Right hand turn treatments from Butler Avenue having regard to the geometry of Alfred Road

1. All traffic experts agree, and indeed it is obvious that, the Proposed Development will involve a significant intensification of the use of the Butler Avenue/Alfred Road intersection.
2. All traffic experts agree that, having regard to the increased volume of traffic arising from the Proposed Development, some kind of intersection treatment is warranted to deal with right hand turns from Alfred Road into Butler Avenue based on the current traffic management guidelines Austroads Guide to Traffic Management (Austroads): Exhibit 22 at para 5.1.
3. The purpose of such a treatment is to prevent rear end crashes by providing a degree of separation between traffic slowing to turn right into Butler Avenue: ts 319, 21 October 2021. Mr Levey suggests, as is shown in Figure 12 of his statement (Exhibit 11), that Alfred Road may be widened to become a two lane road to provide a right hand turning lane into Butler Avenue.
4. However, all traffic experts agree that, in the context of the current road geometry of Alfred Road, there is no scope to accommodate any type of channelised right turn treatment for Butler Avenue: Exhibit 22 at para 5.2.
5. The intersection with Butler Avenue is one of only three intersections along Alfred Road, from over 20, that does not have some form of traffic treatment. Mr Symmons explains that this is because of the current low traffic volumes and the crash history (of one crash in five years): Exhibit 18 at paras 68 and 71; ts 320, 21 October 2020.
6. Because a right hand turn treatment into Butler Avenue is not, at this time, possible, a car waiting to turn into Butler Avenue will impact traffic flow on Alfred Road as there is an inability for vehicles to safely pass.
7. As stated above, Mr Levey has shown how Alfred Road could be widened to allow a passing lane: Exhibit 11, Figure 12. However, Mr Levey's proposal is targeted at ensuring traffic on Alfred Road can flow. He does not rely on Figure 11 per se: ts 206, 20 October 2020. His suggestion does not make the right hand out from Butler Avenue safer but may provide for more 'gaps' in traffic: ts 200, 20 October 2020.
8. However, Mr Patterson and Mr Symmons consider that Mr Levey's proposal will result in a new traffic risk. That is, in circumstances where there is a green light at the Alfred Road and Rochdale Road/Myera Street intersection, the additional turning lane proposed by Mr Levey would operate, in effect, as an 'overtaking lane': ts 202, 20 October 2020. Mr Symmons considers that a vehicle using the right hand lane as an overtaking lane increases the risk of rear end crashes from vehicles turning right into Butler Avenue.
9. Mr Patterson made the following comment on Mr Levey's proposed widening of Alfred Road (ts 205, 20 October 2020):

WITNESS, PATTERSON: So I think there are some challenges (indistinct) with the right turn into Butler Avenue I would agree, the warrants for the right turn treatment are there to prevent, in part, rear end crashes by separating the right turn slow, slow down and stop vehicles waiting for that gap in westbound traffic to turn into Butler Avenue. This treatment as such still has those vehicles potentially in that through traffic stream. So it doesn't necessarily decrease that likelihood. And given the likelihood it will increase with the increased number of right (indistinct) as a result of the proposed development, the crash severity will be the same and the likelihood will increase, in my opinion.

1. In an overall sense, neither Mr Bordbar, Mr Veal nor Mr Levey (aside from his road widening proposal) consider that any treatment to the intersection of Alfred Road and Butler Avenue is required arising from the Proposed Development.

1. The sightlines east of Butler Avenue down Alfred Road raised a safety issue for the traffic experts. This is so for a number of reasons:

(a) the distance between Butler Avenue and the intersection of Alfred Road and Rochdale Road/Myera Street;

(b) the bend in the alignment of Alfred Road; and

(c) the vegetation within the Alfred Road road-reserve blocks or obstructs sightlines.

1. All experts agreed that the existing sight distance east for drivers exiting Butler Avenue is insufficient and that removal or at least pruning of vegetation within the road reserve would improve conditions: Exhibit 22 at para 3.1. The experts disagreed as to the level of pruning required or even whether pruning would be acceptable having regard to the amenity values of the landscaping in question.
2. Mr Bordbar and Mr Levey consider that trimming the trees would be sufficient: Exhibit 22 at para 3.2.2. Mr Veal and Mr Patterson consider that the tree trunks need to be removed in order to improve sight distance: Exhibit 22 at para 3.2.3.
3. Mr Symonds queried whether the Town would support removal of the trees due to their environmental and amenity values: Exhibit 22 at para 3.2.1.
4. Importantly, all experts agreed that sight distance east of Butler Avenue needs to be improved in order for the Proposed Development to proceed: Exhibit 22 at para 3.3.
5. The experts agree (Exhibit 22 at para 3.4) that the three levels of minimum Safe Intersection Sight Distance (SISD) are defined by Austroads 'Guide to Road Design Part 4A: Unsignalised and Signalised Intersection' (Austroads Guide Part 4A) and are:

(a) 123 metres as defined in Austroads Table 3.2 under Normal Design Domain (NDD) conditions;

(b) 97 metres as defined in Austroads Table A10 under the Extended Design Domain (EDD) conditions, primarily for assessing the sight distance capability at existing intersections, based on an observation time of 2.0 seconds;

(c) 89 metres as defined by Austroads Table A9 under EDD conditions based on an observation time of 1.5 seconds.

