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[2008] WASAT 219
General information, not legal advice.
State Administrative Tribunal (WA)
2008-09-19
Original judgment source is linked above.
(i) Development shall be in accordance with the plan entitled Project No P06001 SK03, dated 11 July 2007 and received by the Shire of AugustaMargaret River on 3 September 2007.
(ii) If the development, the subject of this approval, is not substantially commenced within three years from the date of this letter, the approval shall lapse and be of no further effect. Where an approval has lapsed, development is prohibited without further approval being obtained.
(iii) A building licence must be issued by the building surveyor before any work commences on site as per the Building Regulations 1989 (WA).
(iv) The building shall not be occupied until a certificate of classification has been issued by the Shire of AugustaMargaret River's building surveyor. A person who uses or occupies, or permits the use or occupation, of a building without a certificate of classification is in contravention of Building Regulations 1989 (WA), reg 20(4) or reg 22, and is guilty of an offence under reg 23.
(v) Prior to the removal of any structure, a demolition licence shall be obtained from the building surveyor pursuant to the Building Regulations 1989 (WA), reg 31.
(vi) A master landscape plan shall be prepared to the satisfaction of the Shire of AugustaMargaret River and submitted to the Shire of AugustaMargaret River by a suitably qualified and/or experienced landscape consultant and approved prior to the issue of a building licence for the development. The landscape plan shall be drawn to a scale of 1:100 and show the following:
(a) The location, including recommendations of the Cape to Cape LandCare Companion name and mature heights of existing and proposed trees and shrubs, ground covers;
(d) Those areas that are to be reticulated or irrigated are demonstrated to be designed using water sensitive principles, to the satisfaction of the Shire of AugustaMargaret River; and
(vii) Landscaping works shall be established prior to occupation/use of the development.
(viii) The use shall operate only between the hours of 7 am and 6 pm between Monday and Friday, and not at all on Saturday and Sunday.
(ix) The use shall not accommodate more than 20 children at any one time.
(x) The outdoor play areas and northern and western boundaries adjacent to the seven parking spaces identified at the rear (north) of the proposed day care facility shall be screened with noise attenuation fencing that comprise a solid wall, free of gaps, of a minimum height of 1,800 millimetres and a surface material having a mass of at least 10kg (per square metre) (for example, brick, limestone, concrete etc). Should no agreement be able to be reached with adjoining land owners, this fencing shall be set back inside the property boundary adjacent to existing fencing. This noise attenuation fencing shall not extend further toward Waverley Road than the proposed day care centre and not less than the southern extent of the seven parking spaces in the rear (north) of the site.
(xi) Operation of the day care centre shall be generally in accordance with the schedule of operation provided by the applicant on 4 December 2007.
(xii) Ten onsite car parking bays shall be provided at a location to the satisfaction of the Shire of AugustaMargaret River, in addition to two short stay dropoff bays located adjacent to the front (south) of the day care centre.
(xiii) The proposed kerbside car parking and dropoff zone shall be deleted from the plans submitted for the purposes of an application for a building licence and does not form a component of this approval.
(xiv) Vehicle parking areas and access ways and crossover(s) shall be designed, constructed, sealed, kerbed, drained, line marked and thereafter maintained in accordance with Australian Standard AS 2890.11993 and Shire of AugustaMargaret River's standards and specifications, prior to occupation of the development.
(xv) One parking bay for the disabled with a minimum width of 3.2 metres, and statutory sign located convenient to the building entrance shall be provided to the satisfaction of the Shire of AugustaMargaret River.
(xvi) The north/south aligned car bays adjacent to the day care centre shall be marked as for use by staff only.
(xvii) All loading and unloading shall take place within the boundaries of the premises.
(xviii) The proponent is required to submit a car park design for approval by Infrastructure Services showing construction details of pavement levels, thickness, crossfall, pedestrian access arrangements, drainage connections, if any, into the Shire's stormwater system and drainage pipe inverts, prior to the issue of a building licence.
