Wesbrel Pty Ltd and City Of Nedlands
[2012] WASAT 39
•27 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WESBREL PTY LTD and CITY OF NEDLANDS [2012] WASAT 39
MEMBER: MR J JORDAN (MEMBER)
HEARD: 16 NOVEMBER 2011 AND
17 NOVEMBER 2011
FINAL DOCUMENTS FILED 25 NOVEMBER 2011
DELIVERED : 27 FEBRUARY 2012
FILE NO/S: DR 179 of 2011
BETWEEN: WESBREL PTY LTD
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning Development Refusal Proposed new two storey building for child care centre Residential zoning Existing child care centre two lots to the north Noise Parking Traffic Impact on local amenity Planning bulletin requirements
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 3.3, cl 6.4.2, Sch 3, Table 1
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)
Result:
Application for review is dismissed
Decision of respondent to refuse application for planning approval for child care centre is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr S Allerding (Town Planner as agent)
Respondent: Mr C Slarke
Solicitors:
Applicant: Allerding & Associates (Town Planners)
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Ienco and City of Melville [2007] WASAT 56
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of the proposed development of a two storey child care centre to accommodate 50 children and seven staff on a residential zoned lot at No 78 Brookdale Street, Floreat.
The Tribunal found that the proposed development was for a building of compatible scale for the locality and provided sufficient parking bays onsite and nearby on Brookdale Street. The Tribunal further found, however, that there would be an adverse and unreasonable overall effect on local amenity because of the additional noise, traffic and parking impacts from the development of the proposed child care centre at No 78 Brookdale Street, together with the impact of the existing child care centre at No 82 Brookdale Street. The site was found to be an inappropriate location for an additional child care centre.
The Tribunal dismissed the application for review and reaffirmed the refusal of the application for planning approval for the child care centre.
Introduction
These proceedings involve an application brought by Wesbrel Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Nedlands (City or Council) to refuse an application for approval to develop a two storey child day care centre at No 78 Brookdale Street, Floreat (site). The site is owned by Wesbrel Pty Ltd.
Site and locality
The site is a trapezium with a frontage of 26.15 metres to Brookdale Street at the western end, and a rear boundary of 10.06 metres. The site has a northern side boundary perpendicular to the frontage of 45.46 metres and a southern boundary of 48.28 metres at an angle to the frontage. The area of the site is 822 square metres and falls gently from approximately RL 16 metres at the southwest to RL 15 metres at the northeast corner. There is currently a single storey brick, weatherboard and tile house on the site.
Adjoining the site to the north is a single storey single dwelling and adjoining that lot, two lots to the north of the site at No 82 Brookdale Street, is a single storey child care centre for 42 children in a converted single dwelling with parking in the front setback. North of the existing child care centre are lots containing single dwellings. Adjoining the site to the south is a house on the corner of Brookdale Street and Gunn Street, a short street of approximately 800 square metre lots with single houses, two of which back onto the side boundary of the site. To the east, parallel to Brookdale Street, is Rosedale Street, also with lots of about 800 square metres each containing single dwellings, one of which has a common rear boundary with the site. In total, the site shares a common boundary with six lots, although only at a single point for two of these lots.
Brookdale Street is a district distributor road. One hundred and fifty metres south of the site and 100 metres south of Gunn Street is the traffic light controlled intersection of Brookdale Street and Underwood Avenue, which is classified as 'other regional road' under the Metropolitan Region Scheme (MRS). To the west of the site, on the opposite side of Brookdale Street, is the site of the former Perry Lakes Athletic Stadium. This is currently being redeveloped for about 600 residential dwellings.
Planning framework
The site is zoned Urban under the MRS. The site is zoned Residential under the City of Nedlands Town Planning Scheme No 2 (TPS 2) with a density coding of R12.5. Lots adjoining to the north, south and east are also zoned Residential.
Under TPS 2, a 'child day care centre' (child care centre) is listed as an 'AA' use in Table 1 Use Class Table. Clause 3.3 of TPS 2 describes an 'AA' use as follows:
'AA' a use that is not permitted unless approval is granted by the Council.
