provision of water, gas, electricity, sewerage facilities, or any other like services.
Under the provisions of cl 12 of LPS 1 'industry-light' is a 'D' use; that is the use is not permitted unless the Council has exercised its discretion by granting planning approval.
Schedule 1 to LPS 1 defines 'motor vehicle wash' as follows:
motor vehicle wash: means any land or buildings where vehicles are washed and cleaned by or primarily by mechanical means.
Under the provisions of cl 12 of LPS 1 'motor vehicle wash' is an 'A' use; that is the use is not permitted unless the Council has exercised its discretion by granting planning approval after giving notice in accordance with cl 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations).
In addition the respondent has adopted the following policies:
•Local Planning Policy 4.1: Design of NonResidential Development;
•Local Planning Policy 5.2: Advertising Signs; and
•Local Planning Policy 6.4 Precinct P4: Wembley.
Clause 67 of the LPS Regulations sets out matters to which local government, or the Tribunal on review, is to have due regard in considering an application for development approval. In this review the following matters are relevant to the development the subject of the application:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
…
(y)any submissions received on the application[.]
The WAPC has adopted State Planning Policy 4.2: Activity Centres for Perth and Peel (SPP 4.2). The main purpose of this policy is to specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres in Perth and Peel.

Issues

The respondent set out its issues in its Statement of Issues Facts and Contentions dated 27 March 2019 as follows:
1.Is the proposed development of a car wash an appropriate land use?
2.Is the proposed development of a mechanical workshop an appropriate land use?
3.Is the proposed layout and built form consistent with the intended character of the centre?
The applicants did not challenge the issues put forward by the respondent.
However, on 11 April 2019 the respondent sought to file an amended Statement of Issues Facts and Contentions. This included a further issue:
Is the proposed mechanical workshop a permissible land use?
This was based on a contention that the 'mechanical workshop' falls within the use class of 'Industry-General' rather than 'Industry-Light' and is not permitted by LPS 1.

While the applicants initially objected to the revised Statement of Issues Facts and Contentions following discussion with the parties the applicants accepted that the additional issue would be considered by the Tribunal in these proceedings.
On this basis the Tribunal will deal initially with the use classification of the proposed mechanical workshop. Following that consideration the Tribunal will then deal with the appropriate land use questions set out in issues 1 and 2 before finally addressing the proposed layout and built form question set out in issue 3.

Is the mechanical workshop an 'Industry-General' use?

