Waters and Anor and Town of Vincent
[2007] WASAT 128
•25 MAY 2007
WATERS & ANOR and TOWN OF VINCENT [2007] WASAT 128
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 128 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:308/2006 | 12 DECEMBER 2006 16 JANUARY 2007 | |
| Coram: | MR P McNAB (MEMBER) | 25/05/07 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The review is allowed and conditional planning approval given | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL WATERS BACKPACK PTY LTD TOWN OF VINCENT |
Catchwords: | Town planning Development application Backpackers lodge Commercial zoning Lodging house Two adjoining lots One backpacker operation proposed Change of use for one of the lots Increase in patron numbers proposed Whether intensification of patronage use or development Reduction from 80 patrons as proposed Refusal by Council principally on amenity grounds Neighbours' objections Alleged problems with noise, antisocial behaviour and parking Vibrant innercity location Difficulty of ascribing antisocial behaviour to patrons of lodge Generalised nature of neighbours' complaints Whether neighbours "oversensitive" Consistency with precinct and commercial/residential policies Whether "residential" in nature Calculation of cashinlieu contribution for parking Whether reduction in parking contribution appropriate because of alleged low vehicle use by international backpackers Policies favouring reuse of buildings Whether residence "reused" Importance of management plan Management plan still to be negotiated Whether approval should be made personal to applicant Duration of approval Application for review allowed Conditional approval given with five year term and 65 patrons maximum |
Legislation: | Health Act 1911 (WA) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 242 Town of Vincent Health Local Law 2004, cl 146, Div 3 Town of Vincent Town Planning Scheme No 1, cl 27, cl 38(5) |
Case References: | Armato v Hepburn Shire [2007] VCAT 603 Austgold Holding Pty Ltd and Town of Vincent [2007] WASAT 70 Burnett and Town of Cambridge [2006] WASAT 29 Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374 Randall and Town of Vincent [2005] WASAT 129 Stein & Anor and Shire of Chapman Valley [2006] WASAT 105 Stevpan Nominees Pty Ltd v Port Phillip CC & Ors [2000] VCAT 1478 Van New International Pty Limited v Newcastle City Council [2007] NSWLEC 28 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and in substitution for that decision there will be a decision granting planning approval under TPS 1 in respect of the subject land in terms of the development application for a period of five years, upon the following conditions:,(a) all external fixtures, such as television antennas (of a non standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;,(b) any new street/front wall, fence and gate between the Money Street boundary and the main building, including along the side boundaries within this front setback area, shall comply with the following:,(i) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;,(ii) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;,(iii) the maximum width, depth and diameter of posts and piers being 250 millimetres;,(iv) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and,(v) the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;,(c) all signage that does not comply with the Town of Vincent'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;,(d) prior to the issue of a Building Licence, or first occupation of the development, whichever occurs first, revised plans shall be submitted and approved demonstrating the following;,(i) adequate landscaping to screen communal spaces from adjoining properties;,(ii) communal spaces to be sufficiently equipped with seating and tables; and,(iii) the provision of a weather protected pedestrian access structure connecting both the existing and proposed lodging houses on the subject properties.,The revised plans shall not result in any greater variation to the requirements of the Town of Vincent's Policies. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s);,(e) the applicant/owner shall pay a cash in lieu contribution for the equivalent value of five car parking spaces, based on the cost of $2600 per bay as set out in the Town of Vincent's 2006/2007 Budget. Alternatively, if the car parking shortfall is reduced as a result of a greater number of car bays being provided, the cash in lieu amount can be reduced to reflect the new changes in car parking requirements;,(f) the lodging house at Nos 37-39 (Lot 93) and Nos 41-43 (Lot 94) Money Street, Perth shall accommodate a maximum of 65 lodgers at any one time;,(g) a detailed management plan that addresses the control of noise, traffic, car parking, litter and anti social behaviour (to reasonable levels) associated with the development shall be developed, and thereafter implemented and maintained;,(h) prior to the issue of a Building Licence or first occupation of the development, whichever occurs first:,(i) the subject land shall be amalgamated into one lot on Certificate of Title; or alternatively, the owner(s) shall enter into a legal agreement with and lodge an appropriate assurance bond/bank guarantee to the satisfaction of the Town of Vincent, which is secured by a caveat on the Certificate(s) of Title of the subject land, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent, undertaking to amalgamate the subject land into one lot within six months of the issue of the subject Building Licence or first occupation of the development, whichever occurs first. All costs associated with this condition shall be borne by the applicant/owner(s); or,(ii) the owner(s) shall enter into a legal agreement and lodge an appropriate assurance bond/bank guarantee, with or register a grant of easement on the subject land in favour of the Town of Vincent and to its satisfaction, to provide rights of access to/from and use of a minimum five car parking bays on Nos 41-43 (Lot 94) Money Street, Perth and the