Clause 6.4.2 of TPS 2 sets out matters to be considered when determining an application for an 'AA' use. These include:
(a)the nature and intensity of the proposed use or development will not detrimentally affect the locality in terms of its environmental impact by way of its hours of operation, illumination, emission of any kind and the effect on any use or development within the locality;
(b)the plot ratio, site coverage, setbacks, height, landscaping and parking provisions are in keeping with the general character of the locality;
(c)the form, layout, appearance and material of any building is in keeping with the existing character of the locality;
(d)the vehicular and pedestrian access, including on-site circulation and provision for deliveries[,] will not create any danger;
(e)the vehicle flows to and from the subject land will not be disruptive to existing traffic movements or circulation patterns;
(f)that any traffic generated must be capable of being accommodated within existing streets;
(g)that the development or use will not place excessive loads on existing or projected essential services;
(h)the proposed development or use is necessary to service the needs of the district's residential population and is otherwise generally in keeping with the Council's Town Planning intentions for the locality;
(i)The desirability or preserving (or replacing) existing trees and other vegetation contributing to the amenity or significan[ce] of the locality[; and]
(j)any other matter considered relevant by Council.
TPS 2 does not include any specific development requirements for a 'child day care centre', including within Sch 3 of TPS 2 which is concerned with car parking. The City does not have a local planning policy in operation to guide the development of child care centres.
In August 2009 the Western Australian Planning Commission (WAPC) published WAPC Planning Bulletin 72/2009 'Child Care Centres' (CCC bulletin). The CCC bulletin states at cl 1:
This planning bulletin outlines the revised child care centre guidelines and aims to:
…
(b)outline a consistent policy approach to planning for child care centres; and
(c)advise of planning considerations in relation to the location and development of child care centres.
At cl 3.2 the objectives of the CCC bulletin state:
The objectives of this policy are to:
a)locate child care centres appropriately in relation to their surrounding service area;
b)minimise the impact a child care centre has on its surrounds, in particular on the amenity of existing residential areas;
…
The CCC bulletin goes on to address:
•supply and demand;
•location;
•site characteristics;
•design;
•traffic;
•noise; and
•need/demand.
The proposed building is of a residential nature within a residential zone and the applicant stated that consideration had been given to the Residential Design Codes of Western Australia (2010) (Codes). The submission was made that the development was fully compliant with the Codes, with one exception relating to the setback to a proposed acoustic fence treatment, adjacent to the southeastern boundary of the site.
Proposed development
The development proposal before the Tribunal was for the demolition of the existing single dwelling on the site and the construction of a two storey child care centre. With respect to the operations of the child care centre, the applicant sought approval for:
a)provision of services for a maximum of 50 children;
b)the children to be aged from 3 years to 6 years;
c)ten onsite car bays, including one car bay for disabled parking at the front of the lot, with one centrally located double width crossover to Brookdale Street;
d)operating hours of Monday to Friday 7 am to 6 pm; and
e)a maximum of seven staff members.
Mr Robert Steele, of Wesbrel Pty Ltd, said he and his wife would operate the child care centre and they also operated the child care centre at No 82 Brookdale Street, in leased premises, which was for 42 children up to 3 years of age. Mr Steele said the proposed child care centre would share a cook and a manager from No 82 Brookdale Street, and the two minibuses kept at No 82 Brookdale Street would also be available for the proposed use. The applicant stressed that there was no absolute reliance on the presence of the existing child care centre to operate, and the proposed child care centre could exist as a separate use.
The child care centre building would be set back 9 metres from the front boundary with three car parking bays perpendicular to the northern boundary and three car parking bays perpendicular to the southern boundary. Four car parking bays, including the one for disabled parking, would be situated perpendicular to the front of the building with the upper level of the building above the parking spaces.
The proposed building would be designed so that there would be one entrance central to the frontage of the building. The northern wall of the building would extend to within about 7 metres of the rear boundary at a setback of 2.4 metres from the northern boundary and would have highlight windows at the upper level. Between the building and the southern boundary would be veranda areas with openings to the ground floor. At the rear of the building would be a sandpit with shade sail covers. Inside the building, on the ground floor, there would be a foyer, an office, an open play area and toilets. From the ground floor going up to a landing and then returning to go up to the first floor would be a ramp. At the upper floor would be a rectangular room across the front of the building, another rectangular room down the length of the building with computer desks adjacent to one wall and further toilets at the rear.
The refusal
The Council refused the application for planning development for the child care centre for the following reasons:
1.It does not satisfy the conditions and standards of clause 6.4.2 of the Town Planning Scheme No 2;
2.It will increase existing traffic and noise impacts above the desirable levels for the residential locality; and
3.It will have an overall adverse impact on the amenity of surrounding residents.
Issues
The issues identified by the parties in this matter include elements that overlap. The identified issues can be expressed as follows:
1)Whether the development will generate undesirable levels of noise.
2)Whether there is adequate car parking for the traffic generated by the development.
3)Whether the development gives rise to an unacceptable traffic safety risk.
4)Whether the amenity of the locality will be adversely affected by the additional traffic and parking demand generated by the development.
5)Whether the cumulative effect on amenity caused by the existing child care centre at No 82 Brookdale Street and the development of the proposed child care centre at No 78 Brookdale Street will be adverse and unreasonable.
6)Whether the proposed development has had regard to the CCC bulletin.
Discussion
Issue 1 whether the development will generate undesirable levels of noise
The applicant had a noise expert prepare a noise impact assessment in support of the application for planning approval. The respondent did not have a noise expert report on the proposed development.
The noise expert examined the design and orientation of the building and concluded that the proposed development could be made to satisfy the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). Where the Noise Regulations were exceeded, the acoustic report made specific recommendations. The acoustic report required that a 1.8 metre high masonry fence be constructed around the perimeter of the site behind the building line. In addition, it recommended that a 2.3 metre high, 15 metre long acoustic barrier be built, set back 0.5 metres from the common boundary with No 6 Gunn Street to the south. The noise barrier would be a 1.3 metre high open frame on which would sit a solid section which would be vertical to 1.8 metres above ground level, level with the top of the masonry boundary fence, then the noise barrier would tilt backward away from the boundary to a height of 2.3 metres above ground.
The acoustic report also recommended 'general practices' to 'minimise the overall noise impact'. This was said to accommodate planning requirements and to encourage minimisation of the overall noise impact. The requirements encouraged included:
•staff and parents are to be advised not to arrive at the site prior to 7 am in order to minimise disturbance outside of operating hours;
•no music to be played outside;
•fixed play equipment is to be of plastic construction, alternatively, any hollow metal equipment would need to be filled with expanding foam or sand to deaden the noise;
•hard floor finishes (for example, concrete or brick paving) are to be minimised in the play areas and preference given to rubber matting and synthetic grass; and
•duration of outdoor play is to be minimised to reduce the noise impact on residents.
The applicant said it would delete a tricycle track shown on the application plan between the northern wall of the building and the common boundary of the site with No 80 Brookdale Street to the north. The applicant said that outdoor play would be restricted to 8 am 11 am and 2 pm 5 pm; that usually no more than 20 children would be outside at any time, and that activities would be programmed and would only occur in suitable weather.
The respondent said that, if the child care centre were allowed, a limit of three hours per day for outdoor play would be acceptable to reduce the impact on the amenity of the neighbours.
Mr Benjamin Doyle, a planning consultant called by the respondent, cited Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (Land Alliance) at [39]:
This Tribunal similarly agrees with the principle that compliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
In summarising the respondent's position, counsel for the respondent said, at T:115, 17.11.11:
The Tribunal in that case [Land Alliance] ultimately determined that there was not a need to find definitively whether or not the proposed centre would comply with the regulations, because for planning purposes it decided the issue was not in compliance with the regulations, but rather, what is the amenity impact? The Tribunal found in that case that the amenity impact of the noise associated with the centre would be unacceptable, and it's apparent that in breaching [sic] that view, the Tribunal took into account the number of immediately adjacent residences and the fact noise would be generated early in the morning from 7.00 to 7.30. That's apparent from page 13, paragraph 45 at least.
Noise modelling simply cannot adequately capture the amenity impact of noise from a child care centre. We have the benefit of the evidence of Kevin and Ian Johnson, who say that noise from the existing centre is very disruptive to them. Examples they have given include children crying, blowing whistles, doors slamming, riding bikes next to the fences and so on.
It's those ongoing intrusive and irritating noises which in particular, necessarily, we say, noise which is associated with child care centres not constantly, not all day, but on a reasonably regular basis, you expect that it's inevitable those type of noises will be produced those type of noises are likely to adversely affect amenity, as will the length of the general play noise from children outside. That being the case, we say the applicant's evidence on noise isn't sufficient to demonstrate the noise will not have adverse amenity impacts.
Mr Allerding, who appeared for the applicant, cited Ienco and City of Melville [2007] WASAT 56 (Ienco) which at [76] states:
The concern about noise, which is common to child care centre cases, must largely fall away when regard is had to the following matters: first, the fact that such uses are contemplated in residential areas (see the discussion above); secondly, the particular recommendations of the noise experts here; thirdly, the related proposed acoustically ameliorating conditions (accepted by the applicant); and finally[,] to the appropriate level of sensitivity in terms of residential amenity concerning child care centre noise that emerges from the approaches of the tribunals and courts referred to above.
Mr Stout, a neighbour who lives to the rear of the site, provided a witness statement for the applicant stating that he was not affected by the existing child care centre and had no objection to the proposed development.
Mr Kevin Johnson who lives at No 80 Brookdale Street, and who appeared as a witness, said he was affected by the noise of the activities at the child care centre at No 82 Brookdale Street. Mr Ian Johnson, his adult son who lives in the same house, also gave evidence of disturbance by noise from the existing child care centre. The most criticism was of everyday noise and particularly from vehicle movements starting about 7 am, and the associated engine starting, door noise and verbal exchanges between parents and children. Mr Kevin Johnson said he had constructed a 1.8 metre high brick wall around the front yard at No 80 Brookdale Street in an attempt to screen traffic noise from Brookdale Street, and had shifted bedrooms to escape early morning noise from No 82 Brookdale Street. When questioned, the Johnsons acknowledged that the design of the proposed child care centre would shield them from noise in the play areas to the south of the building.
The Tribunal has noted that the minimum standards of the Noise Regulations can be achieved. The Tribunal is concerned, however, that staff will have to be at the site at least by 7 am, because that is the time when children will commence arriving and associated noise will commence at that time.
The Tribunal is also concerned that the site narrows to the rear and three sides of the existing building are to be utilised as outdoor play space. The applicant did indicate that outdoor play times would be restricted to three hours in the morning and three hours in the afternoon, but the applicant was quite vague on any program for the children and how outdoor spaces would be utilised other than to say there would be specific organised tasks, but when these might occur appeared to be random within the six hours allocated.
There was no evidence on the outdoor play times for the existing child care centre at No 82 Brookdale Street. The evidence was that vehicles associated with the existing centre began arriving before 6.48 am. The parties listed as a separate issue the cumulative impact on local amenity of two closely located child care centres. The existing local amenity includes any impact from the existing child care centre. It might be argued that the proposed development would be consistent with that existing amenity. The Tribunal has formed the view that noise from the proposed child care centre would be apparent and would be an irritant. It might be that, if the proposed child care centre was the only nonresidential use in the locality, the noise impact might be tolerable. The Tribunal has formed the view, however, that the additional noise generated by the proposed child care centre would result in an undesirable level of noise.
Issue 2 whether there is adequate car parking for the traffic generated by the development
TPS 2 has no standards for the provision of car parking bays at a child care centre. The CCC bulletin at cl 3.5 states that 'as a general rule, the minimum parking requirements for a child care centre, including staff, would be one space per five children'. Clause 3.5 also states that this might be varied having regard to street parking and public transport.
The proposed child care centre is for 50 children and seven staff, and the design would include an onsite parking area in the front setback of nine car parking bays and one disabled car parking bay. For the purpose of the hearing the parties referred to the child care workers as 'staff' and, collectively, to the parents, friends or relatives who brought the children to the site and picked them up as 'carers'.
It was common ground that in Brookdale Street there would be available a total of 41 kerbside car parking bays between Gunn Street and Alderbury Street to the north. Fourteen of these car parking bays would be on the opposite side of Brookdale Street more than 100 metres north of the site. This number of available car parking bays does not include the bays to be removed to accommodate the junction of the new road to the Perry Lakes subdivision and a slip lane serving that road opposite the site and the child care centre at No 82 Brookdale Street.
Mr Steele put into evidence a table showing the total number of individual children signed in and out of the child care centre at No 82 Brookdale Street in half hour periods between 7 am and 6 pm in the week of 25 January 2010 to 29 January 2010 (Exhibit 15). The smallest number was 62 and the largest 86. Mr Steele said that the number of vehicles arriving was usually less than the number of children because there was often more than one child per car, and some arrived by foot.
Mr Donald Veale, a traffic and transport consultant called by the respondent, included at Appendix B of his witness statement a table headed 'Raw Survey Data' which listed, for a single day, vehicles arriving with carers and staff, and the time the vehicles arrived and departed from the child care centre at No 82 Brookdale Street between 6.48am and 9.30am.
In their joint statement, Mr Veale and Mr Geoffrey Miles, a consultant engineer called by the applicant, included a table compiled from Mr Veale's data showing the length of time vehicles stayed and where they parked. Having regard to this table and the information provided by Mr Steele, it was agreed between the experts that, for the existing child care centre, the peak parking requirement would be four carers' cars, seven staff cars and two minibuses. The proposed child care centre, having 50 children instead of 42, might require an additional carers' car parking bay, but no bay for a minibus.
