State Administrative Tribunal (WA)|2005-05-06

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (6 May 2005)

CITATION : LAND ALLIANCE PTY LTD and CITY OF BELMONT [2005] WASAT 100

Development - Child care centre - Impact on amenity - Noise - Compliance with Environmental Protection (Noise) Regulations 1997 - Whether compliance with statutory standards is sufficient - Traffic - Application of Local Planning Policy - Imposition of conditions - Nature of conditions - Whether condition is incidental or strikes at heart of intended use

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

BSD Consultants Pty Ltd and McDonalds Australia Ltd v City of Stirling (unreported, Appeal No 1 of 1996, 24 May 1996)

G Rossetto & Co Pty Ltd v District Council of East Torrens (1984) LGRA 390

Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414 at 423

Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1

MS B MOHARICH (MEMBER), MS M CONNOR (MEMBER), MR J ADDERLEY (SESSIONAL MEMBER)

1 This is a review of the refusal of the City of Belmont ("the respondent") of an application for a childcare centre on land in Belmont.

2 The matter was commenced as an appeal to the Town Planning Appeal Tribunal. This Tribunal was abolished by the commencement of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005, and from this date on, the jurisdiction of the abolished Town Planning Appeal Tribunal was transferred to the State Administrative Tribunal, pursuant to s 167 of the State Administrative Tribunal Act 2004.

3 The land on which the childcare centre is proposed is 188 Keymer Street, Belmont ("the site"). The site is more particularly described as Lot 402 on Deposited Plan 36574, and being the whole of the land in Certificate of Title Volume 2227 Folio 379.

4 The site is located on Keymer Street, two lots south-east of the corner of Keymer Street and Ellard Avenue. The site is 2159m2 in area, with a frontage to Keymer Street of 39.03m. The depth of the site is 55.32m. The site is approximately twice the area of other lots in the immediate locality.

5 The application for development was lodged with the respondent on 24 May 2004, under cover of a letter dated 21 May 2004 from Mr Christopher Senior, an employee of the applicant. This initial application was for a childcare centre to accommodate 86 children from the age of 6 weeks to 6 years, and operating Monday to Friday from 6.00 am to 6.00 pm.

6 This initial application was amended by the lodgement of modified plans on 29 June 2004, which revised the capacity of the centre to 80 children, requiring 15 carers on a full time basis, and a part-time cook.

7 At the hearing of the appeal, Mr Senior, who gave evidence on behalf of the applicant, confirmed that the hours of operation now proposed are 6.30 am to 6.30 pm. In addition, the number of children had been revised to 80 children, falling within the following age groups:

• 20 children aged 6 weeks - 2 years (babies and toddlers)

• 20 children aged 2 3 years (toddlers and pre-kindergarten)

• 40 children aged 3 4 years (kindergarten to pre-school) and 4 6 years (pre-school)

8 The proposed child care centre is a singlestorey building, designed to a residential scale, and to be constructed with brick veneer walls, and is 468m2 in area, including four 72m2 'playspace' areas. Playspace 1, located in the northern corner of the building, is designated for the 0 2yearold children. Accessible from playspace 1 are two cot rooms, each 16m2 in area. Playspace 2 located in the western corner is for children aged 2 3 years. Playspace 3, in the eastern corner and playspace 4, in the southern corner are both designated for 3 6yearold children.

9 In addition, the building houses a kitchen, laundry, toilets, change rooms, staff room and office. The building is set back 20.6m from the front boundary.

10 Within this front setback are located 30 car bays, 8 of which are in a tandem configuration for use by staff. Vehicle access is provided by way of a crossover to Keymer Street at the northern corner of the site.

11 There is also 777m2 of outdoor play area proposed. This play area is located around the sides, and the rear of the site. A fort area is proposed along the southeastern side boundary, and a swing-set in the southern corner of site, accessible from playspaces 3 and 4 (to be used by 3 6 year old children). A pavilion area is proposed at the rear of the building. In both the western corner, and along the north-west boundary, sandpits are proposed.

12 The application was refused by the Council of the respondent at its meeting on 26 October 2004, and the following reasons were provided:

"1. The proposal is considered to be an inappropriate scale for the 'Residential' zone and will detrimentally impact on the preservation of the amenity of adjoining and nearby land owners.

2. The relationship of the design of the development to residential development on adjoining land is poor and does not reduce the potential for the impact of noise for outdoor play areas.

3. The proposal does not comply with the City of Belmont Local Planning Policy No.15, in regard to the preferred zoning classification of the land; the property is bounded by and impacts on six residential properties rather than the two specified under the Policy.

6. The potential impact of anticipated aircraft noise levels on the outside play areas of the proposal and the potential impacts on the learning ability of the children to be accommodated within the proposed centre have not been quantified or addressed.

7. The commercial nature of the development is not considered compatible with the low density of development (R12.5) within the immediate locality."

13 The site is zoned Residential under the City of Belmont District Planning Scheme No.14 ("TPS14"), with a coding of R12.5.

14 Pursuant to the zoning table in TPS14, the use of land for a childcare centre is an "S" use in the Residential zone. Under cl 4.2.2(a) of TPS14, an "S" use means:

"... that the use is not permitted unless the Council has exercised its discretion and has granted Planning Approval after giving special notice in accordance with clause 5.7.3"

15 Clause 5.7.3 sets out the requirements for the advertising of applications for "S" uses. The respondent (and therefore the Tribunal) is required to determine the application having regard to the general criteria listed in cl 5.8.1. These relevantly include:

"(g) any planning policy adopted by the Council under the provisions of clause 2.5 of this Scheme ...;

(k) the preservation of the amenity of the locality;

(l) the relationship of the proposal to development on adjoining land or on other land in the locality;

(m) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;

(n) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

(r) whether adequate provision has been made for the landscaping of the land to which the planning application relates ...;

(u) any relevant submissions or objections received on the application."

16 In addition, in relation to applications for approval of uses classified as "S" uses, the respondent (and therefore the Tribunal) must have regard to a set of special criteria listed in cl 5.8.3. These are:

"(a) the nature of the proposed use and its relationship to the use of other land within the locality;

(b) the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building ...;

(d) the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development."

17 In relation to cl 5.8.1(g), the respondent's Local Planning Policy 15: Child Care Centres Policy ("LPP15") is relevant. The policy is properly made in accordance with cl 2.5 of TPS14.

18 The issues to be determined in satisfying the requirements set out in cl 5.8.1 and cl 5.8.2 of TPS14 fall into three categories, these being:

19 At the hearing of the appeal, the respondent did not seek to agitate in any substantive way the argument regarding aircraft noise levels, and therefore the Tribunal will not, in this judgment, make any finding in this regard.

20 To determine the impact of the development on the amenity of the locality, as required by cl 5.8.1(k) of TPS14, it is first necessary to determine what the present amenity of the locality is.

21 Mr Malcolm Somers, a town planning officer for the respondent, gave evidence at the hearing. It was his view that the locality is characterised by "low density residential development". The surrounding locality is characterised by single residential dwellings on 850m2 to 1100m2 blocks. The site shares its side and rear boundaries with 5 residential properties.

22 Mr Somers noted that the "streetscape is consistent with low density residential development, with houses set back approximately 8 to 10m from the street frontage".

23 Mr Allerding, an experience town planner, gave evidence on behalf of the applicant. He agreed that Keymer Street is predominantly residential in nature but noted that there were many sites in the street zoned Residential R20/40. Mr Allerding was of the opinion that this greater density residential land would eventually change the amenity of the street.

24 Mr Allerding also noted that the locality must include the Belvidere Shopping area, which is 270m to the north west on the corner of Belvidere Street and Keymer Street, and the Belmay Primary School, which is located 360m from the site, on Sydenham Street, at southeast end of Keymer Street. Under cross examination, Mr Allerding agreed that while the Belmay Primary School oval was 360m from the site, the actual school buildings were even further away.

25 It is the Tribunal's view that while there are community facilities at either end of Keymer Street, the area of Keymer Street surrounding the site is largely low density single residential. The Tribunal was not swayed by the fact that some of the surrounding lots had dual coding of R20/40 - the land is still residential in nature.

26 The applicant contends that the proposal complies with the standards of the Environmental Protection (Noise) Regulations 1997 ("Noise Regulations"). The Noise Regulations set out the maximum allowable noise level that may be emitted, measured from the point of the receiver of that noise. For residential land, the following standards, as set out in r 8 of the Noise Regulations apply:

27 The definitions of LA10, LA1 and LAmax are provided in the Noise Regulations. Briefly, these are measurements of the level of noise in decibels. "LA" refers to the level of noise in decibels ("dB") using the "A" frequencyweighting characteristic, which is a measuring system set out in the relevant Australian Standard. The number refers to the percentage of the representative test period beyond which the assigned noise level must not be exceeded. For example, where the LA10 standard is 45dB, this means that the level of noise must not exceed 45dB for more than 10 per cent of the time.

28 An influencing factor is added in circumstances where the land being tested is close to activities or uses, such as heavy industry, mining or roads, which increase the level of noise generally. Where land is close to such uses or activities, an influencing factor, calculated in dBs would be added to the standards set out in r 8.

29 It is clear from the evidence provided by both parties, that the modelling of noise is an inexact science. The results will depend upon how long the representative test period is, whether an influencing factor is assigned, and the quality of the data set used to underpin the modelling. It will depend upon whether a value is added to take into account the tonality, modulation or impulsiveness of the noise. It will also depend upon where, within the noise receiving property, the measurement of noise is taken.

30 Mr Nicolo Della Gatta gave evidence on behalf of the applicant. Mr Della Gatta is an acoustic engineer, with over 20 years experience, and with particular previous experience in measuring noise from child care centres. In modelling the predicted noise levels from the child care centre, Mr Della Gatta calculated the noise over a 4 hour period, which is the maximum test period which may be used under the Noise Regulations. In addition, Mr Della Gatta has not used the LAmax and LA1 measurements, and has instead based his report on the LA10 levels, calculated at 10m, with 12 children. His reason for doing so is because it his view that the LAmax and LA1 levels are not indicative of the noise.

31 Mr Della Gatta did not provide a quantitative analysis of the noise levels of children playing in his report which was tendered with his witness statement. He did however, provide anecdotal information regarding the likely noise output of particular groups of children. Because Mr Della Gatta did not model LAmax or LA1 levels, his report does not include information regarding the noise associated with the car park.

32 Mr Paul Keswick, a similarly experienced acoustic engineer with bachelor and PhD qualifications, gave acoustical analysis evidence for the Respondent. Mr Keswick was critical of Mr Della Gatta's method of modelling. It was Mr Keswick's opinion that the representative test sample should be 15 minutes during an hour in which the children are playing, rather than choosing a 4 hour period, within which children only play for an hour, as this artificially lowers the average noise level. Mr Keswick was also critical of Mr Della Gatta's decision not to include the LAmax and LA1 measurements. As Mr Keswick noted in the report appended to his witness statement:

"... these criteria are important in assessing the noise impact from the child care centre, and should be included in the assessment. In particular the maximum noise level from children's play activities should be assessed, and similarly from traffic movements within the car park and from passengers opening and closing doors of cars within the car park of the proposed child care centre ...

Noise from children playing, traffic movements within the car park, and from passengers opening and closing car doors can generate high LAmax and LA1 noise levels which have the potential to exceed the assigned noise levels."

33 Ultimately, the Tribunal is of the view that there is no requirement for a definitive judgment as to whether the proposed child care centre will comply with the standards set out in the Noise Regulations.

34 Counsel for the respondent, Mr Slarke, referred the Tribunal to the provisions of the Environmental Protection Act 1986 (WA) ("EP Act"). Section 3(3) sets out the circumstances where noise will be considered unreasonable (and therefore an offence under the EP Act). Noise is considered unreasonable when it contravenes the Noise Regulations, but it is also considered to be unreasonable where, in s 3(3)(b):

"having regard to the nature and duration of the noise emissions, the frequency of similar noise emissions from the same source (or a source under the control of the same person or persons) and the time of day at which the noise is emitted, the noise unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person;"

35 In this case, the child care centre proposes an opening time of 6.30 am, thereby requiring staff to arrive prior to this time, with the obligatory opening and closing of car doors. Mr Senior advised that the busiest time for morning drop-offs would be 7 am to 7.30 am. The drop off of children will require at least 3 door-opening and closing events for each car. The car will park in the carpark, and the driver will open the driver's door, alight from the car, and close the door. The door where the child is located will then be opened, the child will alight, and that door will be closed. There may also be a requirement for the driver to remove from the boot or hatch of the car equipment that the child needs for their day at the child care centre. After taking the child into the centre, the driver will then need to open and close their door in order to drive off. This is a significant number of events at a time in the morning where a degree of quiet and a low level of activity in a residential suburb may be expected.