(xix) The vehicle crossovers shall be constructed to minimum standard 2 coat bitumen seal and designed and constructed in accordance with the Shire of Augusta-Margaret River crossover standards and specifications, prior to the occupation of the development.
(xx) Access and egress to the site shall be by means of a oneway system only.
(xxi) Works are prohibited within the road reserve, including any pruning or clearing of vegetation without prior written approval of the Shire of AugustaMargaret River.
(xxii) Prior to issue of building licence, the proponent to pay a development bond of $4,000 as per PE.51 Development Bonds Policy.
(xxiii) Prior to issue of a building licence, the proponent shall provide a stormwater management plan incorporating water sensitive urban design principles to ensure that stormwater and drainage runoff from the property does not exceed predevelopment flows. The plan shall include an analysis of soil porosity and strategy for impervious area rainfall collection, filtered to remove contaminants and either recycled on site or drained in a controlled manner to a safe outlet point.
(xxiv) The proponent shall implement all measures necessary to prevent erosion, or airborne or waterborne transmission of soil and sediment from the development and tracking of soil by vehicle tyres onto the road during and after construction. Details of the methods to be employed to control the erosion or transmission of soil and sediment offsite during and subsequent to construction to be submitted for approval prior to the issue of a building licence.
(xxv) An apparatus for the onsite treatment and disposal of waster water shall be installed to the satisfaction of the Shire of AugustaMargaret River and the Department of Health, prior to occupation of the building. An Application to Install Apparatus for Treatment of Sewage shall be submitted with the application for building licence.
(xxvi) A structure, paving or surface treatment shall not be located over a leach drain used as a receptacle for drainage or for the treatment and disposal of sewerage. Leach drains shall not be located within 1.8 metres from the foundations of any building or boundary. Septic tanks shall not be located within 1.2 metres from the foundation of any building or boundary.
(xxvii) Noise emissions resulting from development/use of premises for the approved purpose shall not exceed the assigned levels in the Environmental Protection (Noise) Regulations 1997 (WA), and shall not unreasonably interfere with the health, welfare, convenience, comfort or amenity of an occupier of any other premises.
(xxviii) Where in the opinion of the Shire of AugustaMargaret River the emission of noise, vibration, odour, fumes, smoke, vapour, steam, soot, ash or dust from the approval use 'day care centre' is considered to cause danger or nuisance to occupants in the building, occupants of neighbouring buildings or members of the public, the person licensed to operate the approval use 'day care centre' shall liaise with any affected person and undertake reasonable action to abate the cause of the danger or nuisance.
(xxix) Lighting for security, recreation or display shall be internally directed and/or shielded so that light overspill does not unreasonably affect the amenity of adjoining properties.
(xxx) Sanitary conveniences shall be provided in accordance with the applicable requirements of the Health (Food Hygiene) Regulations 1993 (WA); Building Code of Australia 2004 (WA); and Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA).
(xxxi) Food preparation, storage and processing areas shall comply with the requirements of the Shire of AugustaMargaret River Health Local Laws 1999 (WA), Health (Food Hygiene) Regulations 1993 (WA).
(xxxii) The development shall be connected to the Water Corporation's reticulated water supply to the satisfaction of the Shire of AugustaMargaret River and the Water Corporation, prior to occupation of the development.
(xxxiii) Where a street tree requires removal and/or pruning for this development, a separate application shall be made to the Shire of AugustaMargaret River in line with the Street Tree Removal and Consultation Policies.
(xxxiv) Signage for the development/use may be erected on the site pursuant to this planning approval providing:
(a) it complies with any town planning scheme or policy requirements;
(b) a sign licence has been issued by the Shire of AugustaMargaret River; and
(d) it complies with Policy PE 46, Control of Signs and Advertising Devices.
I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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2 The proposal was a modified version of a proposal considered by the Tribunal in Allen and Shire of AugustaMargaret River [2007] WASAT 103.