The use class 'Industry Light' is a land use that must be classified according to its context. That is, in order to be a light industry the Tribunal must reach a view that the use (being the processes carried on, the machinery used and the commodities entering and exiting the relevant premises) will not have an adverse impact on the particular locality. That necessarily involves the Tribunal, as part of the land use classification exercise, evaluating the proposed use in the context of the relevant locality to ascertain if there will be an adverse impact. The scope of uses that may be properly classified as light industry will depend, in part, on the relevant locality. What may be properly classified as a light industry in one locality may not be so classified in another.
The witness statement of Mr Sean Fairfoul, the expert planner called by the respondent, included the following statement:
… In my view the noise emissions from the impact wrench will adversely affect the amenity of the locality through the level and nature of the noise received on Marlow Street itself, and at the residential premises at 57B Marlow Street, irrespective of whether or not the noise is compliant with the Noise Regulations.
and
As such I am of the view that the proposal, in this instance, does not comply with the first part of the definition, as the machinery used will adversely affect the amenity of the locality. As such the use should not be defined as 'Industry-Light'.
It is not contested that the mechanical workshop constitutes an 'industry' as set out in Sch 1 of LPS 1.
However, the respondent submits:
The proposed mechanical workshop is not an industry-light use, as the process carried on and the machinery used in a mechanical workshop will case [sic] injury to or adversely affect the amenity of the locality by reason of the emission of noise and, potentially, smell or fumes.
and
In determining whether the mechanical workshop industry will cause injury to or adversely affect the amenity of the locality, measures employed to mitigate the impacts of the process are not relevant GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353, at [37] to [48].
The GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353 (GMF) decision involved the proposed development of a waste transfer and recycling station, which included a crushing facility, on a rural property. There were, in that case, eight residences within 650 metres of the proposed operation.
In GMF at [45] the Tribunal found that:
… the processes carried on in an industry do not include measures to mitigate the impacts of the processes[.]
In that decision the Tribunal found at [46] that 'the crushing of waste building or demolition materials, will cause injury to and will adversely affect the amenity of the locality by reason of dust and noise'.
This conclusion was based on the following findings at [46] and [47]:
46.The impacts identified in the EPA Guidance [Guidance for the Assessment of Environmental Factors Separation Distances Between Industrial and Sensitive Land Uses], the absence of a scientific study and the fact that dust mitigation measured are proposed demonstrate that the proposed industry will cause injury to and will adversely affect the amenity of the locality by reason of dust.
47.The proposed industry will also plainly cause injury to and will adversely affect the amenity of the locality by reason of noise. … significant physical works are proposed in the form of earthen bunds in an effort to mitigate noise. … these significant works are not sufficient, in themselves, to achieve compliance with the Environmental Protection (Noise) Regulations 1997 (WA).
It should be noted that the with the exception of the inclusion of 'electrical interference' and 'projected' rather than 'proposed' service in the definition of 'Industry-Light' in LPS 1 the definitions of both 'Industry-General' and 'Industry-Light' are consistent with those of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 considered by the Tribunal in GMF.
Given the fact that the respondent did not seek to ventilate the issues of smell or fumes the only factor at issue in these proceeding is the question of noise.
In this context the question for the Tribunal is whether 'the machinery used' in the mechanical workshop with the ameliorative measures removed will 'adversely affect the amenity of the locality by reason of … noise'.
In this regard the only machinery specifically identified in the evidence before the Tribunal was the impact wrench which the acoustic experts agreed had a source sound power noise level of 100 decibals (dB).
The planning experts considered, and the Tribunal agrees, that a radius of approximately 50 metres from the subject site was a reasonable description of the immediate locality (ts 111, 17 April 2019). There was no evidence from the acoustic experts of noise impacts beyond this immediate locality.
The noise assessment modelled noise levels with the workshop roller doors open. The acoustic experts identified the ameliorative measures associated with the wrench comprising the roof insulation to the workshop area, and the canopy over the carparks. The proposed wall will not substantially ameliorate the noise level of the wrench given the existing site to the south has a 2.4 metre wall on the northern boundary which would block the noise to the ground floor of that premises (ts 82, 83 and 73, 16 April 2019).
It was agreed by the acoustic experts that without the ameliorative measures the noise of the wrench would impact the upper floor of the residence at 57B Marlow Street. This level they agreed would be a base level of 60 dB which, with a 10 dB adjustment for impulsiveness, would comprise 70 dB. Given that the assigned level is 72 dB the noise associated with the wrench would comply with the noise regulations. It was also agreed that a level of 60 dB as a guide was reasonably equivalent to a normal conversation level (ts 73, 16 April 2019).
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346 , the Tribunal, at [37], referred to the test of impact on amenity as articulated in Tempora PtyLtd v Shire of Kalamunda (1994) 10 SR WA 296 (Tempora) at [304]:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
The existing amenity of the immediate locality which the planning experts agree comprises a radius of approximately 50 metres from the subject site is affected by the presence of Grantham Street, an 'Other Regional Road', with a traffic flow of approximately 15,000 vehicles per day. It is also influenced by the fact that the properties on each of the four corners of the Grantham Road and Marlow Street intersection are zoned 'Local Centre'. There is no evidence before the Tribunal which suggests the impacts of the proposed development would extend beyond the immediate locality.
While the Tribunal accepts the principles set out in GMF it finds that for the reasons set out below the current matter is to be distinguished from the conclusions in that matter and the mechanical workshop is an 'Industry-Light' use under the provisions of LPS 1.
•In GMF the proposed development did not meet the generic buffer required in the Guidance for the Assessment of Environmental Factors Separation Distances Between Industrial and Sensitive Land Uses; no site specific study was provided; and there was no evidence that the proposed development would comply with the relevant policy provisions. In addition there was in that case clear evidence that the proposed development would not comply with the statutory noise regulations.
•The evidence in these proceeding was that without the ameliorative measures while the noise levels on the upper floor of 57B Marlow Street would increase they would still comply with the statutory noise regulations.
•Given that 57B Marlow Street is located next to a site which is zoned for commercial activities and which fronts Grantham Street, a significant regional road, it is unreasonable for 57B Marlow Street to expect a pristine residential amenity: St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [57]. If the anticipated noise levels from a proposed use were predicted to exceed the noise regulations, that would be a basis to conclude that a use would have an adverse impact on the amenity of the locality such that the use could not then be classified as 'Industry-Light'.
•Whilst the Tribunal has found that compliance with the noise regulations does not necessarily mean that noise does not constitute an adverse impact (see for example Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 (Land Alliance) at [39]) in the context of 57B Marlow Street, where some level of non-residential noise must be reasonably expected, the Tribunal considers that the noise regulations are the appropriate standard in order to evaluate whether a proposed use could be said to have an adverse impact on the amenity of the locality as a result of noise for the purposes of land use classification.
The Tribunal therefore finds that the use of the land for a mechanical workshop will not adversely affect the amenity of the locality by reason of noise because the noise regulations will not be exceeded.
In making these findings the Tribunal notes the following:
•The existing amenity of the immediate locality is impacted by both the traffic noise associated with Grantham Street and the properties zoned as 'LocalCentre';
•Ms Turner the resident of 57B Marlow Street gave evidence that she had constructed a 2.5 metre brick wall on the northern boundary of her property for noise attenuation as she knew the subject site was going to be for a commercial use (ts 36, 16 April 2019);
•The only relevant sensitive premises in the immediate locality affected by the wrench is the upper floor of 57BMarlow Street;
•The noise at this receiver complies with the relevant noise regulations without measures to mitigate the impacts;
•The use of the impact wrench would be restricted to the hours of 7 am to 6 pm weekdays and 8 am to noon on Saturdays; and
•While Ms Turner gave evidence of her concerns with the proposed development these concerns were restricted to the operation of the car wash and did not include any identified concerns with the mechanical workshop.