36 The centre proposes outdoor play time for children before 11 am and after 3 pm, to avoid the hottest part of the day. The play areas are located around the sides and rear of the site, and are therefore close to the surrounding residential properties. Within the play areas, and adjacent to the boundaries with surrounding residential properties are a number of activity points (such as the fort, and the sandpits) which will attract children, thereby increasing the likelihood of a concentration of noise at these points.

37 In a decision of the Supreme Court of South Australia, G Rossetto & Co Pty Ltd v District Council of East Torrens (1984) LGRA 390, Matheson J made comments regarding the South Australian Noise Control Act 1976-1977, at page 401:

"The Act is thus an Act to control excessive noise, and provides a penalty for breach of its provisions. I can understand the reference to it by the acoustical engineers, but I do not think it by any means follows that emission of noise that is not excessive pursuant to its provisions and to the said regulations has of necessity no effect on the amenity of a particular locality."

38 The decision in Rossetto (supra) was cited with approval by the Western Australian Town Planning Appeal Tribunal in BSD Consultants Pty Ltd and McDonalds Australia Ltd v City of Stirling (unreported, Appeal No 1 of 1996, 24 May 1996).

39 This Tribunal similarly agrees with the principal 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.

40 Mr Senior noted in evidence that the applicant would be willing to accept "any condition which is reasonable" to ensure compliance.

41 Mr Della Gatta recommends in his report that to comply, play duration should be kept short, and should the proposal be approved, that ongoing monitoring of noise be undertaken, and suggests that if necessary that play areas could be relocated, or the duration of play or number of children in the outdoor areas at any one time could be reduced. In response to a question from the bench, Mr Della Gatta advised that to comply there would need to be a maximum of 10-12 children playing outside at any one time, and for a maximum period of one hour in every four.

42 Two things should be said about these suggestions. The first is that the Tribunal, in all situations, is cautious about imposing conditions which will provide difficulty for the respondent to police. Secondly, the Tribunal is reluctant to impose conditions which strike at the heart of the use applied for.

43 In the decision of Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414 at 423, Debelle J made the following observations in relation to the imposition of conditions:

"The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. ... The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development form being used in the ordinary way. Resort to the use of such conditions it tantamount to an acknowledgement that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use.

There are policy reasons which reinforce this conclusion. First, there may be difficulties in enforcing the conditions."

44 The Tribunal concurs with the reasoning in Kipa (supra). To impose a condition limiting the duration of play hours for children would be to strike directly at the activity being applied for. In addition, it would be to impose a condition which would be difficult for the respondent to police and enforce.

45 It is our view that considering the residential nature of the locality, the number of immediately adjacent residences, and the times at which noise is to be generated, particularly the noise emanating from the carpark early in the morning, and the noise of children playing in the outdoor play areas, that the use will adversely impact upon the existing amenity of the area, and is therefore incompatible.

46 The childcare centre, if operating at full capacity, will have 80 children attending on a daily basis, and will require 15 full time staff, and a parttime cook, who would come in to prepare lunch during the middle of the day.

47 The parties agreed that the centre would generate approximately 290 vehicle trips to and from the site per day, for the dropping off, and picking up of children, and the arrival and departure of staff.

48 The respondent did not call expert traffic evidence. The reason for this is that it is respondent's view, as explained by Mr Somers, that while the road network has the capacity to accommodate the extra traffic, it is the proportional increase in vehicle movements which will cause a reduction in residential amenity.

49 Mr Jonathon Riley, a traffic engineer with 20 years experience, provided evidence for the applicant. His view was that while there would be a 1015 per cent increase in traffic, the impact would be negligible. Mr Riley provided a breakdown of traffic movements from a child care centre in Thornlie to indicate the likely timing of the coming and going of motor vehicles from the site. It was Mr Riley's view that at the peak time for the childcare centre, there would be approximately 34 additional vehicles using Keymer Street, equating to one vehicle every 1.75 minutes.