25 In addition to TPS 11, two relevant planning documents are the Interim Development Order No 16 (IDO 16), a Cowaramup Village Strategy 2005 (CVS) and the Western Australian Planning Commission (WAPC) Planning Bulletin No 72 child care centres (PB 72). Relevant clauses of these planning documents are described later in these reasons. The Tribunal notes that although PB 72 is still in draft form, it has previously found that PB 72 should be given some weight. (See, for example, Litis & Anor and Shire of Kalamunda [2006] WASAT 130)
43 Although the planners' report to Council is inconsistent with the decision of the Council and the opinion of Mr Bain, the Tribunal will give some weight to the opinions expressed in the planners' report. This is consistent with the findings of the Town Planning Appeal Tribunal of Western Australia where, in Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4, the Tribunal found at [36]:
Compliance with the Noise Regulations is a measure of acceptable acoustic amenity but does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity in a planning sense; Land Alliance (and) Shire of Belmont [2005] WASAT 100 at (39).
92 Although it is not required as a condition relating to noise, the Tribunal is of the opinion that the perceived impact of car start and door closing events could be reduced if the number of bays at the rear were reduced. In Allen and Shire of AugustaMargaret River at [84] the Tribunal stated that the number of bays should be increased from seven to eight or more. This current proposal includes twelve onsite bays for 20 children and the Tribunal considers this number is possibly excessive. In Ienco and City of Melville [2007] WASAT 56 (Ienco and City of Melville) (discussed below) a day care centre for 40 children and five staff was approved by the Tribunal. In that case the proposal included 12 car bays which, as part of the settlement of conditions, the parties agreed to reduce to 11. The possibility of reducing the car bays has not been argued before the Tribunal and an appropriate order will be issued to enable the parties to investigate the potential benefits and consequences of a reduction in the number of onsite parking bays at the rear of the site.
94 In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74, the President, Barker J discussed at [21] [22] the principles of amenity and found that assessment of amenity should not only include the opinions of experts but also the subjective views of residents and that the assessment should consider the present and likely future amenity.
98 The respondent argued that social impact is a relevant consideration in the assessment of whether a proposed development is orderly and proper planning and referred to Hope and City of Joondalup [2007] WASAT 8 (Hope and City of Joondalup). In Hope and City of Joondalup at [36] [39]. The Tribunal assessed a proposed shortstay accommodation proposal in a low density residential development in terms of the impact on social cohesion where social cohesion was one of two matters considered in terms of orderly and proper planning. In that case the Tribunal found that the proposal would have an adverse impact on social cohesion and was contrary to orderly and proper planning.
100 This Tribunal, in Ienco and City of Melville at [65] [75], discussed the planning principles as they relate to day care centres in a residential zone. Two issues discussed are directly relevant to this review. The first issue is the respondent's argument that the day care centre will adversely impact on the residential amenity of the locality. In Ienco and City of Melville, the Tribunal referred to a decision made by the Victorian Civil Administrative Tribunal in Jones v Boroondara CC [2006] VCAT 1833, and at [65] cited the following passage:
102 The second relevant issue discussed in Ienco and City of Melville in terms of legal principles was noise at [68] [71]. Although the Tribunal has already found that the noise levels associated with the proposal are acceptable, it is worth revising the issue in the broader context of planning principles associated with noise, day care centres and general expectations of amenity in a residential environment. In Ienco and City of Melville at [68], this Tribunal reviewed the findings of the VCAT in Victory Investment Group v Whitehorse CC [2005] VCAT 1863 (Victory Investment Group v Whitehorse) where the issue of noise and child (day) care centres was discussed in the context of significant cases in that jurisdiction. At [68] this Tribunal cited a passage in the discussion from Mathews v Glen Eira CC [2002] VCAT 1388 where the Victorian Tribunal expressed the view:
105 In Ienco and City of Melville at [70] reference was also made to findings of Bignold J in Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140 which this Tribunal reported were consistent with the views expressed by the VCAT. At [70] this Tribunal cited the following passage: