WEN Zhen Ma and City of Canning
[2012] WASAT 2
•6 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WEN ZHEN MA and CITY OF CANNING [2012] WASAT 2
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: 22 DECEMBER 2011
DELIVERED : 6 JANUARY 2012
FILE NO/S: DR 329 of 2011
BETWEEN: WEN ZHEN MA
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning Development application Refusal of change of use to permit karaoke lounge in 'Commercial zone' Consideration of noise, parking, traffic, antisocial behaviour and late night hours of operation Scale of activity Compliance with town planning requirements Acoustic analysis Noise sensitive premises Amenity of locality
Legislation:
City of Canning Town Planning Scheme No 40, cl 2.3.6.2, cl 2.3.8
Environmental Protection (Noise) Regulations 1997 (WA), reg 7(1)(a)
State Administrative Tribunal Act 2004 (WA)
Result:
Application for review upheld
Decision of respondent set aside and development conditionally approved
Category: B
Representation:
Counsel:
Applicant: Mr E Samec
Respondent: Mr D Nicholson
Solicitors:
Applicant: Samec Planning
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is a review of the respondent's decision to refuse development approval for a change of use of premises to accommodate a karaoke lounge in a highway frontage commercial zone in Bentley.
The respondent refused the proposal on grounds that it would impact detrimentally on the amenity of the locality because of nuisance generated by noise and traffic.
The applicant demonstrated in evidence that the karaoke lounge was limited in scale, able to comply with the Environmental Protection (Noise) Regulations 1997 (WA) in respect of noise sensitive premises in the locality and conformed with relevant town planning scheme requirements.
The Tribunal was satisfied that issues raised in respect of traffic nuisance and possible antisocial behaviour were of limited significance and capable of being practically managed.
The application for review was upheld and the proposed change of use was conditionally approved.
Introduction
This is a review of a decision made by the City of Canning (City, Council or respondent) not to grant approval for the proposed change of use from 'Health Centre' to karaoke lounge at premises situated at No 1129 (Lot 48) Albany Highway, Bentley (land or site).
Samec Planning, on behalf of Mr Wen Zhen Ma (applicant), submitted the application to the respondent on 12 January 2011.
Following two occasions of advertising the proposed change of use to adjoining property owners for comment on the original and then subsequently amended plans, the respondent refused the application on 23 August 2011.
The applicant lodged an application for review of the respondent's decision with the State Administrative Tribunal on 19 September 2011.
The proposal and its context
The proposal under review is for a change of use of an existing building to accommodate a karaoke lounge.
The building on the land is set back a few metres from its Albany Highway frontage. One car bay is located in the front setback area. Car parking for eight vehicles is provided at the rear of the building accessed via a right of carriageway across adjoining Lot 47.
The building has customer access from the front and rear.
The floor plan of the building illustrates a karaoke lounge occupying the front two thirds of the building, featuring a stage, tables and chairs, a bar and cashier counter and a manager's office.
The rear third of the building floor plan shows a food preparation area, staff and customer toilet facilities.
It is understood that the karaoke lounge would cater for up to 33 customers and that three service staff would be engaged. The hours of operation would be 3 pm to midnight from Tuesday to Saturday and 3 pm to 10 pm on Sundays.
The premises is adjoined by commercial buildings on either side of its highway frontage and a vacant commercial site behind. A further substantial commercial premises lies beyond the vacant site before reaching the transition to residential properties.
Albany Highway accommodates traffic volumes in excess of 40,000 vehicles per weekday.
Statutory and policy instruments
The land is zoned Commercial under the City of Canning Town Planning Scheme No 40 (TPS 40).
The proposed karaoke lounge is accepted as constituting a 'Public Amusement' use as defined under TPS 40.
A 'Public Amusement' use is not a permitted use in the 'Commercial zone' unless permission is granted by the Council.
According to cl 2.3.6.2 of TPS 40, the Council in exercising its discretion as to approval or refusal, should take into account a series of matters detailed under cl 2.3.8 of TPS 40. These generally include:
•orderly and proper planning and preservation of amenity;
•submissions by the applicant;
•comments of objectors or supporters;
•the nature of the proposed use and its relationship to the use of other land in the locality;
•parking;
•the Albany Highway Policy Plan; and
•other relevant matters.