1. Figure 10 of Mr Levey's statement (Exhibit 11) shows these sight lines for the NDD and EDD conditions (including observation times of 1.5 and 2 seconds).
2. There was a dispute between the experts as to whether the figures contained in the Main Roads Western Australia Supplement (MRWA Supplement) ought to be applied (which are more conservative than the EDD). For example, under the MRWA Supplement to Austroads Guide Part 4A, the sightline extends to 106 metres, not the 97 metres set out at [284(b)] above.
3. It is the wording of the MRWA Supplement which is far from clear. The opening text of the MRWA Supplement includes the following:

'In Western Australia, Main Roads' policies, guidelines and standards take precedence over Austroads Guides and Standards Australia Standards.'

'This guideline applies to all new works on roads managed by Main Roads'.

1. Mr Bordbar says that the MRWA Supplement is only expressed to apply to Main Roads' roads and projects: Exhibit 22 at para 3.5.2.
2. Mr Patterson considers that the application of the MRWA Supplement is not limited to just Main Roads roads. He considers that the words 'applies to all new works on roads managed by Main Roads' are not words of limitation.
3. Mr Patterson considers that the reason why the MRWA Supplement does not say 'all roads' is that such wording may cut across any specific requirements put in place by a local government: ts 328, 21 October 2020. Mr Patterson further queries why would you apply a national guideline, which deals with 'hook turns in down town Melbourne', when there is a local standard available: ts 328-329, 21 October 2020.
4. The applicant's experts consider that achieving either of the EDD distances would be adequate: Exhibit 22 at para 3.6.1.
5. Mr Symmons considers that the NDD should be met and that intensifying the use of the intersection, in circumstances where sight lines are in issue, may result in an increase in crashes occurring: Exhibit 22 at para 3.6.2.
6. Mr Patterson considers that the EDD and the MRWA Supplement ought to be applied to the figure and sightlines of 106 metres should be achieved having regard to the posted speed limit of 60 kilometres: ts 227, 20 October 2020.
7. It is not strictly necessary for us to determine whether the requirements of Austroads Guide Part 4A or the MRWA Supplement should apply. However, we consider that Mr Patterson's opinion is correct with respect to the MRWA Supplement. In our view, the MRWA Supplement goes as far as it can in stating that it applies to its road projects. We agree with Mr Patterson that the words 'applies to all new works on roads managed by Main Roads' are not words of limitation.
8. Because we agree with Mr Patterson's approach, it follows that we do not agree with the opinions of Mr Levey, Mr Veal, Mr Bordbar nor Mr Symmons on this question.
9. However, while we consider that the existing intersection is below the recommended traffic engineering guidance, we ultimately accept the applicant's submission that this is a long standing existing intersection: Applicant's closing submissions at para 91(a).
10. It is also the case that the crash data for the intersection of Alfred Road and Butler Avenue and the signalised intersection identifies neither intersection as a 'Black Spot' under the MRWA or Federal Black Spot Program criteria: Exhibit 22, para 4.2.
11. In any event, the safety status or otherwise signalised intersection at Alfred Road and Rochdale/Myera Street is ultimately not the question before us. While we accept that it is an existing intersection and that it does not have a 'Black Spot' level crash history, the fact remains, on any view, the sight distance to that intersection is, at best, very tight.
12. That informs the planning question as to whether the correct and preferable decision to allow the Proposed Development which will increase, significantly, the volume of cars that seek to turn right from Butler Avenue onto Alfred Road.
13. We will return to this discussion later at [320].

Crash risks arising from more traffic exiting Butler Avenue.

1. By reason of the increase in traffic entering and, in turn, exiting Butler Avenue, a further issue is that the bare number of crashes may increase. That is, while the severity of a crash may be unchanged, the exposure to that type of crash is increased. Mr Patterson's evidence on this is as follows (ts 235-236, 20 October 2020):

IDE, MS: How does the number of vehicles associated with the development impact on the risk-safety that you talked about? What's the correlation or connection there?

WITNESS, PATTERSON: So when in my experience in - in looking at road safety and particularly around risk, generally that - that is made up of three constituent parts: the severity, which relates to if an impact was to occur, what is the injury that occurs; the likelihood of that, given the environment, would occur; and the exposure to that based on the traffic volume. And from here, I guess I am suggesting that the severity doesn't change what it is at the moment.

But the exposure part of that equation will increase, and the likelihood will probably stay (indistinct) that right turn, and with that right turn, a (indistinct) system threshold - that is, a threshold that tries to limit serious hospitalisation injuries and fatal injuries, the speed threshold for a right-angle crash, which would be the predominant - most likely the predominant crash type for that right-turn movement out with the westbound vehicles colliding with that, is 50 kilometres an hour. So what that says is over 50 kilometres an hour there is a high likelihood of serious injury or a fatality with that right turn out.