weather protected pedestrian access structure connecting both the existing and proposed lodging houses on the subject properties. The subject access and five car parking bays and structure are to be provided at no costs for use by the employees, customers and visitors of the lodging house at Nos 37-39 (Lot 93) Money Street, Perth. The legal agreement shall be secured by a caveat while the grant of easement shall be registered on the Certificate(s) of Title of the subject land. The legal documentation shall be prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent. All costs associated with this condition shall be borne by the applicant/owner(s);,(i) the lodgers may stay at the subject lodging house for a maximum period of three consecutive months; and,(j) a lodging housekeeper or manager shall be resident on the subject properties at all times/reside continuously in the lodging houses in accordance with Div 3 - Management and Care, cl 146 of the Town of Vincent Health Local Law 2004.,3. The parties are directed to negotiate with each other in good faith to produce the final management plan referred to in the conditions attaching to the planning approval, being a plan not inconsistent with the reasons for decision of the Tribunal, and to be filed by the respondent within 28 days of the date of this decision.,4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of order 3. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WATERS & ANOR and TOWN OF VINCENT [2007] WASAT 128 MEMBER : MR P McNAB (MEMBER) HEARD : 12 DECEMBER 2006
- 16 JANUARY 2007
- BACKPACK PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Backpackers lodge - Commercial zoning - Lodging house - Two adjoining lots - One backpacker operation proposed - Change of use for one of the lots - Increase in patron numbers proposed - Whether intensification of patronage use or development - Reduction from 80 patrons as proposed - Refusal by Council principally on amenity grounds - Neighbours' objections - Alleged problems with noise, antisocial behaviour and parking - Vibrant innercity location - Difficulty of ascribing antisocial behaviour to patrons of lodge - Generalised nature of neighbours' complaints - Whether neighbours "oversensitive" - Consistency with precinct
(Page 2)
and commercial/residential policies - Whether "residential" in nature - Calculation of cashinlieu contribution for parking - Whether reduction in parking contribution appropriate because of alleged low vehicle use by international backpackers - Policies favouring reuse of buildings - Whether residence "reused" - Importance of management plan - Management plan still to be negotiated - Whether approval should be made personal to applicant - Duration of approval - Application for review allowed - Conditional approval given with five year term and 65 patrons maximum
Legislation:
Health Act 1911 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242
Town of Vincent Health Local Law 2004, cl 146, Div 3
Town of Vincent Town Planning Scheme No 1, cl 27, cl 38(5)
Result:
The review is allowed and conditional planning approval given
Category: B
Representation:
Counsel:
Applicant : Mr J Skinner
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Jackson MacDonald
Respondent : SJB Town Planning & Urban Design (Town Planners)
Case(s) referred to in decision(s):
Armato v Hepburn Shire [2007] VCAT 603
Austgold Holding Pty Ltd and Town of Vincent [2007] WASAT 70
(Page 3)
Burnett and Town of Cambridge [2006] WASAT 29
Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374
Randall and Town of Vincent [2005] WASAT 129
Stein & Anor and Shire of Chapman Valley [2006] WASAT 105
Stevpan Nominees Pty Ltd v Port Phillip CC & Ors [2000] VCAT 1478
Van New International Pty Limited v Newcastle City Council [2007] NSWLEC 28
(Page 4)
Summary of Tribunal's decision
1 This review concerned a change of use for a lot adjoining an existing backpackers lodge (from a single residential house to a lodging house) and an increase in the number of patrons to a maximum of 80 persons in respect of the combined backpacker operation over both lots. The land was zoned "Commercial".
2 The respondent Town of Vincent had refused planning approval on the basis of amenity concerns, neighbours' objections and alleged inconsistency with various planning policies. The Tribunal received extensive evidence of the neighbours' concerns regarding alleged anti-social behaviour, noise and parking problems.
3 The Tribunal did not accept that the existing backpacker operation could be blamed for, or necessarily associated with, these problems. The lodge was located near Northbridge, which exhibited signs of a vibrant 10 pm to 5 am "culture" that already impacted upon amenity. The lodge's clientele were mostly international backpackers. In recent times, very few complaints had been received about the lodge's patrons' behaviour. In the Tribunal's view, good management and adequate supervision were the key to minimising the impact of the lodge on the neighbours. Further work was required by the parties to finalise an adequate management plan.
4 The Tribunal did not accede to a maximum number of 80 patrons, as was proposed by the applicant. The Tribunal concluded that an approximate doubling of the maximum already permitted for the existing operation on the principal lot (Lot 94) was reasonable and appropriate. This would give a maximum of 65 patrons.
5 The Tribunal did not find any inconsistency with the proposed development and the planning framework. The Tribunal did, however, reject the applicant's arguments that no cash-in-lieu contribution whatever should be required for a parking shortfall. It reduced the amount required from an amount representing a shortfall of just under eight bays to five bays.
6 Planning approval was given by the Tribunal for a period of five years. This would give the applicant reasonable business certainty, but would also permit a review of the operation, and consideration of the commercial/residential interface and related amenity issues.
(Page 5)
7 The application for review was therefore allowed and conditional approval was given by the Tribunal.
Introduction
8 This application for review was made in September 2006 by Mr Michael Waters and his related company (applicant), in relation to a decision of the Town of Vincent (respondent) to refuse an application for a change of use from a single house (residential) to a lodging house at Nos 37-39 (Lot 93) Money Street, Perth (subject land).
9 The proposed change of use on Lot 93 also contemplated an increase in the number of lodgers from a base figure of 32 on the adjoining Lot 94 at 41-43 Money Street, to a total of 80 lodgers on Lot 93 and Lot 94 combined. Lot 94 is an existing backpackers lodge (that is, a lodging house).
10 The main reasons for refusal given by the Town of Vincent were as follows:
1) The negative impact on land amenity;
2) A consideration of the objections received from neighbours;
3) Conflict with the objectives of the Town's policies, particularly those relating to the non-residential/residential interface; and
4) Insufficient (internal) facilities in the proposed lodging house.
11 (These matters will be expanded and elaborated upon below.)
12 The matter was heard in December 2006 and January 2007 and final submissions were received in February 2007.
13 The Tribunal turns first to a more detailed and formal description of the subject land and its streetscape context.
Subject land and streetscape
14 The subject land comprises, as has been indicated, Lot 93 and Lot 94 Money Street, Perth. Lot 93 is more formally described as being comprised in Certificate of Title Volume 1769, Folio 380 and is described on Plan 613. It has an area of 486 square metres. Lot 94 is more formally
(Page 6)
- described as being comprised in Certificate of Title Volume 1850, Folio 411 and is described on the same Plan 613. It also has an area of 486 square metres.
15 Both lots have a frontage to Money Street of some 12 metres and a depth of approximately 40 metres.
16 Lot 93 contains an existing residential dwelling, with no on-site car parking or vehicular access, whilst Lot 94 contains the existing "Backpack City and Surf" premises with five parking bays within the front setback area. There is open access between the two lots at the rear.
17 Along Money Street, there are a number of old houses that have been converted into offices for use by various small businesses. There is also a Buddhist temple northwards of, and adjacent to, Lot 94, and a mixed use building directly opposite, with commercial premises on the ground floor and residential apartments located above.
18 Verge parking is allowed on both sides of Money Street with restricted use during the day.
19 The precinct could be said to be representative of a now familiar inner-city lifestyle. Cf this description of a similar area accepted by the Victorian Tribunal in a backpackers case (Stevpan Nominees Pty Ltd v Port Phillip CC & Ors [2000] VCAT 1478 at [14]):
"[D]iverse in nature both in built form and in terms of its land use. It displays a vibrant inner-city character on the perimeter of the entertainment precinct … "
Planning framework
20 The subject land is zoned "Urban" under the Metropolitan Region Scheme (MRS) and, importantly, "Commercial" under the Town of Vincent Town Planning Scheme No 1 (TPS 1). Of relevance are the following policies from the Town of Vincent Planning and Building Policy Manual:
1) Policy No 3.1.13: Beaufort Precinct (Policy No 3.1.13);
2) Policy No 3.7.1: Parking and Access (Policy No 3.7.1);
3) Policy No 3.4.3: Non-Residential/Residential Interface (Policy No 3.4.3);
(Page 7)
- 4) Policy No 3.5.17: Communal Space for Lodging Houses, Hostels and Serviced Apartments (Policy No 3.5.17).
21 This last-mentioned policy is not dealt with by Mr Bain (for the respondent) in his witness statement and general compliance seems to be established by Mr Teo's evidence. (Mr Teo was a town planner called by the applicant.) Alternatively, these appear to be regulatory matters that could be dealt with by way of conditions, or upon the issue of a building licence.
The respondent's case
22 The respondent's contentions may be summarised as follows:
1) The proposed development will conflict with the desired future character of the precinct and the locality, and will have a negative impact on the locality.
2) The proposed development will have specific impacts in terms of visual amenity, car parking shortfall, noise, falling property values, anti-social behaviour (including litter and noise problems), security issues and supervision.
3) The respondent submits that the various neighbours' objections to the proposed development, which are along the lines immediately referred to above, should be given considerable weight.
4) The development particularly conflicts with Policy 3.4.3.
5) There are insufficient (internal) facilities/amenities for the occupants of the proposed development.
23 Accordingly, in the respondent's view, the application for review should be dismissed and the proposed development refused.
24 As will be noticed, some of these concerns relate to the appropriate use or development of the land, while others address conditions, regulatory or building concerns. Some issues (such as alleged falling land values) are irrelevant as they are not in themselves proper planning considerations.
25 The respondent's case may be found principally in the evidence of Mr Simon Bain and Cr Ian Ker.
(Page 8)
26 Statements in opposition from various objecting neighbours were received by the Tribunal. One neighbour, Mr Gordon, who lives immediately opposite the subject land, was called by the respondent. These objections are considered below.
The applicant's case
27 The position of the applicant in reply may be broadly summarised as follows:
1) The proposed development is consistent with the desired future character of the locality as set down in Policy No 3.1.13 and will not have a negative impact on the locality.
2) The proposed development will improve the visual amenity of the locality by relocating the courtyard – used for social events – from the front of the existing lodging house to the rear of the development.
3) The proposed development will not have a negative impact on the locality in terms of car parking, as it complies with the provisions of Policy No 3.7.1. Alternatively, sufficient car parking spaces are available for use on Money Street or in nearby public parking facilities.
4) The Management Statement – a proposed condition – devised by the applicants, specifically addresses amenity concerns such as noise, security, anti-social behaviour and the general supervision of residents.
5) The proposed development complies with Policy No 3.4.3 and Policy No 3.5.17.
6) The neighbours' objections, which, the applicant complained, were not originally provided to the applicant, are not relevant for the purposes of the review.
28 The applicant's position is that the proposed development should be approved, subject to certain conditions as outlined in the applicant's response to the various proposed conditions of approval submitted by the respondent.
(Page 9)
29 The applicant's contentions are mainly supported by the evidence of Mr Waters and his expert planner Mr Neil Teo.
Key issues
30 The two related principal planning issues appear to be:
1) Does the proposed development accord with the existing statutory and policy provisions outlined above?
2) If the proposed development proceeds, is it likely to maintain the existing level of amenity or lead to an improvement or a reduction in that level of amenity? (The issue of what conditions might then be appropriate flows on from the resolution of this issue.)
31 Before turning to these two issues, it is necessary to give some further background to and history of the proposed development.
Background to the proposal
32 Based on the information available to the Tribunal provided in the Application to Commence Development (drafted by the consulting firm Planning Solutions), it appears that an earlier application was lodged with the respondent by the same applicant in September 2003.
33 Due to a number of submissions concerning noise, traffic and parking, alleged anti-social behaviour and litter concerns, the application was "suspended" to allow these issues to be addressed by the applicant.
34 A further application, dated October 2005, was lodged with the respondent in late October 2005 and it was this second application that was eventually refused by the respondent in August 2006. Apart from the intended change of use from a single house (residential) to a lodging house at Lot 93, it is proposed to increase patronage up to a maximum of some 80 persons in respect of both lots.
35 In his evidence given at the hearing, Mr Waters advised that "if the appeal is successful then we will be refurbishing the front, upgrading it and painting it and things like that". According to the information provided in the Application for Review, the value of this work is estimated at some $5000.
(Page 10)
Assessment of the applicant's proposal
36 Under TPS 1, a "Lodging House" has the same meaning given to that term in and for the purposes of the Health Act 1911(WA).
37 The Health Act 1911 (WA) defines a "Lodging House" as follows:
"Any building or structure, permanent or otherwise, and any part thereof, in which provision is made for lodging or boarding more than six persons, exclusive of the family of the keeper thereof, for hire or reward … "
38 Under the Zoning Table, a Lodging House use carries the "SA" classification within the commercial zone, which means that the use is not permitted unless the respondent (or, on review, this Tribunal) has exercised its discretion by granting planning approval after giving special notice in accordance with cl 27 of TPS 1.
39 That clause relates to the advertising of applications for public comment prior to determination by the respondent.
40 Under cl 38(5), the respondent is required to have regard to, so far as relevant, the following matters:
"(b) any relevant planning policy;
…
(f) any submission accompanying or related to the application;
(g) the orderly and proper planning of the locality;
(h) the conservation of the amenities of the locality; and
(i) the design, scale and relationship to existing buildings and surroundings of any proposed building structure."
41 On review, the Tribunal is also bound to consider any such matters, as well as any other planning factor that may be considered relevant.
42 Under the general provisions of Policy No 3.1.13, it is stated that:
"[T]he Beaufort Precinct is to become, essentially a mixed use area of predominantly residential uses. A diverse range of dwelling types integrated with compatible commercial
(Page 11)
- activities, incorporating a strong commercial link with Northbridge along William Street, is to be strongly promoted.
The Precinct should be an area of transition from the more intense commercial development in the adjacent area to the Hyde Park (residential) Precinct.
A renewed residential character is to be established in the precinct. Although the area contains a diversity of activities, its primary use should be residential and therefore further conversion of residential properties away from residential use is to be resisted … "
43 On the other hand, under the commercial area provisions of the policy, it is suggested that:
"This area is to form an extension to Northbridge with shops, restaurants and other interactive uses continuing to be the predominant uses, cementing the physical link between Northbridge and the surrounding residential areas … The re-use of existing buildings is encouraged … "
44 Under the "uses" provision of the policy, it is stated that:
"Where it is considered that a particular development could have a detrimental impact on the amenity of the surrounding area (mainly adjacent residential development), it is to be subject to the advertising procedure set down in [TPS 1] and the Town of Vincent Policy Manual."