The respondent's decision
The respondent refused the application to change the use of the premises for the purposes of operating a karaoke lounge. The reasons for refusal were cited as follows:
(i)The proposed land use will have a detrimental impact on the amenity of nearby residential properties due to noise associated with the activity.
(ii)The proposed land use will have an adverse impact on the amenity of nearby residential properties due to the hours of operation and associated traffic.
(iii)The proposal is not in the interest of orderly and proper planning.
The respondent's argument
The respondent argued that the proposed karaoke lounge will have an adverse impact on the amenity of the locality, including nearby residential properties, because of noise emissions from the karaoke lounge, noise associated with the carpark and generally from traffic associated with the use.
Mr Terry George, a qualified and experienced acoustic engineer, gave evidence on behalf of the respondent with regard to anticipated noise levels associated with the proposed karaoke lounge.
Mr George reviewed the acoustic assessment undertaken on behalf of the applicant by Mr Nicolo Della Gatta of ND Engineering and concluded that, subject to qualification of some of the assumptions made by ND Engineering, compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Regulations) may be achieved at the nearby residences.
Mr George expressed the belief, however, that based on the current design, noise levels may exceed regulation requirements at the adjoining commercial building.
Councillor Joe (Guiseppe) Delle Donne, Mayor of the City of Canning, an experienced member and chairman of the Council planning committee, gave evidence on behalf of the respondent.
Councillor Delle Donne drew attention to the recent history of the use of the premises, the complaints of residents and the fact that the City had successfully prosecuted the proprietors in 2010 for conducting an unapproved and illegal use of the land for the purposes of a brothel.
The original plans for the karaoke lounge had previously illustrated separate private rooms. Three objections were received, of which two objections were from residents expressing concern that the proposed use might be continued to be used as a brothel. However, Councillor Delle Donne advised that subsequently the plans were amended to illustrate an open plan lounge with no private rooms. This appears to have allayed concerns to some extent, as only one nonresidential objection was received by the respondent following readvertising.
On the issue of noise and relying on advice of the acoustic engineer, Mr George, Councillor Delle Donne expressed concern that the applicant had not adequately discharged the onus of demonstrating that the proposal will not have an unacceptable impact on the amenity of the locality.
Councillor Delle Donne pointed out that the hours of operation overlapped with normal business hours during the week and was concerned that operation of the karaoke lounge would impact on adjoining commercial premises.
Late night hours of operation including carpark noise and traffic movements are likely disturbances to nearby residential properties such as those at No 5 and No 12 Coolgardie Street.
The parking area at the rear of the premises, according to Councillor Delle Donne, is constricted to the effect that, if it is full, then a car cannot be turned around to exit in a forward direction. This will result in complicated traffic movements potentially impacting on the amenity of nearby residences late at night.
There is a likelihood that customers will park in Coolgardie Street because of the limits of the rear carpark.
Noise associated with patrons leaving the premises at a late hour and opening and closing doors of vehicles parked on Coolgardie Street will have an undesirable effect on the otherwise peaceful amenity of the residential area, according to Councillor Delle Donne. Additionally, there is a likelihood that because of proposed restrictions at the intersection of Coolgardie Street and Albany Highway preventing a right turn movement, drivers will rely on departure routes through the residential area causing further disruption to local amenity.
Patrons may sometimes leave the karaoke lounge in a rowdy or undisciplined manner. Objections to the proposal received by the respondent cited concern of the adjoining Muslim Women's Support Centre as to the risk of such antisocial behaviour.
Councillor Delle Donne was of the opinion that the proposed use was not a low intensity use suitable in the 'Commercial zone' which is otherwise mainly characterised by office and small scale retail development. A use, such as a karaoke lounge, would be more appropriately located in a regional centre.
Further evidence corroborating Councillor Delle Donne's opinions was submitted by Councillor Graham Barry, a councillor of the City of Canning.
Councillor Barry was particularly concerned that the applicant intended to apply to obtain a liquor licence for the karaoke lounge. The sale of alcohol combined with late operating hours may increase the risk of antisocial behaviour.
In the event of any approval, Councillor Barry was of the view that the applicant should be required to comply with a management plan to ensure that the risk of antisocial behaviour is properly addressed.
Mr Lloyd Douglas provided further evidence on behalf of the respondent.
Mr Douglas is the owner of the adjoining property, No 1127 (Lot 47) Albany Highway. He described his ground floor tenant as The Muslim Women's Support Centre (WA) Inc whose purpose is to support women suffering from domestic violence or abuse, and his upper floor tenant as a computer support business trading as Belcurve Pty Ltd.
Mr Douglas expressed concern as to the overlap of operating hours whereby the karaoke lounge will function, in part, during normal daytime business hours.
Mr Douglas advised the Tribunal that his tenants' weekday business hours concluded at about 6 pm.
The ground floor space of the adjoining premises directly abut each other and accordingly Mr Douglas was very concerned that the amplified music generated by the karaoke lounge would impact on his tenants. The karaoke stage is to be located on the wall immediately adjacent his building and Mr Douglas advised that, according to Mr George the acoustic engineer, noise levels would exceed the commercial assigned noise level.
The applicant's argument
The applicant argued that the location of the land on Albany Highway in the 'Commercial zone' is an appropriate location for the proposed karaoke lounge.
The limited customers of the karaoke lounge, the demonstrated compliance of car parking requirements and the adequacy of the buffer between the premises and the residential area, will prevent adverse amenity impacts on the locality.
Accordingly, there are no valid planning reasons to justify refusal of the proposed karaoke lounge.
Mr Nicolo Della Gatta, a qualified and experienced acoustic engineer, submitted an acoustic assessment report that he had undertaken on the proposed karaoke lounge.
The assessment addressed three potential noise sources from the premises:
•mechanical services associated with air conditioning, toilet and kitchen exhaust and refrigeration equipment;
•carpark noise, car doors, people talking; and
•music and singing associated with karaoke.
In his report Mr Della Gatta described how the noise sensitive residential properties, Nos 5, 8 and 12 Coolgardie Street, situated within 35 metres of the boundary of the site, were largely shielded from the direct line of noise transmission by various physical elements.
Mr Della Gatta concluded from his assessment that the karaoke lounge would comply with the Regulations subject to implementation of a series of recommendations with respect to specifications for mechanical services, certain building element modifications and installation of a noise level limiter within the karaoke lounge.
Witness for the applicant, Mr Ernest Samec, a qualified and experienced architect and town planner, explained the history and details of the proposed karaoke lounge application.
Mr Samec described the basic functions of the karaoke lounge involving a flat screen karaoke machine mounted on the wall behind a stage. Customers can select songs and sing in accompaniment with the music. The emphasis is on singing, such that the music should not be so loud as to overcome the customer's voice. The audience comprising other customers can sing along and be entertained by video clips appearing on screen.
Mr Samec affirmed that the nature of the use constituted a 'Public Amusement' as defined under TPS 40.
Mr Samec explained that the car parking plan for the premises complied with planning scheme requirements in terms of car bay numbers and accessibility.
The car parking area at the rear of the premises would be remotely controlled by a sliding gate operated from the karaoke lounge, thus discreetly managing the arrival and departure of vehicles and preventing access in the event of the carpark being full.
Surrounding commercial properties, including those on the corner or otherwise fronting Coolgardie Street, also provide customer parking. Mr Samec was of the opinion that regardless of which property was concerned, customers are not attracted to travel further down Coolgardie Street into the residential area. Rather, it is more convenient to arrive and depart from all these commercial premises via Albany Highway.
The high traffic volumes using Albany Highway are a far greater adverse influence on the amenity of the area than the proposed karaoke lounge and its very small traffic generation potential, according to Mr Samec.
The karaoke lounge is a relatively low key land use that would operate in an unobtrusive manner without disturbance to its neighbours.
Mr Samec noted the concern expressed by the respondent's witnesses as to the overlap of afternoon business hours. He advised that the level of activity of the karaoke lounge would likely be very low until evening and that the applicant would be prepared to adjust the lounge operating hours to commence at 5 pm rather than 3 pm.
Mr Samec advised of his experience of a karaoke lounge in Northbridge. He observed that most customers were Asian, well dressed and well mannered. Customers appeared to like to socialise and participate in musical activity rather than focus on drinking.
Mr Samec concluded, on the basis of his evidence and that of the acoustic assessment, that the proposed use would be appropriately located in the 'Commercial zone'.
Joint expert witness statement of acoustic engineers
Mr George and Mr Della Gatta prepared a joint witness statement outlining the areas of agreement and disagreement in regards to the acoustic assessment of the proposed karaoke lounge.
Of significance, the following matters were agreed:
•Future mechanical services should be addressed by the applicant engaging an acoustic consultant to review the proposed mechanical design and submit the report to the Council.
•Car door noise and patron noise in the carpark will comply with the Regulations.
•Subject to the installation of an appropriate sound limiter to the in house sound system, and subject to installation of an additional insulated stud wall on the inside of the karaoke lounge wall which adjoins the commercial premises at No 1127 Albany Highway, the effect of music and singing on surrounding properties should be within acceptable limits.
The only area of disagreement between the parties concerned an interpretation of reg 7(1)(a) of the Regulations. In this case there is a possible burden on a proponent to put extra limitations on noise generated from future mechanical plant so that the overall combined noise level does not exceed acceptable levels at any noise sensitive premises.
Both witnesses advised the Tribunal that this area of disagreement was a matter of interpretation of the Regulations for future circumstances of plant installation and had no substantial bearing on the conditioned agreement of the experts as to the compliance of the plans for the proposed karaoke lounge with the requirements of the Regulations.
Draft conditions of approval
Draft conditions of approval were prepared by the respondent.
The conditions were agreed between the parties with minor amendments, most notably that the hours of operation should be varied such that the karaoke lounge should not open before 5 pm.
Analysis
The issue to be examined in this review is whether the proposed karaoke lounge will have an unacceptable adverse impact on the amenity of the locality because of possible nuisance associated with amplified music, carpark noise, antisocial behaviour and traffic.
The applicant's submission relied heavily on an acoustic analysis of the proposal that was able to demonstrate that, subject to some practical modifications, the operation of the karaoke lounge and the use of its carpark would comply with the Regulations.
The analysis concluded that noise generation levels were compliant with the Regulations in relation to noise sensitive premises in the surrounding commercial area and the nearest noise sensitive residential premises.
The respondent's expert acoustic engineering witness agreed, with qualification, that the proposal would be able to comply with the Regulations.
It was pointed out, however, that circumstances of noise associated with parking on the street and street traffic noise are not matters covered by the Regulations.
The applicant showed that the proposed development was able to comply with planning scheme provisions for car parking on the land without reliance on other parking provisions on adjacent streets or on other commercial premises.
It was acknowledged, however, that town planning scheme car parking standards will not always be sufficient to meet every need and that from time to time, as with any commercial premises, there will be some occasions when extra customer cars will need to be accommodated.
The respondent was of the opinion that cars would park on Coolgardie Street generating late night noise and nuisance in or close to the residential area. Traffic movement constraints at the highway intersection would force some cars to filter through otherwise quiet residential streets.
The Tribunal considered that there was some possibility of customers parking in Coolgardie Street. Some may also very likely park on highway frontage parking bays on adjacent commercial premises.
It was apparent from the viewing of the site that, in practice, parking choice was abundant, especially if the demand for parking occurs after normal business hours when most commercial premises are vacated.
It could be speculated that, for example, on an especially busy night 15 cars might be present at one time, of which some would be parked at the rear of the karaoke lounge premises, a few on other highway frontage parking and maybe up to, say, five cars on Coolgardie Street parked as close as possible to the highway for optimum convenience. Such a scale and disposition of car parking is, in the opinion of the Tribunal, still unlikely to cause any substantial disruption to the amenity of the residential hinterland of Coolgardie Street. In this regard, the Tribunal also accepts the applicant's contention that traffic noise from Albany Highway is, in any case, the more likely significant contributor to the ambient noise levels of the area.
The noise nuisance associated with the occasional parking of such a small number of cars in Coolgardie Street near the highway corner is likely to be insignificant against the prevailing traffic noise of the highway.
The respondent also advised that, because of a proposed highway median strip prohibiting a right turn at Coolgardie Street, some customers leaving the karaoke lounge would drive through the residential area rather than exit via the highway. The Tribunal notes that this would then appear to be a problem common to all the commercial premises on the highway and that perhaps it is an issue to be addressed as a more general concern to protect the amenity of the residential area. As it relates to the karaoke lounge proposal and its modest scale of operation, the numbers of cars opting for such a route is likely to be very small and not, in the Tribunal's view, significant in terms of disrupting residential amenity.
The respondent expressed concern as to the possibility of antisocial behaviour associated with the proposed sale of liquor at the karaoke lounge. The Tribunal accepts that there is always an element of risk where liquor and entertainment attract a concentration of people. In this case, however, the numbers of people involved are relatively small and there appears not to be any immediate venue of conflict or nuisance, unless there was motivation for troublemakers to proceed into the residential area. This does not seem likely and there is otherwise no reason to believe that the karaoke lounge should be associated with a high risk of antisocial behaviour. The Tribunal concludes that, whilst a risk of antisocial behaviour is always present, it is not such that it should preclude the function of such a limited scale entertainment facility in a highway commercial area.
Both parties accept that there should be a plan for the operation of the karaoke lounge to provide for management of, amongst other things, the possibility of unruly behaviour.
Question arose as to the suitable location of an activity such as a karaoke lounge. The respondent's witnesses generally agreed that it would be more appropriately accommodated in the regional centre.
The Tribunal notes this observation, but also observes that the highway is, in fact, featured by other late night facilities such as fast food outlets, restaurants and hotels. Under TPS 40, the prevailing 'Commercial zone' along the highway does not preclude such a use in the generic context of a 'Public Amusement'. Accordingly, the Tribunal is inclined to accept that a karaoke lounge could reasonably be allowed, subject to satisfactory compliance with town planning scheme provisions and the requirements for orderly and proper planning.
On the evidence before the Tribunal these provisions and requirements appear to be satisfactorily met.
Conclusion
Based on the preceding analysis, the Tribunal concludes that application for review of the respondent's decision to refuse the development application to change the use of the premises at No 1129 (Lot 48) Albany Highway, Bentley to accommodate a karaoke lounge should be upheld. Accordingly, the respondent's decision should be set aside and the development application should be conditionally allowed.
Orders
1.The application for review is allowed.
2.The decision of the respondent made on 23 August 2011 to refuse development approval of No 1129 (Lot 48) Albany Highway, Bentley to accommodate a karaoke lounge is set aside and a decision is substituted that development approval is granted subject to the following conditions:
i)Before the approved use commences, a detailed management plan for operation of the karaoke lounge is to be submitted for approval of the Executive Property Assets and Economic Development, City of Canning. The management plan shall address, but not be limited to the following:
a)measures to manage unruly behaviour of patrons;
b)complaints procedure;
c)use of security cameras;
d)entry and exit of patrons from the premises; and
e)use of external lighting.
The detailed management plan, as approved by the Executive Property Assets and Economic Development, City of Canning shall be implemented at all times.
ii)The hours of operation are limited to 5 pm to midnight Tuesday to Saturday, and 5 pm to 10.00 pm Sunday.
iii)Occupation of the premises is restricted to a maximum of 36 persons (including staff) at any time.
iv)Prior to commencement of the approved use, nine car parking spaces together with their access aisles are to be constructed and thereafter maintained in accordance with the relevant Australian Standards and City of Canning specifications.
v)The front building setback area shall have no other use than car parking, accessways and landscaping treatment, unless otherwise approved by the City of Canning. Bins, bulk bin storage areas or any storage of waste material shall not be located within the front building setback area, but otherwise (where required) shall be contained within the subject lot.
vi)The proposed development is to comply in all respects with the approved plans.
vii)Prior to commencement of the approved use, the applicant shall submit for approval by the City of Canning a noise management plan prepared by an accredited acoustic engineer, which shall detail noise attenuation measures sufficient to ensure compliance of the approved use with the Environmental Protection (Noise) Regulations 1997 (WA). The noise management plan as approved by the City of Canning shall be implemented at all times.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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