IDE, MS: And what

WITNESS, PATTERSON: if a crash was to occur.

IDE, MS: Sorry. And what's the speed here?

WITNESS, PATTERSON: 60 kilometres an hour, posted.

IDE, MS: So is it correct then to say in aggregation of those three points (indistinct) exposure, exposure will increase? Does that mean that the risk safety profile of the intersection as a whole increases, or have I misapprehended your evidence in that regard?

WITNESS, PATTERSON: My view would be it would, yes.

WILLEY MR: So increasing the exposure alters the overall risk?

WITNESS, PATTERSON: Correct. Yes. So they're multiplicative.

1. No other traffic expert dealt with potential for increased risks of 'severe' (or right angle crashes) in the way that Mr Patterson did. The closest that Mr Veal came to address this question was the following (ts 283-284, 21 October 2020):

WITNESS, VEAL: What I would like to say is that the development application is for a child care centre and for a driveway upgrade onto Butler Avenue. There is no planned changes to any of the road network at all. The WAPC guidelines say that you just need a transport impact statement and because the traffic volumes that it's generating are less than 100 vehicle movements in the peak hour. And that was - that has been looked at.

We've gone beyond that to actually investigate the existing intersection as opposed to just traffic signals with Rochdale and the Butler-Alfred intersection. Clearly, the Butler-Alfred intersection has got some sight line distance issues. These were flagged up in the road safety audit and the road safety audit recommended that the sight lines can actually be improved now irrespective of the child care centre application.

It's really incumbent on the road authority, in this case the Town of Claremont, to assess that. I understand that the sight distances are compromised by vegetation on the - along the verge there, and to improve that. Regardless of the application, there is 160 vehicles a day in and out of that intersection, which translates into about a quarter of a million vehicle movements over the last five years that have turned in and out of that intersection.

So those occurred over the last five years with sight lines compromised as they are. During that period, there has been one recorded crash which happened about a quarter past midnight on a weekend, and this wasn't during the peak hour. So it's not sort of down to gap acceptance. This was a vehicle that turned left out of Butler Avenue and managed to collide with a westbound vehicle going through the intersection. How that occurred when you think it's at night and headlights, you would be lucky to hit a vehicle or find one to hit at that time of the morning, a quarter past midnight.

So why that crash occurred, it has nothing to do with the peak traffic volumes or that it's getting too congested. That's the only crash that has happened out of the quarter of a million vehicles that have turned in and out of that road over that period. So my take on the sight line issue is it needs to be improved, or it should be improved to get closer to the standards that already exist. But we're not looking at any changes to that intersection as part of the development application.

1. We agree with Mr Patterson that, as a matter of logic, the more cars making a right hand turn from Butler Avenue, having regard to the existing situation at the intersection, inevitably leads to an increased risk of a severe right angle crash. We will return to discuss this issue further at [320(g)].

1. Like the acoustic experts, the traffic experts addressed car parking.

1. All traffic engineers agreed that the Proposed Development met the requirements of LPS 3 in relation to the number of car parking bays provided (27). Mr Symmons, however, did not agree as no reciprocal parking arrangements are involved. Mr Symmons considers that child care centres are to be located in commercial areas where suitable reciprocal parking arrangements will be available. We do not accept Mr Symmons opinion in this regard. A child care centre may be located on residential zoned land in a residential context. There is no requirement to have at hand a surplus of available car parking.

1. The traffic experts disagreed on the question of whether additional queuing space was required within the premises to avoid spilling out onto Butler Avenue. There was also disagreement as to how often vehicles would spill out onto Butler Avenue.
2. Mr Symmons is concerned about the lack of vehicle queuing space in the context of AS2890.1 (3.4) and that, as a consequence, cars will park on street with Butler Avenue: ts 245, 20 October 2020.
3. Mr Bordbar, Mr Levey and Mr Veal are not concerned as they consider the relevant standard only applies to control points such as boom gates and ticket machines. They also consider that parents with young children are going to be disinclined to utilise on street car parking. However, each expert agreed that the plans needed to be 'tweaked' in order to work: ts 246, 20 October 2020.
4. Mr Patterson considers, having regard to the proximity of the proposed tandem bays to the proposed crossover from Butler Avenue, that there is a reasonable risk of overflow parking on Butler Avenue: ts 250, 20 October 2020.

1. The experts disagreed regarding the use of the proposed tandem bays. In terms of how they are utilised, Mr Patterson considers that they should only be used by staff as such arrangements only work where the bays are being used for identical (or similar) periods: ts 249, 255, 20 October 2020. Mr Patterson is also of the view that tandem car parking arrangements require 'a very high level of oversight and management to ensure it operates as intended': ts 249 - 250, 20 October 2020.
2. The remaining experts consider that tandem bays could, in effect, be shared between staff and visitors.
3. The respondent considers that the reliance on tandem bays is an issue by reason of their location adjacent to the car park entrance. One of the tandem bays also has a structural support beam located within it. The length of the tandem bays was also an issue (in order to be able to safely park two vehicles in a tandem format).