45 In the view of the Tribunal, the proposed development, together with the existing use on Lot 94, is relevantly residential in nature, in that it provides for sleeping accommodation as well as kitchen, dining, lounge, toilet and laundry facilities. There is provision for parking and a social gathering area at the rear of Lot 93.
46 In the town planning scheme under review in Armato v Hepburn Shire [2007] VCAT 603, the "land use term 'residential building' include[d] … backpackers lodge, boarding house, hostel, nurses home, nursing home, residential college and residential hotel, which includes motel" (at [7]). The Tribunal did consider the inclusion of a "backpackers lodge" as perhaps something of an anomaly (see at [21]), but the draftsperson and town planners obviously thought otherwise. See also Stevpan Nominees Pty Ltd v Port Phillip CC & Ors [2000] VCAT 1478
(Page 12)
- at [13]: "The northern side of Jackson Street is more mixed and comprises residential uses including backpackers accommodation … " (emphasis added).
47 Having said that, the provision of accommodation facilities is clearly also a commercial venture by the owner/applicant, but – and importantly – the residential structure on Lot 93 is to be re-used and the proposal has been advertised for submissions in order to access its impact on amenity.
48 The development application before the Tribunal for a change of use from a single house to a lodging house does not appear to the Tribunal to be necessarily inconsistent with the overall intent of Policy 3.1.13 dealing with the Beaufort Precinct.
49 However, in the Tribunal's view, in order to ameliorate as far as is practicable any adverse impact on amenity (see the discussions below), it would be reasonable to limit the maximum number of patrons in respect of both lots to an approximate doubling of the maximum presently permitted on Lot 94, that is, some 65 patrons.
Non-residential/residential interface
50 Mr Teo suggests that Policy 3.4.3, dealing with this topic, "is aimed at achieving integration between non-residential and residential uses that abut each other" and otherwise mainly concentrates on building form, type and character. Mr Bain draws a wider picture ("adjoining and nearby land"), referring to building form but also to the need to avoid "undue conflict through the generation of traffic and parking and the emission of noise".
51 Matters of traffic and parking are touched upon below, as is the issue of noise.
52 In the Tribunal's view, approval of this development would not be inconsistent with the intent of this policy. This is so, given the possible uses contemplated for the current zoning, the lack of inconsistency with the overall intent of Policy 3.1.13 dealing with the Beaufort Precinct and the existing interface of commercial/residential development on Money Street. In addition, the re-use by the applicant of the current residential building on Lot 93, the limitation to 65 patrons and the upgrading of the site are factors which indicate that interface impact will be minimised.
Parking issues
53 One of the prime objectives of Policy No 3.7.1 is:
(Page 13)
- "2) To ensure the adequate provision of parking for various services, facilities and residential developments and to efficiently manage parking supply and demand."
54 The accompanying Policy Statement explains that:
"[O]n-site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent."
55 Under the Land Use Parking Requirement Table in TPS 1, there is no lodging house activity listed. However, a hotel is listed, and there are a number of car parking spaces specified as "one space for bedroom or one space for three beds provided, whichever is the greater … " This is the same figure for residential building use.
56 In the officers' report to the respondent, dated 11 July 2006, the number of necessary car parking spaces was based on this requirement. Before reproducing the table in that report, it should be noted that cl 10 of the policy provides for the application of so-called "adjustment factors" which have the effect of reducing the number of car parking spaces. Proximity to a rail station or bus stop, or similar, would qualify for the application of an adjustment factor.
57 The July 2006 report provided as follows (in substance):
Requirement | Total |
|
|
0.85 (within 400 metres of a bus stop); 0.85 (within 400 metres of one or more existing public car parks in excess of 75 spaces); 0.85 (within 800 metres of a rail station) |
= 16.58 Car Bays |
|
|
|
|
(Page 14)
|
|
58 Based on a cost of $2600 per bay as set down in the respondent's 2006/2007 Budget, this would equate to a cash-in-lieu payment of $19 162. This figure has been included in a draft set of "without prejudice" conditions forwarded to the Tribunal by the respondent for the purposes of this review.
59 As already mentioned, Mr Neil Teo, who is a qualified town planner, was called by the applicant. Mr Teo argued that although the respondent's main assumptions in the table reproduced above were not resisted by the applicant, there was a dispute as to the application of a parking requirement based upon the subject land being used as a residential building. He also drew attention to other approvals by the respondent, or existing similar operations, broadly consistent with his client's position.
60 Mr Teo argued that the proposed used should be based on its merits, and that the results of a traffic survey conducted by him revealed that:
1) backpackers rely on public transport and pedestrian modes as the primary means of transport;
2) the subject land had excellent access to public transport;
3) if a backpacker hired a vehicle, it would be used to tour the State and not sit idle on the subject land;
4) the existing five on-site bays, together with on-street parking were sufficient to cater for the occasional parking demand (for example, an airport shuttle service mini bus).