Is a car wash and a mechanical workshop an appropriate land use?

In assessing these issues the initial relevant consideration is set out in the Precinct Policy.
Atypically LPS 1 does not include objectives for each of the zones designated by the Scheme. However, cl 17 of the Scheme makes explicit reference to the fact that the Scheme Area is divided into the precincts set out in the Precinct Planning Policies and makes specific reference to the Wembley Precinct.
Clause 12 of LPS 1 provides in the Zoning Table a range of uses which can be considered within the 'Local Centre' Zone. These include a number of 'A' and 'D' uses; that is uses which require the exercise of discretion by the respondent, or the Tribunal in its shoes.
While the Precinct Policy is not formally incorporated as part of LPS 1, it is clearly intended to guide the exercise of discretion in assessing appropriate uses within the 'Local Centre' zones within the Wembley Precinct.
In this context the Tribunal finds that the statement of intent included in the Precinct Policy is particularly relevant to the issues under review in this proceeding.
The Precinct Policy includes the following statement of intent:
•The existing range of local shopping and community facilities will be consolidated within these areas to serve the [daytoday] needs of the local residents.
(Emphasis added)
In O'Connor and Town of Victoria Park [2005] WASAT 161 the President of the Tribunal in reviewing a previous Tribunal decision at [71] made the following observation on the interpretation of 'daytoday':
Although the Senior Member did not refer to the dictionary definition of 'day-to-day', his analysis at [44] - [45] of the reasons accords with the ordinary meaning of the term, and was correct. The adjective 'day-today' is defined in the Macquarie Dictionary (Revised Third Edition) at page 492 as 'ordinary; happening every day'. It is defined in the Australian Oxford Dictionary at page 338 as 'mundane, routine'. The Senior Member was correct in identifying the common characteristics of the indicative uses listed on Precinct Plan P12 (see [23] above) as to 'servethe needs, in a general sense, of the local population, if not every day, then as part of ordinary routine and regular activity'. Thischaracteristic is inherent in the term 'day-to-day needs'. In its context in TPS1, the term implies uses which service daily material needs.
Mr Neil Teo, the planning expert called by the applicants, argues that serving the daytoday needs of local residents:
is not limited to shops or other uses that serve only "daily" needs, as is evident from the range of uses that are permissible in the local centre zone, and also the range of existing uses in the particular local centre zone in which the Land is situated.
(Witness Statement para 81)
In addition Mr Teo argues that 'the workshop and car-wash uses serve the day to day needs of local residents in at least the same way and to same extent as the needs of local residents to' the veterinary services, the purchase of recreational goods such as golf equipment, and personal grooming uses which exist in the existing Local Centre (WitnessStatement para 87).
Mr Fairfoul argues that 'the proposed land uses, which generally comprise of servicing of motor vehicles and the washing of motor vehicles, do not provide "day-to-day" needs' (Witness Statement para 77). It is his view that 'the proposed land uses should be located in a larger centre as secondary uses or in the Mixed Business zone' (WitnessStatement para 82) and that 'the proposal would restrict the possibility of the location of convenience-based uses from locating in this centre' (Witness Statement para 83).
In dealing with the use question, both the expert planning witnesses made reference to the existing uses in the Local Centre and whether such uses could be regarded as uses that served 'day-to-day needs'. Whilerelevant, the Tribunal cannot place much weight on the existence of such uses in the exercise of discretion. This is because the Tribunal had no definitive evidence on when these uses were approved, under what provisions, or their respective hours of operation.
In regard to the car wash the planning experts agreed in the hearing that a car wash is not something used on a daily basis by a typical household (ts 134, 17 April 2019). It was accepted that there was no car wash in the immediate or broader locality (with 500 metres of the subject site) and that subject to price differentials and the product on offer people would tend to go to the closest car wash (ts 136 and 135, 17 April 2019).
Opinions on the potential frequency of use were somewhat tentative and varied from weekly to seldom.
In regard to the mechanical workshop the planning experts agreed in the hearing that such facilities would generally be used approximately every six months (ts 146, 17 April 2019). In response to a question from the Tribunal the planning experts suggested that while some people may go to the closest mechanical workshop others may well go to the dealership where the vehicle was originally purchased to get it serviced (ts 146, 17 April 2019).
It was accepted that in the area to the northwest, west and southwest of the broader locality there were no mechanical workshops.
In this regard Mr Teo suggested:
[T]he catchment could be broad. I would imagine that the issue of its absence to that west and northwest and southwest area, I'm not an economist, I'm only speculating, but I would imagine that's the very reason why the proposed uses would have a viable commercial catchment.
(ts 137, 17 April 2019)
Mr Fairfoul agreed that the catchment to the northwest, west and southwest is potentially quite broad (ts 137, 17 April 2019).
In response to a question the planning experts agreed that the car wash, to the extent that it proposes to operate 7.00 am to 8.00 pm every day including Sunday, is different in terms of its hours to all of the other existing commercial uses in the local centre (ts 114 and 115, 17 April 2019).
They also agreed that the impact wrench is by its nature an annoying noise (ts 118, 17 April 2019).
In addition the planning experts agreed that the noise of the impact wrench would adversely affect the upper floor bedroom of 57B Marlow Street. However, this was in the context of a question from counsel for the respondent which specifically excluded any ameliorative measures being in place (ts 123, 17 April 2019).
In terms of the potential amenity impacts of the proposed uses LPP6.4 contains the following statement of intent:
Careful control will be exercised over the nature of any uses proposed and their design and site layout to ensure minimal impact on any adjacent residential development[.]
(Emphasis added)
The Tribunal at [28], in Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 found that:
Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
The substantive amenity issue raised by the respondent in these proceedings is the noise impacts of the impact wrench associated with the mechanical workshop on the residential property at 57B Marlow Street.
In Land Alliance the Tribunal observed at [39] as follows:
[C]ompliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
It was agreed by the acoustic experts that without the ameliorative measures the noise of the impact wrench would impact the upper floor of the residence at 57B Marlow Street. This level they agreed would be a base level of 60 dB which, with a 10 dB adjustment for impulsiveness, would comprise 70 dB. Given that the assigned level is 72 dB the noise associated with the impact wrench would comply with the noise regulations.
However, the uncontested evidence in the Environmental Noise Assessment report was that the predicted noise level at the first floor of 57B Marlow Street during weekday operation would be 51 dB for both L_A10 and dB L_max. This is well below the assigned level of 72 dB. In addition on the pavement of Marlow Street adjoining only the parking area of the subject site the level would be 57 dB.
Evidence was provided that noise such as vehicle motors running and people talking in the parking area, which are not matters which are required to be assessed under the noise regulations may cause adverse amenity impacts. Any such impacts are likely to be restricted to out of hours operations. In terms of the current review while the mechanical workshop is restricted in terms of its hours of operation the hours of the car wash may be of concern.

