Waters & Anor and Town Of Vincent
[2007] WASAT 128 (S)
•18 DECEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | WATERS & ANOR and TOWN OF VINCENT [2007] WASAT 128 (S) |
| MEMBER | : | MR L GRAHAM (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 25 MAY 2007 |
| SUPPLEMENTARY | ||
| DECISION | : | 18 DECEMBER 2007 |
| FILE NO/S | : | DR 308 of 2006 |
| BETWEEN | : MICHAEL WATERS |
BACKPACK PTY LTD
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Amenity - Quiet times - A 10 pm to 5 am culture - Management statement or management plan - The tenor of the Tribunal's decision - Backpackers - Established residents
Legislation:
| Planning and Development Act 2005 (WA), s 242 Environmental Protection (Noise) Regulations 1997 (WA) | [2007] WASAT 128 (S) |
| Result: | |
| That the "quiet times" be: Friday and Saturday 12 midnight to 7.30 am Sunday to Thursday 11 pm to 7 am | |
| Category: B | |
| Representation: | |
| Counsel: |
| Applicants | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment
[1981] AC 578
Waters & Anor and Town of Vincent [2007] WASAT 128
[2007] WASAT 128 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The matter before the Tribunal resulted from a breakdown in
negotiations between the parties over the proposed "quiet times" to be incorporated into a final Management Statement or Management Plan. This was the only outstanding issue to be resolved.
2 The Tribunal examined the respective arguments of the parties and
the tenor of the Tribunal's earlier decision; particularly with respect to amenity. That decision was delivered on 25 May 2007 and required the parties to negotiate in good faith to produce a final Management Plan.
3 The Tribunal determined that, having regard to the close proximity
of the entertainment hub of Northbridge, the proposed "quiet times" should reflect that reality within the Management Statement (or Management Plan), but should not be so restricted as to be unreasonable with regard to protecting the amenity of established residents nearby.
The "quiet times" were restricted to:
Friday and Saturday: 12 midnight to 7.30 am Sunday to Thursday: 11 pm to 7 am
Introduction
On 25 May 2007, a decision was handed down by the Tribunal in the matter of Waters & Anor and Town of Vincent [2007] WASAT 128.
6 An earlier application for review in September 2006 by
Mr Michael Waters and his related company (Backpack Pty Ltd) had been lodged against a decision of the Town of Vincent to refuse a change of use from a single house (residential) to a lodging house at No 37 - No 39 Money Street, Perth (subject land).
In the Tribunal's decision, the associated orders included:
"...
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:
[2007] WASAT 128 (S)
...
(f) the lodging house at Nos 37-39 (Lot 93) and No 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; ... 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."
8 On 21 July 2007, the parties met to discuss a "draft" Management
Statement as proposed by Planning Solutions (Aust) Pty Ltd on behalf of the applicant. The only matter in contention was the so-called "quiet time" issue.
9 On 30 July 2007, the respondent requested a further directions
hearing at the Tribunal as the parties were unable to reach agreement regarding the suggested "quiet times" as outlined in the "draft" Management Statement.
10 On 19 September 2007, an on-site mediation was held between the
parties and Senior Sessional Member Graham, but no resolution to the
"quiet times" issue was reached.11 The parties subsequently confirmed that they had no objection to this
outstanding matter being determined by Senior Sessional Member
Graham.
[2007] WASAT 128 (S)
Applicants' position
The position of the applicants is summarised in advice received by the Tribunal on 28 September 2007.
The advice prescribes the "quiet times" to be between 12.30 am and 7.30 am Monday to Sunday with a review by the respondent in one year.
In order to manage any complaints, the applicants propose:
a)
Neighbours to be able to access Mr Waters' personal mobile phone number.
b)
Mr Waters to contact the respondent every three months in writing to determine if complaints have been received and, if required, to further instruct management and consult with neighbours.
c)
A complaints book will be introduced whereby complaints are logged and immediate action taken by the manager on that shift.
d)
All lodgers to sign a "House Rules" statement which, if not strictly followed, would lead to immediate eviction and the forfeiture of bond money.
e)
The complaints system log book would detail the time of the complaint, the details of the person making the complaint and all actions taken to deal with the complaint.
Respondent's position
15 The position of the respondent is outlined in a document, dated
10 October 2007, and titled "The Respondent's Response To The
Proposed Quiet Times And Associated Noise Management". It argues:
a) The "quiet times" should be: Friday and Saturday (12 midnight to 7.30 am).
b)
The rationale for "quiet times" is based on the Environmental Protection (Noise) Regulations 1997 (WA) (Regulations) whereby the "assigned level"
[2007] WASAT 128 (S)
requirements designate Monday to Saturday (10 pm to
7 am) and Sundays and public holidays (10 pm to 9 am).
c)
Given the mixed commercial/residential use of the locality and known heightened ambient sound levels throughout the precinct on Friday and Saturday nights (due to traffic and noise emissions from restaurants, licensed premises and the like), it is considered that the "assigned levels" for the locality do not provide an indicative background baseline on those nights, as would be experienced in the majority of other suburban areas. Therefore, the Town considers that permitting a 12 midnight to 7.30 am Friday and Saturday timeframe to be a reasonable allowance.
d)
It is considered that the amenity of the surrounding residential dwellings will be negatively impacted upon by an extension of the "quiet times" to commence from 12.30 am from Monday through to Sunday, which is also outside/contrary to the requirements of the Regulations.
e)
During the period of community consultation, nine objections were received; five of which were from nearby residents who highlighted their concerns in relation to increased noise pollution. The respondent's proposed "quiet times" from 10 pm to 7 am Sunday to Thursday is an appropriate response to those concerns.
f)
Overall, the "quiet times" proposed by the Town are considered reasonable given the locational and activity context of the lodging house, whilst providing a reasonable level of amenity to nearby residents.
g)
The respondent has concerns that the various measures contained in the "draft" Management Statement to compensate for reduced "quiet times" may not continue to be enforced if the ownership/management of the lodging house changes in the future. The application of the Town's "quiet times" is considered to be a more effective measure to manage noise associated with the lodging house.