61 Mr Teo concluded that the existing parking allocation was sufficient and that the imposition of the cash-in-lieu requirement was an inappropriate condition.
62 In response, Mr Bain, who appeared for the respondent, submitted, amongst other matters, his observations that "more recently over the last two weeks I have visited or driven past the premises four times. Each time there were three or four cars located in the car park and twice in
(Page 15)
- Money Street, all of the on street bays were occupied". The respondent did not, however, offer any evidence from a traffic or parking expert.
63 Whether or not one accepts these last mentioned observations as relevantly accurate or valid, the Tribunal finds it difficult to conclude that by increasing the formal number of patrons by two and one half times approximately (as originally proposed) or to 65 (as the Tribunal has determined), there would not be additional parking demand over and above the existing five car parking bays.
64 Subject to debate about one matter, in principle, the respondent's demands for a cash-in-lieu contribution can be seen as "fairly and reasonably [related] to the development, … relevant to the implementation of current planning policy and, in the circumstances of [the] case, [the sum calculated] could not be construed as unreasonable": cf Austgold Holding Pty Ltd and Town of Vincent [2007] WASAT 70 at [40] (car parking). See also Randall and Town of Vincent [2005] WASAT 129 at [137] (car parking), and Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374 at [22] (public art).
65 The "one matter" that the Tribunal has reservations about concerns the extent of the contributions sought. In the Tribunal's view, Mr Teo's basal evidence concerning other comparative approvals by the respondent, and the nature of the clientele of such institutions (particularly their reliance on public transport and the like evidence consistent with Mr Waters' observations) tends to demonstrate that a cash-in-lieu contribution at the level sought is excessive. His evidence on these points ought to be generally accepted.
66 In the Tribunal's view, a cash-in-lieu amount equivalent to a five vehicle shortfall is appropriate, having regard to the following matters: the principles set out above taken from previous Tribunal decisions; the expanded number of patrons (65) and staff; the existing ratio of lodgers to parking bays; the international clientele; comparative businesses and existing approvals in the area; and Mr Teo's other relevant evidence.
Amenity: neighbours' objections
67 The objecting neighbours' (or their agents') concerns have already been summarised above. They can be found in the witness statement of Mr Gordon (and his subsequent oral evidence) and in the special correspondence received into evidence from Ms Kirkness, Mr Travis, Mr Jenkins, Ms Wintergreene and Ms Nguyen. They are also relevantly
(Page 16)
- summarised in the officers' report below, minuted in August 2006, and in Cr Ker's oral evidence to the Tribunal.
68 In addition, a comprehensive objection in the shape of an affidavit and a further substantial submission was received from Ms Joanne McLeod.
69 All of the material from objectors, other than Mr Gordon's evidence, was received pursuant to leave granted by the Tribunal under s 242 of the Planning and Development Act 2005 (WA).
70 Without down playing the genuine concerns of these neighbours, it may be fairly said that they represent fairly generalised and isolated incidents attributed by them to the clients of the backpackers operation. Many of them relate to incidents going back a substantial period of months. Recently, there appear to be next to none complaints.
71 Moreover, in such cases, in the experience of the Tribunal, some allowance must be had in relation to sensitivities of neighbours in this position. In Burnett and Town of Cambridge [2006] WASAT 29 it was noticed, at [30], that there can often be "some unintended, albeit understandable, oversensitivity regarding [a] neighbour's subjective amenity concerns … which, if the matter were to be viewed more objectively, would not necessarily result in concerns expressed to such a degree". With the greatest of respect to the objecting neighbours, this is possibly the case here.
72 Mr Waters gave evidence at length about his operational and management practices (including a supplementary statement of evidence in reply to Ms McLeod's concerns, filed in February 2007). He was, in the Tribunal's view, an impressive witness and the Tribunal generally accepts his evidence. That evidence includes his observations that there were complaints in the past when the operation "was managed by another person"; that he proposes a comprehensive management statement/plan for the development; that "Money Street is close by to Northbridge and is used as a thoroughfare by vehicles and people on foot coming to and going from Northbridge"; that "the vast majority of backpackers [are] polite and well-behaved young people" and mostly from overseas; and that he had taken steps personally to consult with neighbours and introduce himself to them. He had some months ago furnished them with his mobile telephone number. Tellingly, he had received only one call up until February 2007.
(Page 17)
73 These matters indicate that good management and adequate supervision are the key to lessening adverse amenity impacts.
74 The Tribunal notes that in one recent NSW planning case, it was observed that "entertainment in the city [of Newcastle] is now predominantly a 10pm to 5am culture": Van New International Pty Limited v Newcastle City Council [2007] NSWLEC 28 at [38]. The Tribunal should not ignore these developments, both as they might apply to the corresponding "culture" of Northbridge and to the consequences for those residing in the vicinity of that precinct arising out of the patronage of Northbridge.