1. All traffic (and acoustic) experts agree that the car park arrangements are such that the use of the car bays immediately adjacent to residential neighbours before 7am should be prevented. This is on account of car doors closing. That leaves only nine of the 27 bays suitable for use prior to 7am.
2. The applicant's experts (Mr Levey) considered that the nine car bays (six of which are marked as staff car bays) would be sufficient for this time: ts 262, 20 October 2020. Mr Patterson was not as sure that nine car bays would be sufficient: ts 263, 20 October 2020.

1. Clause 67(2) of the Deemed Provisions includes various subclauses which raise for consideration issues relating to traffic. These include cl 67(2)(s) which relates to the proposed means of access and egress including car parking arrangements.
2. Clause 67(2)(t) of the Deemed Provisions focuses on the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.
3. In an overall sense, the traffic issues incline us to the view that the Proposed Development should not be approved. Our reasons for that view on traffic considerations are as follows.
4. The exercise of planning discretion pursuant to cl 67(2) of the Deemed Provisions does not require us to reach the view that the proposed arrangements are unsafe or unacceptable. Rather we are to consider the 'adequacy' of those proposed arrangements as well as the capacity of the road system and the probable effect on traffic flow and safety.
5. While the Proposed Development will simply utilise the existing access and egress arrangements from Butler Avenue, we find that the access arrangements which will, in almost all instances, rely on the intersection of Alfred Road and Bulter Avenue are problematic.
6. We say 'problematic' for the following nine reasons:

(a) Firstly, on any view, the width, alignment, orientation and geometry of Alfred Road is not ideal in terms of the intersection with Butler Avenue. There is also no current potential (or plans) to widen Alfred Road.

(b) Secondly, the distance to the intersection of Alfred Road and Rochdale Road/Myera Street is also an issue. We do not need to determine, in any final sense, whether the Main Roads Supplement should apply or whether the Austroad Guidelines prevail. What is clear from all of the experts is that the distance to the intersection is already a significant traffic issue (although we note the crash data at this point). We consider it to be a safety issue.

(c) Thirdly, the experts are not clear whether clearing the vegetation on Alfred Road will adequately resolve the issue. While all experts agree it will assist, there is a level of disagreement as to whether trees should be removed.

(d) Fourthly, it is also clear to us that the Proposed Development is a child care centre of a significant scale. In the context of Butler Avenue, the Proposed Development is a very significant development. Of course, we do not say that the increase in traffic is such that it raises road capacity issues, but the increase is still significant in its context.

The right hand turn from Alfred Road into Butler Avenue is a manoeuvre that is an issue because of the nature of Alfred Road and the potential for traffic queuing behind. Without the capacity for a right turn arrangement, that existing traffic issue will be exacerbated by the Proposed Development.

(e) Fifthly, the right hand turn out from Butler Avenue is particularly problematic in our view, especially in peak periods during which there will be traffic approaching and leaving the intersection, the proximity of which is not ideal and for which there are sightline issues.

(f) Sixthly, the right hand turn onto Alfred Road may also have to contend with intersection queuing. That not only creates a traffic safety issue but is also an amenity issue for residents within Butler Avenue that will have to utilise the intersection along with the parents and staff of the Proposed Development.

(g) Seventhly, we also accept Mr Patterson's view that the right hand turn increases the exposure to a right hand crash which, at moderate speeds, can be catastrophic.

(h) Eighthly, the proposed car park arrangements, as a matter of traffic management, are less than ideal. We agree with Mr Patterson that there is reasonable likelihood that, including by reason of the location of the tandem bays, vehicles will, at times, need to queue on Butler Avenue before being able to access the car park. In this residential context, we consider that is an outcome that is not appropriate. However, we do acknowledge that, given the location of the Land, any queuing will be confined to the area adjacent to the intersection of Butler Avenue and Alfred Road.

(i) Finally, we also query whether the car parking arrangements for early morning arrivals will work in a practical sense. While staff parking 'quietly' before 7am can be readily envisaged and managed, we are far less optimistic that parents, and in particular, children will be mindful of the need to respect the amenity of neighbours during that early morning period.

In Ursula Frayne the Tribunal noted that the use of the 'green space' was reliant on the conduct of school students who are not a party to the proceeding: at [196]. The same considerations apply here. The parents (and their children) arriving before 7am are not a party to this proceeding and while every effort may be made to inform parents (and students) of the need to respect the amenity of neighbours, there can be no guarantee that this regime will work effectively each and every day the Proposed Development is open.

1. These issues, taken together, are of concern and indicate to us that, from a traffic and car parking perspective, the Proposed Development does not satisfy the requirements of cl 67(2)(s) and cl 67(2)(t) of the Deemed Provisions.

1. The planning evidence focused on the question of noise, traffic (including car parking) and visual amenity. We have already addressed noise and traffic in terms of the acoustic and traffic engineers, however these are also questions for planners.