On the basis of the planning documents and the evidence of the experts, the Tribunal has concluded that, in respect of Issue 2, the proposed development has available sufficient car parking bays onsite and on the street. Staff might only care to park 100 metres away on the other side of the road if specifically directed, but 27 car parking bays on the east side of the road would be a sufficient number, even if two child care centres were competing for the closest bays.
Mr Doyle pointed out that car parking bays 1 and 9, adjacent to the front boundary of the site (the plans do not include a bay number for the disabled car parking bay), could not be turned into in one movement and would require reverse parking. The respondent also pointed out that in car parking bays 3 and 7, perpendicular to the side boundaries, wheel stops had been placed to prevent damage to fencing. This meant that if a vehicle drove forward into these car parking bays, the rear overhang would block bays 4 and 6 respectively. Cars would have to reverse in to avoid this conflict. The car parking bays, however, remained available for use. The manoeuvring to park in those bays might cause other difficulties, as discussed in the next issue, but would not cause a shortfall in the number of car parking bays available to the proposed use.
Issue 3 whether the development gives rise to an unacceptable traffic safety risk
Brookdale Street is a district distributor road carrying 14,000 vehicles per day. Mr Veale put into evidence cross sections of Brookdale Street (Exhibit 17). Adjacent to the site the cross section of Brookdale Street comprises, from west to east, a verge with footpath, a 2.6 metre wide car parking bay, a 1.3 metre wide cycle lane, a 3.1 metre wide traffic lane, a 1.6 metre wide median painted on the road surface, a 3.1 metre wide traffic lane, a 1.3 metre wide cycle lane, a 2.5 metre wide car parking bay and then, in front of the site, a verge and a footpath. The proposed slip lane for the entrance road into the Perry Lake subdivision would replace the western 2.6 metre wide car parking bays. A significant consideration is that there is a single carriageway for traffic in each direction.
Mr Miles put into evidence (Exhibit 16) a diagram of vehicle tracking paths, showing where vehicles might wait to turn right into the site and how through vehicles might manoeuvre around a vehicle waiting to turn.
There was no dispute that a vehicle from side to side was about 1.8 metres wide. If a right turning vehicle pulled hard to the eastern edge of the median, Exhibit 17 shows that the passing vehicles would only move marginally into the cycle lane to pass. A bus would encroach more into the cycle lane, as would a through vehicle passing a vehicle waiting to turn right that was only partly within the area of the median.
It was common ground that it was best that vehicles did not use the cycle lane. It was also agreed by the experts that a vehicle entering the slip lane might be viewed as turning left to Perry Lakes subdivision, when it was only manoeuvring to pass a vehicle waiting to turn into the site. This would increase the risk of potential collision with a vehicle turning out of the Perry Lakes subdivision that had misinterpreted a situation. Vehicles waiting to turn right into the child care centre at No 82 Brookdale Street, and waiting to do a Uturn to use a parking bay on the eastern side of the road, would also cause similar manoeuvring by through vehicles. Mr Miles considered that the risk presented would be low but it would be present.
The experts also agreed that a vehicle waiting to turn left into the site would block the southbound carriageway.
As commented above, car parking bays 1 and 9, adjacent to the front boundary of the site could only be used by a vehicle reversing into the car parking bay and vehicles parked in car parking bays 3 and 7 would block access to other car parking bays if cars were not reverse parked. It was common ground that vehicles entering and leaving the car park, whether reverse parked or otherwise, would require a three point turn, either to enter a car parking bay or when leaving, to ensure that they exited in forward gear. Vehicles waiting to either enter or leave the site might queue in the crossover, which could accommodate up to two vehicles, but these vehicles would block the footpath across the front of the site.
Mr Miles referred to the analysis of the times vehicles arrived and left, referred to above, and said that there would most likely always be at least one car parking bay available onsite, and that spacing of visits by carers would result in little or no waiting to enter. He was of the view that vehicle movement into and out of the site would be no different than for any other lot along this section of Brookdale Street.