In terms of the '[daytoday]' use requirement set out in LPP 6.4 the Tribunal finds that the car wash is an acceptable use on the site. Whileactual use of such a facility may vary widely the Tribunal finds that it can reasonably be considered as part of ordinary routine and regular activity. Furthermore evidence suggests that, other things being equal, people tend to utilise such facilities in reasonable proximity and therefore while its use will clearly not be restricted to local residents it would provide a service to those residents.
In terms of the '[daytoday]' use requirement set out in LPP 6.4 the Tribunal finds that the mechanical workshop cannot be considered a daytoday need of the local residents for the following reasons:
•While there can be no rigid principles of what is a daytoday use, the Tribunal finds that the frequency of use of such a facility generally approximately every six months cannot reasonably be considered as part of an ordinary routine and regular activity;
•Furthermore the limited evidence before the Tribunal suggested that such operations draw on a far wider catchment suggesting that the local residents would be likely to constitute a more limited component of the customers utilising the facility; and
•On that basis the Tribunal finds that the mechanical workshop is not an appropriate use on the subject site.
In terms of the potential amenity impacts of the car wash the Tribunal accepts that the proposed hours of operation are different to all of the other existing commercial uses in the local centre and while this may not be a reason warranting refusal of the use the question of hours of operation would require critical scrutiny should an approval beconsidered.
In terms of the potential amenity impacts of the mechanical workshop the Tribunal finds that based on the evidence of the noise experts, and particularly in the context of the extensive ameliorative measures proposed the extent of the impact on a part of the locality or more particularly on the upper floor of the residence at 57B Marlow Street is acceptable and complies with the relevant provisions of LPP 6.4.
In his witness statement Mr Fairfoul drew on SPP 4.2. The Tribunal has some difficulties with this approach.
In Homebase Management Pty Ltd and City of Subiaco [2016] WASAT 139 the Tribunal observed at [48]:
The issue of the role of SPP 4.2 was addressed by the Tribunal in Castella Pty Ltd and Quebec Nominees Pty Ltd and City of Canning [2012] WASAT 47 (Castella) at[41] - [42] as follows:
Mr Allerding gave evidence that the proposal was consistent with the objectives of Directions 2031 and SPP 4.2 in terms of the promotion of employment opportunities and the encouragement of diverse land uses. It was his opinion that these broad level documents establish the objectives and principles to be articulated by local government through detailed standards and requirements in the local planning framework, and as such 'are not of direct relevance or application to the consideration of the proposed development or planning applications in general'.
The Tribunal agrees with Mr Allerding in that these strategic documents contain broad strategic objectives, principles and provisions which would not be expected to be applied to each individual development but to entire areas, and in this case, the Cannington strategic metropolitan centre[.]
In any event the provisions addressing local centres in SPP 4.2 is extremely limited. More importantly in the circumstances of the current review the respondent has adopted a reasonably comprehensive set of local planning policies which provide detailed provisions to govern the assessment of proposed development in the 'Local Centre' Zone in the Wembley Precinct. In this content the Tribunal finds that SPP 4.2 should be accorded little weight in the current review.

Is the layout and built form consistent with the intended character of the centre?

In assessing the layout and built form of the proposed development the relevant provisions of the planning framework are set out in the Precinct Policy. These provisions include the following statement of intent:
Any new development should be built up to the street boundary and be of a height and scale similar to the majority of existing buildings. Continuous shop fronts and weather protection over the footpath for pedestrians should be provided.
In addition the policy includes development standards which address plot ratio, setbacks, verandahs/awnings, pedestrian access and residential density.
The provision for setbacks reads as follows:
Setbacks:
Buildings shall have nil street and side setbacks. Buildings shall face the street; blank walls are not acceptable.
Further to these requirements Policy 4.1: Design of Nonresidential Development includes the provision at cl 2:
The design of non-residential development and its presentation to the street (eg. Windows, awnings, access points), shall be sympathetic to the existing streetscape.
The substantive issue raised by Mr Fairfoul is that:
The façade to Grantham Street, being the primary street, is largely comprised of a blank wall and does not provide pedestrian access, and lacks sufficient glazing to allow for integration with the street.
(Witness Statement para 106)
Mr Fairfoul concludes:
Given the above, I am of the view that the proposed Grantham Street façade is not a good design outcome and is inconsistent with the intended streetscape of the zone, and therefore is not entirely consistent with LPP 4.1 and LPP 6.4.
It is clear that the proposed development is built up to the street boundaries, has a height and scale not dissimilar to the majority of existing buildings in the local centre and other than in the area in front of the car wash provides weather protection over the footpaths.
The Grantham Street façade contains a reasonably large glazed section on the eastern end with three vertical and four horizontal windows distributed across the remainder of the elevation. While this outcome may not be regarded as optimum it reflects a condition not widely at variance with a number of other premises in the local centre. In addition the fact that all customers will arrive and depart by vehicle and the parking area is located at the rear of the workshop suggest that an entry off Grantham Street would provide operational difficulties for both management and customers. Neither of these concerns represent a basis upon which the development could reasonably be refused.

Conclusions

Based on the evidence before it in this proceeding the Tribunal has made the following findings:
•Is the mechanical workshop an 'Industry-General' use? No;
•Is the car wash an appropriate use on the site? Subject to a critical review of the hours of operation, Yes;
•Is the mechanical workshop an appropriate use on the site? No; and
•Is the layout and built form consistent with the intended character of the centre? In broad terms, Yes.
In closing counsel for the respondent submitted that:
If the workshop use is prohibited, we say that should mean that the car wash is refused in the exercise of discretion because the site is designed specifically to accommodate these two activities which will operate, effectively in tandem[.]
(ts 207, 17 April 2019)
The Tribunal accepts this submission for the reasons that the car wash relies for its access on the crossover and carpark of the mechanical workshop; the applicants made no submissions challenging the respondent's counsel on this point in closing; and, more importantly, the approval of the car wash in the absence of the proposed mechanical workshop would effectively constitute a substantially different proposal (Pacesetter Homes PtyLtd & Anor v State Planning Commission (1993) 84 LGERA 71 at [85], Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 at [14]).
In Adbooth Pty Ltd and City of Perth [No 2] [2007] WASAT 76 the Tribunal made the following observations at [208] [209]:
208.[T]he Signs Policy is a fundamental element in or a focal point of the decision-making process: Fryer and City of Subiaco [2006] WASAT 199 at[56] citing Zhang v Canterbury City Council (2001) 115 LGERA 373 at [75].
209.As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. However, 'the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'[.]
While the Precinct Policy is not formally incorporated as part of LPS 1 the policy, and more particularly the statement of intent included in the policy, is clearly intended to guide the exercise of discretion in assessing appropriate uses within the 'Local Centre' Zones within the Wembley Precinct.
Based on the findings set out above there is no sound basis to depart from these provisions. Therefore, given the evidence before the Tribunal in this proceeding, the Precinct Policy should be applied, the application for review dismissed, and the decision of the respondent to refuse approval for development of a mechanical workshop and car wash at No 59 (Lot 423) Marlow Street, Wembley affirmed.

Orders

For the reasons set out above:
1.The application for review is dismissed
2.The decision of the respondent to refuse approval for development of a mechanical workshop and car wash at No 59 (Lot 423) Marlow Street, Wembley is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR P DE VILLIERS, MEMBER
16 MAY 2019