1. Mr Algeri considers that the exceedance of the assigned levels of the Noise Regulations makes a proposed development a 'no go': ts 539, 22 October 2020. Mr Algeri also considered that, on the question of compliance with the Noise Regulations, it was appropriate to consider what measures were required to achieve such compliance.
2. Mr Algeri considered that reliance on the successful implementation of a management plan to achieve compliance was not acceptable. Mr Algeri's opinion that management plans, of themselves, cannot be relied upon to ensure that noise is adequately managed finds support in Tribunal authorities such as: Love and City of Joondalup [2006] WASAT 69 at [37]; Land Alliance at [42].
3. In Evangel Christian Fellowship Inc and Shire of Serpentine Jarrahdale [2017] WASAT 159 (Evangel) the Tribunal stated the following (at [83]):

The remedial measures required are fairly extensive and many of the measures rely on active ongoing management. Given the nature of the potential noise sources and the complexity of effectively managing such activities (children playing, door opening during functions, limiting numbers in the breakout area), the Tribunal is not confident that these measures can be put in place and effectively maintained at all times.

1. Mr Stewart, the planner called by the applicant, is of the view that if the assigned levels in the Noise Regulations are complied with, then noise emissions are not unacceptable for the purposes of a planning assessment: ts 539, 22 October 2020. As the Tribunal recently noted in Cann and Shire of Augusta-Margaret River [2021] WASAT 22, Mr Stewart's approach to noise is contrary to established Tribunal authorities: at [57].
2. In any event, having regard to the noise evidence of Mr Warpenius, which we accept, we are not satisfied that the noise emissions from the Proposed Development will comply with the Noise Regulations in terms of the two immediately adjacent residential properties at 160B Alfred Road and 4 Butler Avenue. In our view, the noise emissions from the Proposed Development are unacceptable in a planning sense irrespective of whether the emitted noise is community noise for the purposes of the Noise Regulations.
3. It follows that we do not accept Mr Stewart's evidence on the question of noise.

1. Mr Algeri's evidence on traffic was to the effect that, having regard to the concerns expressed by the respondent's traffic engineers in relation to the intersection between Alfred Road and Butler Avenue, that a '[p]otentially, bad situation is being made worse': Exhibit 21 at para 158.
2. Mr Stewart's set out in some detail his comments on the range of traffic issues that were considered by the traffic experts, in particular those called by the applicant. His ultimate opinion in this regard is that the 'cumulative [traffic] impact on the amenity is minor in nature': Exhibit 21 at para 83.
3. For the reasons we set out at [320], we consider that the traffic considerations militate against the Proposed Development. While we accept that there is capacity in the road network to accommodate the Proposed Development, we are concerned about safety issues. Each of the traffic experts agreed that the existing intersection at Alfred Road and Butler Avenue is not ideal.
4. Along with our concerns over safety, all experts agree that the result of the Proposed Development will be increased waiting times on Butler Avenue trying to turn right. The average expected time increase is expected to be 3.5 seconds, but that 'average' increase is going to be felt most acutely in peak periods. In this regard we accept the evidence of Mr Symmons: ts 220, 20 October 2020. That is a further adverse amenity impact that arises from the Proposed Development.
5. We therefore share Mr Algeri's view that the Proposed Development is potentially going to make a bad situation worse by intensifying the use of the intersection, especially during peak periods. We do not accept Mr Stewart's opinion that the Proposed Development will cause only minor traffic issues. In our view, the likely traffic impacts arising from the Proposed Development are not minor, but are likely to be substantial.

1. Mr Stewart considers that visual impacts of the hardstand area 'is an acceptable outcome that will not impact on the streetscape and amenity of the locality': Exhibit 9 at para 75. He notes that driveways are typically brick paved in this locality.
2. Mr Stewart notes that other properties on Alfred Road have substantial hard stand areas. He further notes there is a property which contains a tennis court on Butler Avenue.
3. Mr Algeri commends the proposed use of brick paving as it has a 'residential aesthetic as opposed to commercial developments that are more likely to have an asphalt surface': Exhibit 9 at para 86. However, Mr Algeri is concerned about the scale and extent of the proposed hardstand area. Mr Algeri calculates that hard stand area to be 840m2 which equates to 45% of the area of the Land.
4. Mr Algeri considers the scale of the hardstand area 'is not in keeping with the character of surrounding development and will be unsightly on a prominent corner site': Exhibit 21 at para 87.
5. We agree with Mr Algeri. The scale of the hardstand to accommodate the parking arrangements necessary for the Proposed Development is incompatible with its planning context. That planning context is largely suburban. The inclusion of 840m2 of brick paving on the Land would be alien and unsympathetic in its context. The amount of brick paving proposed is almost four times the hardstand area of any other property referred to by Mr Stewart.
6. As an aspect of visual amenity, the applicant points to the rundown state of the existing dwelling on the Land. The applicant points to the fact a new development will be an improvement on the existing state of the Land. That submission may be accepted. However, the question for us is not whether the Proposed Development will be an improvement on the existing visual presentation of the Land. Rather, the question is for us is whether the Proposed Development is acceptable having regard to the impacts that will arise in its context having regard to the applicable planning framework.