Mr Veale's concern was that there was no capacity for any delay, caused by either a carer remaining on the site, or because of reduced opportunity to turn into or out of the site. The opportunity to turn into or out of the site would be affected by through traffic on Brookdale Street, or by traffic queued back past the site from the traffic lights to the south. Mr Veale said that from his survey there would be 11 movements into and 11 movements out of the car park in a half hour peak period. In his opinion, the need for a wait of up to two minutes to find a gap in through traffic would be sufficient to ensure that the risk for traffic conflict was increased. The applicant also pointed out that on the Thursday of Mr Steele's survey, a larger number of children arrived. This, it was said, would increase the risk of traffic conflict.
Mr Veale raised, as a safety concern, the need for carers and children to share the same area as manoeuvring vehicles at the front of the site. He said that, ideally, there should be a separate access for the children. Mr Miles was of the opinion that the circumstances were the same as in most car parks, and with normal care the safety risk was minimal.
There was discussion between the experts on whether the onsite car parking bays were best used by staff or carers. If staff parked onsite there would still be car parking bays for carers, and less danger from manoeuvring cars. Carers would have to make more use of onstreet parking competing with the carers and staff attending the child care centre at No 82 Brookdale Street.
The Tribunal notes that the assumptions on traffic movement were based on the 'snapshot' observations of the traffic experts. For there to be little or no risk of vehicle conflict and compromising of safety, the vehicle movements and the times associated with the movements, and of the period carers remained on the site, would either have either remain as predicted or improve. The Tribunal was concerned that these predictions were based, in part, on averages, and that there was the complicating factor that the configuration of the proposed car park at the front of the child care centre was predicated on particular and precise behaviour by drivers, which not unreasonably can be considered to have an unpredictable element.
The Tribunal considers the proposed development would increase the traffic safety risk. The Tribunal notes that this risk is in addition to what will become a similar risk at No 82 Brookdale Street when the slip lane and access road to the Perry Lakes subdivision are completed. The addition of the risk associated with the proposed development is considered by the Tribunal to therefore give rise overall to an unacceptable safety risk.
Issue 4 whether the amenity of the locality will be adversely affected by the additional traffic and parking demand generated by the development
The Tribunal has formed the view that the amenity of the locality would be adversely affected by the additional traffic and parking demand generated by the development. Additional vehicles that would not otherwise be so would be attracted to the immediate vicinity of the site.
The Tribunal concluded above that there would be available sufficient car parking bays onsite and on the adjacent street to accommodate the demand for parking generated by the staff and carers using the proposed development. The Tribunal notes that the proposed child care centre, and the existing child care centre at No 82 Brookdale Street, would essentially be competing for the same kerbside parking bays because of their proximity to each other. Mr Ian Johnson, who lives at No 80 Brookdale Street which would be between the two child care centres, said he occasionally required a street parking bay for his work vehicle and would prefer it to be at the front of his house. A consequence of the increased demand for kerbside parking would be vehicles using bays further to the north of the site bringing with them the noise and disturbance associated with morning parking activity.
Mr Veale estimated that there could be up to 200 vehicle movements per day generated by the proposed child care centre. This number would be barely discernible if simply added to the 14,000 vehicles per day on Brookdale Street. However, the vehicles will be turning into and parking in the car parking bays on, or close to, the site. The stopping and starting of the vehicles, mostly between 7 am 9 am and 5 pm 6 pm, would be discernible to nearby residents. The Tribunal considers car movements additional to those already generated by the child care centre at No 82 Brookdale Street, would have the capacity to create difficulty for vehicles passing through the locality and seeking to enter or leave nearby residences.
Mr Doyle expressed concern that carers might, for convenience, park on verges or across driveways of nearby residences. The Tribunal accepts that, if traffic flows were consistent with the average times identified by the traffic experts and that all drivers behaved in a proper manner, this difficulty need not arise. The Tribunal accepts Mr Veale's submission, however, that the margin for error is slight and any inconsistency in behaviour or vehicle movement patterns would have the potential to be disruptive. While potential variations to behaviour should not be determinative in the circumstances of the proposed development, the Tribunal believes that the potential for an adverse impact on local amenity, particularly in light of the existing child care centre two lots to the north, is very real and is a material consideration.
Issue 5 whether the cumulative effect on amenity caused by the existing child care centre at No 82 Brookdale Street and the development of the proposed child care centre at No 78 Brookdale Street will be adverse and unreasonable
Ms Amanda Butterworth, a planner, was called as an expert by the applicant. Ms Butterworth said that the applicant had demonstrated that the proposed development would comply with the noise regulations and would satisfy the traffic and parking requirements of the CCC bulletin. In addition, she considered that the built form of the locality had no particular character and the design of the proposed building was acceptable.