[2007] WASAT 128 (S)
The tenor of the Tribunal's decision
In its reasons, the Tribunal addressed the issue of "amenity" in the context of objections from neighbours. It advised:
"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."
In the "Summary of Tribunal's decision", the following was advised:
"...
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.
..."
[2007] WASAT 128 (S)
18 The overall tenor of the Tribunal's reasons is that although the
concerns of neighbours are recognised and understood, the alleged noise and anti-social behaviour cannot necessarily be sheeted home to the backpacker operation.
19 In fact, the proximity of Northbridge and a 10 pm to 5 am "culture"
already impacted on amenity, and that at least with the subject land any
adverse behaviour could be quickly dealt with and penalties imposed.
Conclusions
20 This matter is before the Tribunal because of a breakdown in
negotiations between the parties over the proposed "quiet times" to be included in a final Management Statement or Management Plan. The question of "quiet times" is the only outstanding issue, and is before the Tribunal to be determined and handed down as a Supplementary decision.
21 In examining this matter, it appears that the rationale for "quiet
times" is based on the Regulations whereby the "assigned level" requirements designate Monday to Saturday (10 pm to 7 am) and Sunday and public holidays (10 pm to 9 am) as the times during which the "assigned levels" are the most restrictive.
22 There is clearly a recognition here that on Sundays and public
holidays in particular, the normal expectation is that residents should not be impacted by unsatisfactory levels of peripheral noise in the early hours of the following morning.
23 Having said that, there are several mitigating factors that need to be
recognised in that the entertainment hub of Northbridge is within 500 metres of the subject land, and that the existing established residents have already had their amenity affected by a so-called 10 pm to 5 am "culture". This "culture" expresses itself whereby individuals commence their enjoyment of the hotels, clubs and restaurants at a later hour and conclude in the early hours of the following morning.
24 It also appears that nearby permanent residents regularly experience
noise, parking problems and various types of anti-social behaviour from individuals, and that these individuals are not necessarily, or are rarely, backpackers from the subject land.
25 In terms of backpacker behaviour, it is not unreasonable to conclude
that on any given day, individual backpackers could be sleeping on-site during the day following a long journey to Western Australia or involved
[2007] WASAT 128 (S)
in the usual cooking or laundry activities. Also, they could be involved in the evening at an on-site social gathering, or preparing to go out and to return that night at various hours or return in the early hours of the following morning.
26 For those returning late at night or in the early hours of the following
morning, there would be an imperative during the "quiet times" to remain quiet in the interests of nearby residents, or sleeping backpackers, or risk eviction and the forfeiture of bond monies. There may of course be times when the threat of these actions will have little effect on individual behaviour.
27 However, the position taken by the applicant is that the "quiet times"
should be the same for every day of the week and be for a 6.5 hour time
period from 12.30 am to 7 am.28 The position of the respondent is that the week should be broken
down by separating Fridays and Saturdays from Sunday through to
Thursday.29 They argue that on Friday and Saturday there will be more activity at
hotels, restaurants, clubs, etc and as a result, "quiet times" should be for a
7.5 hour time period from 12 midnight to 7.30 am.30 On Sunday through to Thursday, there is a recognition that residents
may wish to retire earlier, or at least not be exposed to noise from 10 pm through to 7 am the following morning. This "quiet time" period amounts to a total of 9 hours.
31 The view of the Tribunal is that the proposed "quiet times" do need
to reflect in some way the patters of behaviour of established residents rather than the patterns of behaviour of a largely transient backpacker community.
32 Accordingly, taking into account the arguments of the parties within
the context of the nearby entertainment hub of Northbridge, and the proposed noise management practices incorporated in the "draft" Management Statement, the Tribunal determines that the "quiet times" should be:
Friday and Sunday: 12 midnight to 7.30 am. Sunday to Thursday: 11 pm to 7 am.
[2007] WASAT 128 (S)
33 In establishing how these "quiet times" would work, the "quiet time"
for Friday would not come into effect until 12 midnight and then continue until 7.30 am on Saturday morning. The "quiet time" for Saturday would commence at 12 midnight and then continue until 7.30 am on Sunday morning.
34 For Sunday, the "quiet time" would come into effect at 11 pm and
continue until 7 am Monday morning. Again, on each day through to Thursday they would commence at 11 pm and continue until 7 am on Friday morning.
35 In the view of the Tribunal, these times are not significantly different
from those suggested in a letter dated 23 July 2007, from Planning Solutions (Aust) Pty Ltd on behalf of the applicant to the Town of Vincent.
36 It is also the view of the Tribunal that this determination meets the
validity test as articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in that:
"... (1) it must be imposed for a planning purpose; (2) it must fairly and reasonably relate to the development for which permission is being given; (3) it must be reasonable, that is to say, it must be a condition which a reasonable local authority properly advised might impose."
Orders
For the foregoing reasons, the Orders of the Tribunal are as follows:
1.
That the final Management Statement (Management Plan) incorporate the following "quiet times":
Friday and Saturday: 12 midnight to 7.30 am Sunday to Thursday: 11 pm to 7 am 2. That the House Rules detailed at Appendix 1 of the "draft" Management Statement incorporate the "quiet times" specified in order 1 above in the final Management Statement (or Management Plan).
3. That the "Staff and Management Policy" detailed at Appendix 2 of the "draft" Management Statement be
[2007] WASAT 128 (S)
included in the final Management Statement (or
Management Plan).
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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