75 As Mr Bain points out, there can be no issue that planning approval, amenity and number of patrons are interrelated matters. Thus, in Randall and Town of Vincent it was decided as follows (at [98]):
"The Tribunal accepts the respondent's submission that 'the proposed increase in patron numbers is an intensification of use, which has a direct impact on the preservation of the amenities of the locality, should the car parking not be provided' and that, accordingly, applying a purposive approach, it constitutes a 'use' and thus 'development' which requires prior development approval of the respondent. It is within the clear scope and purpose of the MRS and TPS 1 to regulate, through the need for planning application and assessment, the significant increase in the number of patrons proposed in the application."
76 Here, however, to the extent that the objecting neighbours have concerns, then those matters are largely addressed in the conditions attaching to planning approval and the reduction in the maximum number of patrons to 65. They are not in themselves sufficient to suggest that the amenity of the precinct would necessarily diminish to the requisite degree such that the proposed development ought not to proceed. Moreover, the Tribunal notes that the development proposes to shift a social gathering area (and potential noise source) from the front to the rear of the premises.
77 It is to those conditions that the Tribunal now turns.
Conditions
78 The parties exchanged views on the question of what conditions would be appropriate if planning approval were given. The applicant objected to four of the proposed conditions. The first of these is as follows:
(Page 18)
- "(d) prior to the issue of a Building Licence, or first occupation of the development, whichever occurs first, revised plans shall be submitted and approved demonstrating the following:
(1) … ;
(2) … ;
(3) the provision of adequate toilet, shower, sanitary conveniences and other related facilities as required by the Building Code of Australia; and
(4) … "
80 The next condition under challenge is as follows:
"(e) the applicant/owner shall pay a [cash-in-lieu] contribution of $19 162 for the equivalent value of 7.37 car parking spaces, based on the cost of $2600 per bay as set out in the Town's 2006/2007 Budget. Alternatively, if the car parking shortfall is reduced as a result of a greater number of car bays being provided, the [cash-in-lieu] amount can be reduced to reflect the new changes in car parking requirements."
81 This matter has been dealt with above. The condition will be modified consistently with the reasons of the Tribunal, set out above.
82 The next condition objected to is:
"(f) the lodging house at Nos 37-39 (Lot 93) Money Street, Perth shall accommodate a maximum of 48 lodgers at any one time and the lodging house at Nos 41-43 (Lot 94) Money Street, Perth shall accommodate a maximum of 32 lodgers at any one time."
(Page 19)
83 The applicant cannot, in principle, resist planning approval prescribing a maximum numbers of patrons: see the reference above to Randall and Town of Vincent at [98]. The best course seems to be to treat the development as a single planning unit and to prescribe, as indicated, a maximum number of 65 patrons. Other regulatory laws may have an impact upon this figure (or the actual configuration, having regard to the layout or size of the premises), but they are not presently relevant to the issue of regulating maximum patron numbers. This condition will be amended accordingly.
84 Finally, this condition is opposed by the applicant:
"(g) a detailed management plan that addresses the control of noise, traffic, car parking, litter and anti-social behaviour (to reasonable levels) associated with the development shall be submitted and approved prior to the first occupation of the development, and thereafter implemented and maintained."
85 The applicant has already submitted a detailed management plan and would wish to see the condition, in effect, pick up that plan. It was clear that during the hearing the parties continued to develop that plan. As has been indicated above, that plan is crucial to the success of the operation as regards minimising adverse amenity impact. The applicant's counsel, Mr Skinner, was understandably anxious to preserve his clients' rights to have the Tribunal finally decide the scope of that plan. Given these matters, the Tribunal will make a direction similar to that made in Burnett and Town of Cambridge, where it was said (at [41]):
"The parties will be directed to negotiate in good faith as to the final conditions to be imposed. Those conditions are to be consistent with the indications of the Tribunal just given. If the parties cannot agree on the final form of the conditions by way of a minute of consent orders, then the Tribunal shall rule upon them. That course should not be necessary if the parties approach the matter constructively and in good faith. And, of course the Tribunal retains the flexibility, if circumstances warrant it, to make a costs award should unreasonable intransigence be shown by either party on this issue."
86 Finally, the Tribunal has reflected upon whether planning approval should be limited in duration, or made personal to the applicant, or both
(Page 20)
- (cf: Stein & Anor and Shire of Chapman Valley [2006] WASAT 105). This was a matter raised by the Tribunal itself. In the result, the Tribunal is not satisfied that this case is in the class of matters ordinarily within contemplation for such a restrictive approval as regards making approval personal to Mr Waters: cf Stein & Anor and Shire of Chapman Valley at [87]. However, a period of five years ought to be imposed upon the applicant in order to, in effect, permit both a review of the operation of the premises at the expiry of that period and a broader review of the nature of the residential/commercial interface and related amenity issues. Five years is a reasonable term to allow the applicant to put sufficient "financial and organisational capital" into the business: cf Councillor Ker's evidence at T:17.
Conclusions
87 The respondent has not made out a case for refusal of planning approval. The Tribunal is satisfied that the proposed development is not inconsistent with the respondent's planning framework, and that the amenity impacts will be minimal and, in any event, be reasonably capable of regulation by the conditions to be imposed by the Tribunal.
88 The review should be allowed and conditional planning approval given.
Orders
89 The orders of the Tribunal are:
1. The application for review is allowed.
2. The decision under review is set aside and in substitution for that decision there will be a decision granting planning approval under TPS 1 in respect of the subject land in terms of the development application for a period of five years, upon the following conditions:
(a) all external fixtures, such as television antennas (of a non-standard type), radio and other antennas, satellite dishes, solar panels, external hot water heaters, air conditioners, and the like, shall not be visible from the street(s), are designed integrally with the building, and be located so as not to be visually obtrusive;
- (b) any new street/front wall, fence and gate between the Money Street boundary and the main building, including along the side boundaries within this front setback area, shall comply with the following:
(1) the maximum height of posts and piers being 1.8 metres above the adjacent footpath level;
(2) decorative capping on top of posts and piers may extend the total maximum height of the posts and piers to 2.0 metres above the adjacent footpath level;
(3) the maximum width, depth and diameter of posts and piers being 250 millimetres;
(4) the maximum height of the solid portion being 1.2 metres above the adjacent footpath level, and the section above this solid portion being visually permeable, with a minimum 50% transparency; and
(5) the provision of a minimum 1.5 metres by 1.5 metres truncation where walls, fences and gates adjoin vehicle access points, or where a driveway meets a public street or right of way; and a minimum 3.0 metres by 3.0 metres truncation where two streets intersect. Walls, fences and gates may be located within this truncation area where the maximum height of the solid portion is 0.65 metre above the adjacent footpath level;
(c) all signage that does not comply with the Town of Vincent'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;
(Page 22)
- (d) prior to the issue of a Building Licence, or first occupation of the development, whichever occurs first, revised plans shall be submitted and approved demonstrating the following;
(1) adequate landscaping to screen communal spaces from adjoining properties;
(2) communal spaces to be sufficiently equipped with seating and tables; and
(3) the provision of a weather protected pedestrian access structure connecting both the existing and proposed lodging houses on the subject properties.
The revised plans shall not result in any greater variation to the requirements of the Town of Vincent's Policies. All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owner(s)/occupier(s);
(f) the lodging house at Nos 37-39 (Lot 93) and Nos 41-43 (Lot 94) Money Street, Perth shall accommodate a maximum of 65 lodgers at any one time;
(g) a detailed management plan that addresses the control of noise, traffic, car parking, litter and anti-social behaviour (to reasonable levels) associated with the development shall be
- developed, and thereafter implemented and maintained;
- (h) prior to the issue of a Building Licence or first occupation of the development, whichever occurs first:
(1) the subject land shall be amalgamated into one lot on Certificate of Title; or alternatively, the owner(s) shall enter into a legal agreement with and lodge an appropriate assurance bond/bank guarantee to the satisfaction of the Town of Vincent, which is secured by a caveat on the Certificate(s) of Title of the subject land, prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent, undertaking to amalgamate the subject land into one lot within six months of the issue of the subject Building Licence or first occupation of the development, whichever occurs first. All costs associated with this condition shall be borne by the applicant/owner(s); or
(2) the owner(s) shall enter into a legal agreement and lodge an appropriate assurance bond/bank guarantee, with or register a grant of easement on the subject land in favour of the Town of Vincent and to its satisfaction, to provide rights of access to/from and use of a minimum five car parking bays on Nos 41-43 (Lot 94) Money Street, Perth and the weather protected pedestrian access structure connecting both the existing and proposed lodging houses on the subject properties. The subject access and five car parking bays and structure are to be provided at no costs for use by the employees, customers and visitors of the lodging house at Nos 37-39 (Lot 93) Money Street, Perth. The legal agreement shall be secured by a caveat while the grant of easement shall be registered on the Certificate(s) of Title of the subject land. The legal documentation shall be prepared by the Town of Vincent's solicitors or other solicitors agreed upon by the Town of Vincent. All costs associated with this condition shall be borne by the applicant/owner(s);
- (i) the lodgers may stay at the subject lodging house for a maximum period of three consecutive months; and
(j) a lodging housekeeper or manager shall be resident on the subject properties at all times/reside continuously in the lodging houses in accordance with Div 3 – Management and Care, cl 146 of the Town of Vincent Health Local Law 2004.
- 3. The parties are directed to negotiate with each other in good faith to produce the final management plan referred to in the conditions attaching to the planning approval, being a plan not inconsistent with the reasons for decision of the Tribunal, and to be filed by the respondent within 28 days of the date of this decision.
4. Leave is granted for the parties to apply to the Tribunal concerning any issue arising out of carrying out of order 3.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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