WIDGINGTON and SHIRE OF MURRAY
[2005] WASAT 310
•5 DECEMBER 2005
WIDGINGTON and SHIRE OF MURRAY [2005] WASAT 310
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 310 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:556/2005 | 7 NOVEMBER 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 5/12/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | KYLIE WIDGINGTON SHIRE OF MURRAY |
Catchwords: | Home occupation (hairdresser) Refusal House constructed with room for use Impact on local traffic Impact on locality Hairdresser use in residential area Access to similar facility Hours of operation |
Legislation: | Shire of Murray Town Planning Scheme No 4 State Administrative Tribunal Act 2004 (WA), s 87 Town Planning and Development Act 1928 (WA) |
Case References: | Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WIDGINGTON and SHIRE OF MURRAY [2005] WASAT 310 MEMBER : MR J JORDAN (MEMBER) HEARD : 7 NOVEMBER 2005 DELIVERED : 5 DECEMBER 2005 FILE NO/S : DR 556 of 2005 BETWEEN : KYLIE WIDGINGTON
- Applicant
AND
SHIRE OF MURRAY
Respondent
Catchwords:
Home occupation (hairdresser) - Refusal - House constructed with room for use - Impact on local traffic - Impact on locality - Hairdresser use in residential area - Access to similar facility - Hours of operation
Legislation:
Shire of Murray Town Planning Scheme No 4
State Administrative Tribunal Act 2004 (WA), s 87
Town Planning and Development Act1928 (WA)
(Page 2)
Result:
Application allowed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr Matthew Selby (As agent)
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 In 2004, Ms Kylie Widgington obtained approval for and built a house at No 53 Murray Waters Boulevard, South Yunderup. The plans for the house included a front room with a toilet and a basin and a door direct to the front veranda. There was nothing on the plans other than the word "studio" to indicate the use to be made of this room.
2 Ms Widgington is looking for the opportunity to use the front room to cut the hair of one or two persons per hour while her children are at school. The Shire of Murray advised Ms Widgington that should she wish to conduct a home occupation hairdressing business she would require town planning approval. When Ms Widgington made an application for planning approval it was refused by the Council.
3 The Council is concerned that vehicles attracted to the use would disrupt traffic on Murray Waters Boulevard and that a hairdresser is better located in a commercial centre as the use will have an adverse impact on a residential area.
4 Ms Widgington's home is located in South Yunderup, which is on the south side of the Murray River near to where it enters Peel Estuary. South Yunderup Road is the only road providing access into and out of South Yunderup from the junction with Pinjarra Road at Ravenswood. The comparative isolation of the locality means there is only a limited customer catchment. Having regard to the scale of activity, the limited hours of operation and the on site parking available, the Tribunal has concluded that the home occupation hairdressing salon can be supported. Home occupations are subject to an annual licence and so there is in place a mechanism to monitor the manner in which the home occupation is carried out.
5 A conditional approval has therefore been granted for this use.
Application
6 This is an application by Ms Kylie Widgington (applicant) for review of the refusal by the Shire of Murray (respondent) to grant planning approval for a home occupation – hairdressing salon, at No 53 Murray Waters Boulevard, South Yunderup (subject land).
7 The subject land is on the east side of Murray Waters Boulevard and has an area of 2035 square metres. After receiving the necessary building
(Page 4)
- licence the applicant completed the building of the house on the land in December 2004. The house includes a front room of some 19.5 square metres in which are a toilet and a hand basin. This room has access from the front veranda but no access from within the house. Between the road and the garage, adjacent to the northern boundary, is a 6 metre wide drive-way. From this driveway, curving around in front of the house and back to the street is a drive-way of about 3 metres width.
Planning frame-work
8 The subject land is zoned Residential with a density coding of R5 and is one of a row of similarly sized lots that extend the length of the east side of Murray Waters Boulevard. On the west side of the street the lots are within the Canal Zone and back onto a canal developed as part of Murray Waters.
9 The respondent's Town Planning Scheme No 4 (TPS 4) states at Appendix 1 that a "home occupation":
"Means a business carried on with the permission of the responsible authority within a house or the curtilage of a house that:
(a) does not cause injury to or prejudicially affect the amenity of the neighbourhood including (but without limiting the generality of the foregoing) injury or prejudicial affection due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, or waste products;
(b) does not entail the employment of any person not a member of the occupier's family except in the case of a professional person;
(c) does not occupy an area greater than 20m²;
(d) does not require the provisions of any essential service main of a greater capacity than normally required in the zone in which it is located; and
(e) is restricted in advertisement to a sign not exceeding 0.2m² in area."
10 In Table No 1 – Zoning Table of TPS 4 a home occupation has the designation "AA" in the Residential zone which means it is a use that is
(Page 5)
- only permitted at the discretion of the responsible authority. The proposed use was advertised and no submissions were received.
11 In January 1992 the respondent adopted its policy PP7 "Home Occupation Permits" (policy). The policy repeats the definition from TPS 4 and sets out the requirements for making an application for a home occupation permit. Clauses 5 and 6 of the policy state:
"5 In considering an application for a home occupation, the Council may have regard to the following matters –
5.1 the nature of the proposed business and its likely effect on properties within the neighbourhood;
5.2 the need for such a business by the community within the locality;
5.3 the availability of alternative accommodation or land within the municipal district where such a business might be more appropriately established;
5.4 the existence of similar businesses within the locality established in appropriately zoned areas;
5.5 the times during which the business may operate;
5.6 the duration of the planning approval to be granted.
- 6. In relation to Item 5.1 above, the respondent considers the following to be generally unacceptable –
6.1 the outdoor storage of materials or supplies;
6.2 the generation of vehicular traffic volumes substantially beyond that normally experienced in the neighbourhood;
6.3 the presence, use or calling of any commercial vehicle in excess of 2 tons tare weight; and
6.4 the provision of parking facilities for more than 2 vehicles."
(Page 6)
The refusal
12 The respondent refused the application for the reasons:
"1. The development has the potential to disrupt traffic on Murray Waters Boulevard.
2. The development is contrary to the desired land use in a residential area.
3. The proposed use constitutes a 'commercial' land use and should be located in a Town Centre or Commercial area."
13 This refusal gave rise to the application for review.
Discussion
14 Mr Matthew Selby, the respondent's Manager of Planning and Development, appeared as a witness. He said the concern was that a home occupation-hairdressing salon was a use that required clients to drive to the site, this being different from a home occupation that involved, for example, a professional use that required no visitors. It was his evidence that the additional vehicle movements might not be what local residents expect and have an unfavourable impact on what he described as a quiet residential locality. This, he guessed, might give rise to complaints.
15 The applicant agreed that the subject land was in a quiet residential area, but submitted that the traffic that would be generated would have little impact. The proposed use would not commence until after 9 am and would finish at 4 pm and so vehicles attending the site would not interfere with the morning and afternoon concentration of traffic.
16South Yunderup, which includes Murray Waters Boulevard and the adjacent streets which front the canals and the Murray River, is effectively at the end of what might be characterised as a lengthy cul-de-sac. These lots are on the left bank, or south side, of the Murray River as it enters the Peel Estuary. The only exit from and entry to the locality is via South Yunderup Road, which has a junction with Pinjarra Road five kilometres to the east at Ravenswood. The Tribunal notes that this is not a locality which has through traffic which would supply potential passing trade. It is difficult to envisage this proposed home occupation generating customers from outside the immediate locality. In addition the only
(Page 7)
- vehicles arriving would be domestic vehicles as no visits by commercial vehicles would be required.
17 Given the location of the subject land and the limited number of potential callers, the Tribunal is of the view that the traffic generated would not have such an impact on traffic in the locality as to as to provide a reason for refusal of the development.
18 Related to traffic disruption is the availability of parking for customers. The applicant pointed out that the lot has a frontage of 22 metres and the curved drive-way in front of the house which can accommodate two parked vehicles, the likely maximum number of customers likely to be present at one time. Customers will not have to park in the street and occupier's vehicles will still be able to enter and leave the site via the 6 metre wide drive-way that runs from the street to the garage. Mr Selby speculated about additional vehicles attending if hair was being done for a wedding party, for example. Ms Widgington pointed out that, working on her own she can only do one to two jobs at a time and in any event, in her experience with such groups more than one person arrived in each car.
19 The Tribunal is of the view that parking for this proposed use is sufficient and will not give rise to traffic concerns on Murray Waters Boulevard.
20 Mr Selby referred to the potential for an adverse accumulative effect on the local residential amenity of home occupations. He referred to an approval for a bed and breakfast nearby and an application for a second bed and breakfast. He also submitted that the use might have an adverse effect on the amenity of neighbouring dwellings, particularly as he considered that it would be difficult to monitor the number of visits and the frequency of them might change.
21 The room that would be used for the hairdressing has been constructed as part of the house. Whether or not the development proceeds there will be no change in the appearance of the dwelling. The impact the use will have will be as a result of the people and vehicles attracted to what is otherwise a residential site and locality. With appropriate conditions the Tribunal considers that a level of activity can be achieved that will have little discernible impact on the locality and neighbours.
22 Mr Selby referred to cl 5.3 and cl 5.4 of the policy. Clause 5.3 refers to the availability of alternative accommodation for the use in the
(Page 8)
- "municipal district". Neither party was aware of any accommodation available in the small local centre. Mr Selby submitted that there would be commercial premises available in Mandurah or Pinjarra.
23 While the policy does refer to premises in the "municipal district" the Tribunal is of the view that sense can only be made of such a broad consideration if regard is had to the particular use proposed, the location and the customer catchment associated with the use. Hairdressers traditionally have a local catchment. Pinjarra is about 10 kilometres by road to the east and Mandurah about 14 kilometres distant by road, first east to Ravenswood and then west along Pinjarra Road. It is necessary to consciously leave South Yunderup to use the facilities of these towns. The potential availability of commercial premises in those localities is not considered to be a reason to dismiss entertaining the potential for a hairdresser to be located in a neighbourhood as discrete as South Yunderup.
24 Clause 5.4 of the Policy refers to existence of similar local businesses in appropriately zoned areas. Mr Selby was of the view that it was not necessary for this use to be in the residential area. He said that within South Yunderup there was a commercial centre within which there was a hairdresser. It was not in his view appropriate that a business gain commercial advantage by having the low cost benefits of being located within a residence.
25 As mentioned above, neither party was aware of any vacancies in the small commercial centre of South Yunderup. In addition, this Tribunal has noted in previous decisions that, in accordance with the decision of the High Court in Kentucky Fried Chicken Pty Ltd v Gantidis(1979) 140 CLR 675, it is not the Tribunal's role to protect businesses from competition from other businesses proposed to be commenced in any area. It is the role of the Tribunal to assess a particular development proposal in the light of what is proposed, where it is proposed and the planning controls in place. From the examination of the proposal, as set out above, this Tribunal has found that there is a case for the development being allowed to proceed.
26 The applicant made an application for costs. Section 87 of the State Administrative Tribunal Act 2004 (WA) provides in part:
"87. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under
(Page 9)
- this section, parties bear their own costs in a proceeding of the Tribunal.
- (2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party …
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ¾
(a) …
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits."
(Page 10)
- and the approvals required and failure to seek any independent advice added to the misunderstanding between the parties.
28 The applicant also argued that the application for planning approval was not treated on its merits. From the evidence, notwithstanding the applicant's understanding of comments made by officers, it is apparent that the respondent understood the proposal, assessed it in terms of its policy and planning controls and properly formed a conclusion that approval not be granted.
29 The applicant further argued that the refusal by the respondent gave rise to the need to make an application for review and the subsequent directions hearing, mediation and then the hearing, all of which caused her to incur expenditure. An examination of the papers shows that once the application for review was filed the respondent complied with the procedural requirements of the Tribunal.
30 There was nothing on the papers that showed that the respondent has acted in such a way as to materially disadvantage the applicant. It was apparent that the applicant's disappointment at the refusal and unsureness about what the scheme provisions allowed, and required of her, contributed to her situation. It is concluded, therefore, that there be no order for costs.
Orders
1. The application for a home occupation (hairdressing salon) at No 53 Murray Waters Boulevard, South Yunderup be allowed and approval to commence development be granted subject to the following conditions:
(1) The activity must not degrade the amenity of the neighbourhood in any way (eg due to emission of dust, light, noise, vibration, electrical interference, odour, fumes, smoke or other pollutant).
(2) The activity must not occupy an area greater than 20 square metres.
(3) Advertising signage is restricted to a sign describing the nature of the home occupation not exceeding 0.2 square metres.
(4) The use must not entail employment of any person not a member of the occupier's family except in the case of a professional person.
(Page 11)
- (5) Hours of operation of the use shall be within 9 am to 4 pm Monday to Friday and 9 am to 12 pm on Saturdays.
(6) Only two clients shall access the premises at one time. The applicant is to keep a record of clientele in the form of a diary available for viewing by council.
(7) The applicant shall provide space for a minimum of 2 client vehicles to park in the curved drive-way, in addition to 2 bays required for the residents of the dwelling with free access to the garage.
(8) This approval for a home occupation (hairdresser) will expire on 31 December 2006 and shall be subject to annual renewal thereafter.
(9) No skin penetration of any kind is to be carried out on the premises.
(10) No retailing of any products from the premises is allowed.
2. There be no order for costs.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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