50 The Tribunal is of the view that the number of additional vehicle movements to the site, in light of the site's location between the Belvidere shops, and the Belmay Primary School would cause a negligible impact on the amenity of the area. This number of trips is, however, likely to have an adverse impact in relation to the number of vehicle movements in and out of the carpark it will generate - this issue has been canvassed in relation to noise impact.

51 For a policy to be given weight, it must be tested against the criteria set down in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1. The test is:

(a) whether it is based on sound town planning principles;

(b) where it is a public, rather than a secret policy;

(d) the length of time that a policy has been in operation; and

52 LPP15 was adopted by the council of the respondent in June 2002. As explained by Mr Somers however, the policy, in a similar form, has been in operation since 1996. Mr Somers provided a useful explanation of the genesis of the policy.

53 The policy is the result of a concern in the mid 1990's about the number of applications for development approval for child care centres within the respondent's local government area. The respondent conducted a survey of residents and landowners living in close proximity to existing child care centres, to gauge their opinion on the effects the centre had on their residential amenity. The responses from this survey formed the basis for the preparation of a draft policy, which was advertised and finally adopted on 12 February 1996, under a previous town planning scheme. This policy was readopted by the respondent, with minor variations in June 2002, as a result of the commencement of TPS14.

54 The Tribunal is particularly impressed with the genesis of LPP15, and the respondent's methodology in surveying residents in preparing the policy to effectively deal with the impact on residential amenity caused by child care centres.

55 It is our view that LPP15 fulfils the criteria set out in Permanent Trustee, (supra) and therefore the highest weight should be afforded to it.

56 The policy sets out locational criteria and development standards for child care centres.

The locational criteria that are relevant to this appeal are:

"1. The preferred location for Child Care Centres are on lots zoned "Town Centre", "Commercial", "Mixed Use", specific public use / recreation reserved land or land the subject of relevant "Additional Use" provisions.

A residential lot located opposite, or adjacent to the said zoned or reserved land may be considered as a potential site depending on compliance with the remainder of the policy.

Locations near schools, shops and work places are favoured.

2. It is preferred that Child Care Centres be located on lots which have no more than two boundaries to a "Residential" zoned lot.

5. Sites for Child Care Centres will be required to have a minimum frontage of 20m and a minimum area of 1000m2.

6. The road or roads abutting a potential site will be required to be capable of accommodating safe and convenient on-road car parking."

57 It is clear that the purpose of the locational criteria is to locate child care centres in areas where the impact on residential amenity will be avoided, or at the very least limited. This is clear from the objective of the policy, which states:

"To ensure that Child Care Centres in the City of Belmont are located in areas of compatible use ..."

58 The site is 270m from a local shopping area, and at least 360m from a local school, and it is therefore questionable whether it is near enough to comply with criterion 1. In any event, the site does not comply with criterion 2, which prefers a location where no more than 2 residential lots abut the child care centre.

59 The implication in LPP15 in preferring sites adjacent to no more than two residential lot boundaries, is to suggest child care centres should be located on street corner lots or lots abutting non residential uses or reserves. Such locations would afford optimal opportunity to locate noisy car parking and outdoor play areas away from residential interfaces. There are therefore sensible and reasonable options for locating child care centres in residential areas without compromising the amenity of residential neighbourhoods.

60 Because of the amenity impact on the locality caused by the proposed use, it is our view that the proposal is incompatible with the surrounding land uses, and therefore does not fulfil the objectives of LPP15.

61 The development issues in contention in this review relate to the provision of carparking, and landscaping. Because of the Tribunal's decision in relation to the use of the land, it is unnecessary to make a determination in relation to these details.

62 Because of the impact on the amenity of the locality, particularly in relation to noise, the Tribunal is of the view that the use of the site is an inappropriate use in the area.

The Tribunal therefore makes the following order:

I certify that this and the preceding 15 pages comprise the reasons for decision of the State Administrative Tribunal.

_____________________________

Ms B Moharich

Member

Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004(WA)

Protection (Noise) Regulations 1997

Administrative Tribunal Act 2004

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (6 May 2005)

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Judgment (77 paragraphs)

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (6 May 2005)

Legislation Cited (5)