Ms Butterworth correctly pointed out that the existing amenity was not a typical residential amenity because it included the child care centre at No 82 Brookdale Street and the vehicle movements on Brookdale Street, a district distributor road. She considered that the development of the proposed compliant child care centre would not result in an accumulative adverse impact on the local amenity.
Discussion of the issues above has included comment on the cumulative impact of the proposed child care centre and the existing child care centre at No 82 Brookdale Street. The additional vehicles attracted to the locality because of the proposed use, the effect of their turning movements and parking, and the noise generated, both by the arrival and departure of vehicles and by groups of at least 20 children at a time playing in the confines of the play areas of this site, are all considered by the Tribunal to have an amenity impact on the neighbouring residences.
The Tribunal had no evidence on what arrangements for outdoor play are associated with the child care centre at No 82 Brookdale Street, but it is a reasonable assumption that outdoor play would be occurring on both child care sites at the same time. The Tribunal does appreciate that the applicant has gone to significant trouble to design a child care centre that would have reduced acoustic impact on the house at No 80 Brookdale Street, but the Tribunal believes that the creation of an extended source of noise would result in an adverse amenity impact for the neighbours.
Mr Veale's evidence revealed that vehicles commenced arriving at the child care centre at No 82 Brookdale Street prior to 6.48 am. The Tribunal considers it reasonable to assume this pattern might be experienced at the proposed child care centre, simply because of the opening hour of 7 am. The effect of having vehicles attracted for the purpose of parking and having children disembark being extended over the two child care centre sites is considered by the Tribunal to have the likelihood of an adverse overall impact on neighbouring residences.
A further concern of the Tribunal is that unreasonable traffic complications are considered to arise. This would be the result of the vehicles turning into and out of the site on the single lane carriageway of Brookdale Street, and the slip road being created for Perry Lakes subdivision opposite the site. To have the circumstances repeated within about 40 metres of each other is an undesirable situation.
The site is on a district distributor road, but is still a residential locality in character. Child care centres are most commonly found in residential areas. The Tribunal accepts that there might be a case for a single child care centre, with appropriate conditions, to be accommodated in this locality.
The proposed child care centre will have one less crossover and more landscaping than the child care centre at No 82 Brookdale Street, but the Tribunal has formed the view that, consistent with the appearance of the child care centre at No 82 Brookdale Street, the proposed development will be unambiguously nonresidential.
The Tribunal notes that the eastern side of Brookdale Street comprises a streetscape of domestic front gardens. The Tribunal considers that the addition of the second car park in a front setback, and the presence of parked cars and signs would have an adverse impact on the local visual amenity.
The Tribunal has concluded that, if the proposed child care centre were allowed in addition to the existing child care centre, this would extend the impact of nonresidential activities to affect more dwellings, and, in particular, the house between the two child care centres. The Tribunal considers the cumulative effect on the amenity of the locality would be adverse and unreasonable.
Issue 6 whether the proposed development has had regard to CCC bulletin
This issue is as framed by the applicant. The applicant emphasised that the CCC bulletin was not an adopted policy of either the respondent or WAPC, but was a planning document to be considered in the assessment of the development. The planning experts agreed that the site could be considered as being in an 'inner urban' area, as opposed to an 'outer urban' area, as discussed at cl 2 and cl 3.1 of the CCC bulletin, and was to be assessed accordingly.
The applicant's submission was that the development would be consistent with the policy objectives at cl 3.2 of the CCC bulletin. This was because the child care centre would be appropriately located relative to its service area. The applicant said, and it was not disputed, that there was an under supply of day care places for children in the locality, and the Perry Lakes subdivision would increase the demand. The applicant considered the impact of the proposal on its surrounds was acceptable, as explained in its position on noise, traffic and parking as set out above. The child care centre, it was said, would be a safe and convenient development for children as required by the CCC bulletin.
The applicant said the child care centre would satisfy the design criteria at cl 3.5 of the CCC bulletin. This was because the appearance of the building would reflect contemporary two storey houses in the locality, and was purpose designed for a child care centre. As recommended by the CCC bulletin, the car parking area was at the front of the site and clearly visible, minimum parking standards were met, and use could be made of street parking and public transport in Brookdale Street. Inconsistent with the CCC bulletin, the outdoor play area would be adjacent to dwellings, but the acoustic treatment and controlled play times would make this acceptable.
The 'appropriate location' provisions for a child care centre are at cl 3.3 of the CCC bulletin. The applicant said that the child care centre would be strategically located to provide maximum benefit to the community it serves. This was because, with the child care centre at No 82 Brookdale Street, an overall service of about 100 child care places for children between the ages of zero years and six years would be provided. Child care centres of about this size were said to be now becoming a standard to service a local community. The applicant said the site was not adjacent to commercial, recreation and community nodes and education facilities, as referred to in cl 3.3 of the CCC bulletin, but it was on a commuter route between those facilities and some were within walking distance, such as the Floreat Forum shopping centre 700 metres to the north.
The applicant said, consistent with cl 3.3 of the CCC bulletin, the child care centre would not be on a local access street where traffic and parking might affect local amenity, but was on a distributor road sufficiently distant from the traffic lights to the south to avoid any safety concerns.
Clause 3.4 of the CCC bulletin provides that sites should be of sufficient size and suitable shape to accommodate suitable buildings, play areas and parking. As a general rule, sites should be of a regular shape and greater than 1,000 square metres. The applicant said the CCC bulletin was a guide and discretion should be exercised to allow the development of the proposed child care centre on the irregular shape and smaller lot size of the site because the design, including two storeys, building orientation and acoustic treatments addressed any concerns about impact upon amenity.
The applicant stressed that the CCC bulletin at cl 2 referred to the increased demand for child care services and the shortage of child care places in residential areas where land was valuable. The applicant said this proposal was an opportunity to address that shortage with an acceptable impact on local amenity.
The respondent acknowledged the support for new child care centres found at cl 2 of the CCC bulletin, but went on to refer to the comment in the same section which states 'it is important to emphasise that the need for a service does not justify development in inappropriate locations'. Clause 3.3 of the CCC bulletin states that an appropriate location is crucial in meeting the needs of children and their families, but goes on to state 'it also is crucial in limiting the impact a child care centre may have on surrounding activities and vice versa'.
The respondent's concerns about the impact of the proposed development on traffic and safety are referred to above and include concern that the impact would be exacerbated by the inadequate design of the car park.
The respondent made the comment that 700 metres to the Floreat Forum shopping centre was not easy walking distance, especially when walking with small children and having to drive to commercial, recreation and community nodes and education facilities was in conflict with the CCC bulletin.
The respondent emphasised that the site was less than 1,000 square metres and an irregular shape which resulted in the design having to include additional acoustic treatments, constrained outdoor play areas and an inadequate car park design.
It is apparent to the Tribunal that the applicant has had regard to the provisions of the CCC bulletin. The Tribunal has formed the view, however, from its consideration of the issues above, that the proposed child care centre is in an 'inappropriate location'. This proposed additional nonresidential use would result in an unacceptable overall impact on the 'surrounding' activities in conflict with the objectives of the CCC bulletin.
Conclusion
In respect of Issue 1, the Tribunal formed the view that the additional noise generated by the proposed child care centre, particularly at the commencement of daily activities, would contribute to an undesirable overall noise level in the locality.
The finding in Issue 2 was that onsite and on the nearby roadside there would be sufficient parking for the traffic generated by the proposed use.
In considering Issue 3, the Tribunal formed the opinion that the development would increase the traffic safety risk. This was because of the vehicles attracted to the site, the configuration of Brookdale Street and the manoeuvres vehicles would be required to make entering the site. The traffic safety risk would increase with the construction of the slip lane and access road to the Perry Lakes subdivision opposite the site. This traffic risk would be in addition to the existing risk that would be associated with the child care centre at No 82 Brookdale Street resulting, in the Tribunal's view, to an overall unacceptable traffic safety risk.
In Issue 4, the Tribunal concluded that the addition the proposed development would make to existing traffic and parking demand would result in an overall adverse impact on the local amenity.
Issue 5 was concerned with the cumulative effect on local amenity of the existing child care centre at No 82 Brookdale Street and the proposed child care centre at the site. The Tribunal concluded that the cumulative effect would be adverse and unreasonable.
In the final issue the Tribunal found that the development proposal could be considered to have had regard to the various provisions of the CCC bulletin. The Tribunal concluded from its consideration of the provisions of CCC bulletin, however, that the development site was an 'inappropriate location' for the development of another child care centre.
The Tribunal decided to dismiss the application for review and affirm the respondent's refusal of the proposed development.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse the application for planning approval for a child care centre at No 78 Brookdale Street, Floreat is affirmed.
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 JORDAN, MEMBER
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