1. Before we set out our relevant findings on this issue, we turn first to a construction issue that was in contest between the parties. That issue is the effect of cl 14(3)(d) in the context of uses which are 'SA' for the purposes of LPS 3.

1. Under LPS 3, the nature of an 'SA' use is that the 'Council may specially approve' of such uses provided that the proposal in question has been advertised pursuant to cl 64 of the Deemed Provisions.
2. The contest between the parties appears to relate to cl 14(3)(d) and subclause (vii) and the requirement that a use may only be approved if it 'will not have any adverse or detrimental effect on the residents or of the amenity of or properties in the locality'.
3. The applicant submits that cl 14(3)(d)(vii) is inconsistent with cl 67(2) of the Deemed Provisions and therefore, by reason of s 257B of the PD Act, of no effect.
4. That submission cannot be accepted. There is no inconsistency between cl 67(2) and s 14(3)(d) of the LPS 3. If there is a relevant inconsistency it is between cl 67(2)(n) and cl 86(2)(e) of LPS 3, which provides that a relevant consideration for the Town in the exercise of discretion is 'the need to preserve the amenities of the locality'.
5. As was explained in Ursula Frayne, no relevant inconsistency arises where a particular provision sets out the amenity expectations for particular localities: at [50]­[56]. The Deemed Provisions do not mean that there cannot be general and specific considerations within local planning schemes; nor do the Deemed Provisions displace the requirement for a local planning scheme to be read as a whole: Project Blue Sky at [69]. Clause 14(3)(d) is a provision which sets out that, in the context of SA uses, there is a requirement for the proposal in question to not generate adverse planning impacts for the relevant locality.
6. Of course, cl 14(3)(d)(vii) of LPS 3 is a provision that has to be interpreted sensibly and consistent with its town planning purpose. It is not the case that any 'adverse or detrimental effect' must result in a proposal being refused in the exercise of discretion. Any adverse or detrimental impact must be such that it has tangible adverse or detrimental town planning consequences.
7. The applicant says that the test should be whether the impact is 'unacceptable' in planning terms. We do not disagree with this. This is because the word 'unacceptable' takes its meaning from the context in which it is used. In this instance, the meaning of cl 14(3)(d)(vii) is clear. Applied in its context it means that only minor amenity impacts may be tolerated. That is, if there is an adverse or detrimental amenity impact that is of tangible town planning consequences, then that impact is 'unacceptable' having regard to cl 14(3)(d)(vii).
8. We should also say, for the avoidance of doubt, that cl 14(3)(d)(vii) is not the provision on which this case turns. The combination of the amenity impacts arising from traffic, car parking, noise and the visual amenity considerations take the impact of the Proposed Development beyond the low tolerance level of amenity impacts that may arise from cl 14(3)(d)(vii) of LPS 3. Even without cl 14(3)(d)(vii) in LPS 3 we would have made the same decision.

1. Pursuant to cl 67(2) of the Deemed Provisions, we are required to give 'due regard' to the relevant factors that inform the exercise of discretion. It is also the case that we are required to have 'due regard' to 'relevant planning considerations' including any State planning policy which may affect the subject matter of the application: s 241(1)(a) PD Act. The term 'relevant planning considerations' is plainly one of 'broad import': Zampatti v Western Australian Planning Commission [2010] WASCA 149, (2010) 176 LGERA 150 at [12] (Kenneth Martin J).
2. In the context of the PD Act, the term 'due regard' has been interpreted to mean that we must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 at [46] (Martino J).
3. It is also the case that in giving 'due regard', we are not required to give a consideration any particular, or minimum, weight. The task should be approached flexibly in the sense set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41].
4. It follows that regardless of our findings in relation to any particular factor that arises under cl 67(2) of the Deemed Provisions we have discussed in the reasons, there remains discretion to approve the Proposed Development.
5. Before we proceed further, we must first address LPP 206 which is a local planning policy and therefore a relevant consideration pursuant to cl 67(2)(g) of the Deemed Provisions. The weight to be given to LPP 206 was also an issue between the parties.

1. We have set out in detail the provisions of LPP 206 at [67] - [76]. LPP 206 includes a number of provisions which might provide some difficulty for the Proposed Development. For example, LPP 206 provides that child care centres should be 'close to or part of appropriate commercial, recreation or community nodes or education facilities'. Preferred locations include lots zoned 'Local Centre, Town Centre, Highway or Education or on Residential lots immediately adjacent to these zones'.
2. Furthermore, LPP 206 provides that child care centres are not be located 'where access is from major roads or in close proximity to a major intersection where there may be safety concerns or where access is from a local access street which may result in traffic, parking or associated amenity concerns in the street'.
3. The applicant asserts that LPP 206 is a 'reactive' policy in that it was a policy formulated by the Town in response to the lodgement of the Proposed Development.
4. We were taken through the relative history of events. It can fairly be surmised that having received the Proposed Development (in April 2019) the Town realised it had no policy framework in place. The Town then set about formulating a policy which became LPP 206 which was adopted in June 2019. The current planning framework includes LPP 206 although it did not at the time the Proposed Development was lodged with the Town.
5. There is a long line of Tribunal authorities which suggest that, as a general principle, 'little weight' should be given to a policy which is a 'substantive response to a particular pending development application': Ridgecity Holdings Pty Ltd and City of Albany [No. 2] [2006] WASAT 187; see also McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 [87]­[89], Vespoli and City of Stirling [2013] WASAT 161 at [41] - [45] and Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86 at [61].
6. In BHY Alexander Unit Trust and City of Nedlands [2021] WASAT 41 the Tribunal recently outlined (at [43]) that the concern with reactionary policies is that:

... Such a policy is unlikely to be based on sound town planning principles, is unlikely to have been conceived after considerable public discussion, would be in operation for a relatively short time and would not have been continuously applied (and, indeed, would be intended to be applied for the first time in assessing the particular pending development application). Furthermore, obviously, the pending development application would not have been conceived and designed to address a planning policy which was formulated in response to it. While strategic planning is necessarily fluid and constantly evolving, orderly and proper planning is premised on strategic planning guiding the formulation and assessment of development applications, rather than a particular development application being the catalyst for the formulation and adoption of a planning policy that is then used to assess that application[.]

1. We generally agree with these authorities. However, we would emphasise that a local planning policy made pursuant to the requirements of Div 2 of Pt 2 of the Deemed Provisions, which includes a mandatory minimum 21 day advertising period, should be regarded as prima facie a relevant consideration in the exercise of discretion pursuant to cl 67(2). It is also the case that, under cl 3(3) of the Deemed Provisions, a local planning policy is required to be consistent with sound planning principles.
2. Of course, the weight to be given to that policy is a matter for the decision-maker having regard to the relevant principles set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at 16 (Permanent Trustee), which were restated by the Tribunal decision in Land Alliance at [51] as follows:

(a) whether [the local planning policy] is based on sound town planning principles;

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

(c) whether it is a public policy conceived after considerable public discussion;

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

(e) whether it has been continuously applied.

1. In our view, the question of the weight to be given to that policy should be considered having regard to the fact as to whether the policy could be said to be consistent with sound planning principles as well as the other considerations identified in Permanent Trustee.
2. We say this having regard to the Court of Appeal's comments in Carcione Nominees Pty Ltd v Western Australian Planning Commission & Ors [2005] WASCA 56; (2005) 30 WAR 97; (2005) 140 LGERA 429 (Murray, Steytler and McKecknie JJ) (Carcione Nominees) where, in the context of what might be said to be a reactionary scheme amendment, it stated (at [90]):

By analogy of reasoning, it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister [for Planning] should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.

1. In Carcione Nominees the developer, who had an appeal pending in the then Town Planning Appeal Tribunal (TPAT), sought writs of certiorari and prohibition in relation to a scheme amendment process that was put in train in order to address the appeal pending before the TPAT. The application was dismissed by the Court of Appeal whose reasoning reflected the earlier decision of Brinsden J in Bonton Pty Ltd v City of South Perth [1982] WAR 213 at 219 - 220.
2. While it will often be the case that only limited weight can be given to a 'reactive' policy because it is relatively recent and has not been applied consistently, we would caution against the starting point being that such a policy should be given little weight, particularly if the policy itself is considered to have town planning merit. Of course, if the 'hastily' made policy has no planning merit, it follows that it should not be given any weight.
3. However, we see no reason why, as a matter of principle, what may be said to be 'hastily' made local planning policy, that has been duly made pursuant to Pt 2 of the Deemed Provisions, should not be subject to the ordinary evaluation of a policy in terms of the weight it should be afforded.
4. In this instance the amenity issues (arising from noise, traffic and the visual appearance of the hardstand) are such that it is unnecessary for us to grapple with the weight to be given to LPP 206, even if it strictly is 'reactionary'. While we consider that the Proposed Development does not appear to be consistent with the locational and other 'requirements' of LPP 206, in this instance, we have given LPP 206 little weight in the exercise of discretion.

1. The impact of the Proposed Development on the amenity of the locality is a central issue in these proceedings. It has been observed that 'except for 'development', 'amenity' is the hardest worked word in planning language': Ex Parte Tooth & Co Ltd; Re Parramatta City Council (1955) 20 LGR (NSW) 60; (1955) 55 SR (NSW) 282 at [306] citing a progress report from the Minister of Local Government and Planning in the United Kingdom entitled 'Town and Country Planning 1943-1951' (1951) Journal of Planning Law, p 377.
2. The case authorities and relevant principles on evaluating amenity in Western Australia are well-known and settled. For many years the leading authority was Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) where the former Town Planning Appeal Tribunal (at 304) set out a three-step test in terms of evaluating amenity. The relevant steps are:

(1) establish the existing amenity in an objective sense;

(2) evaluate the manner in which the proposed use will affect the existing amenity; and

(3) assess the degree of impact on the locality.

1. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Sunbay) Barker P (as he then was) generally endorsed the approach to amenity set out in Tempora (save for one exception as to how amenity is evaluated which is not presently relevant) and confirmed that an evaluation of amenity should take account of future amenity: at [22]. The need to consider future amenity is expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.
2. Tempora and Sunbay remain the leading authorities on the question of amenity: see for example The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 45 at [76]; Evangel at [54]; Urban Resources Pty Ltd and City of Swan [2016] WASAT 81 at [47] - [52]; John Cranston and Shire of Serpentine Jarrahdale [2019] WASAT 19 at [78].
3. Amenity arises as a consideration pursuant to cl 67(2)(n) of the Deemed Provisions. We have already set out in detail our findings on noise, traffic (and car parking) as well as the visual amenity impacts arising from the Proposed Development.
4. For the reasons we set out at [221] and [222] we accept the evidence of Mr Warpenius that the noise emitted by the Proposed Development is likely to exceed the assigned levels set out in the Noise Regulations. Regardless of whether that noise is 'community noise' for the purposes of the Noise Regulations, that level of noise will be unreasonable in a planning sense, particularly on 160B Alfred Road and 4 Butler Avenue.
5. With respect to amenity issues arising from traffic and car parking, for the reasons we set out at [320(e)] and [320(f)] we find that the Proposed Development will impact on the amenity of the residents of Butler Avenue in that it will increase, to a significant extent, the time taken to turn right onto Alfred Road, especially during the peak period.
6. On the issue of car parking, for the reasons set out at [320(h)] we find that the Proposed Development will, at times, have the effect that vehicles will have to queue in order to enter the car park, especially on account of the proposed tandem bays. As we set out at [338], the appearance of the hardstand is also problematic in this locality, given its size and scale.
7. We consider the noise and traffic issues to be particularly problematic from an amenity standpoint. The appearance of the hardstand is also far from ideal in what is, and what is planned to remain, a predominantly residential context. The issue of the car parking queuing we do not regard as being of the same significance.
8. We therefore find by reason of noise and traffic and the appearance of the hardstand that the Proposed Development will have an unacceptable impact on the amenity the locality.
9. Having viewed the Land and walked the length of Butler Avenue, we can understand the extent of the objections that have been raised by local residents, particularly those on Butler Avenue. We can understand why Ms Muirsmith considers that Butler Avenue is a 'special place'. That is no doubt due, at least in part, to the low traffic volumes on what is a relatively short cul-de-sac which provides a relatively safe haven for children to play.
10. While the Land is located at the intersection with Alfred Road, we consider that the impacts of the Proposed Development will be felt by all residents in Butler Avenue by reason of increased traffic as well as some parking. Having regard to the scale of the Proposed Development, we find these traffic amenity impacts to be unacceptable.
11. In reaching these findings, we have taken account of the fact the Land fronts Alfred Road which is a busy arterial road carrying a significant volume of traffic. That traffic already has amenity consequences in terms of noise and there are already difficulties associated with the intersection of Alfred Road and Butler Avenue. At some level, the amenity expectations of those who live closest to Alfred Road need to be tempered. As we set out at [97] in relation to the issue of noise, residents of these lots cannot have the same amenity expectations as those who live in a homogenous suburban environment.
12. However, even taking into account the context of the Land, the amenity impacts arising from the Proposed Development are unacceptable in our view. We say 'unacceptable' because of the range of impacts that arise and will need to be managed (to the extent that they can be managed). The noise impacts of the Proposed Development on the two closest dwellings (160B Alfred Road and 4 Butler Avenue) will be significant.
13. We note here that it is established law that a development can be refused based on the amenity impacts on one property. In Sunbay Barker J found at [28] that it is open:

... in a planning assessment to focus on the impact of a development on a particular part of the locality. Indeed, experience in planning assessment suggests that this will often be the case. Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property[.]

1. We therefore conclude that the Proposed Development will have an adverse impact on the amenity of the locality.

1. By reason of recent amendments to the Deemed Provisions, cl 67(2)(m) requires that we give due regard to:

the compatibility of the development with its setting, including -

(i) the compatibility of the development with the desired future character of its setting; and

(ii) the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development[.]

1. The question of compatibility arises by reason of the visual impact of the car park hardstand which, as we have found, will have adverse amenity impacts on the locality. For the same reasons we explained at [338], we also find that 840m2 of hard stand paving would not be compatible with the planning context of the Land. It is also the case that there is nothing in the 'desired future character' of this area which would suggest that it is an area where the introduction of significant non­residential development might be anticipated, especially at the scale proposed in this instance.
2. The Proposed Development is not compatible with its setting for the purposes of cl 67(2)(m) of the Deemed Provisions.

1. As we have explained at [315] traffic safety arises as an aspect of cl 67(2)(s) of the Deemed Provisions. We reiterate and rely on our findings at [320] in reaching our view that, while are there existing traffic issues in terms of access into, and egress from, Butler Avenue, we are concerned about the extent to which these issues will be exacerbated by the Proposed Development.
2. It is at this point when we note that the scale of the Proposed Development.
3. The Proposed Development is, by any measure, a significant child care centre. It will accommodate 90 children as well as staff. Although each proposal must be assessed on its merits and in its own context, by way of comparison, the proposed centre in Land Alliance was only for 80 children. By reference to [44], it is also larger than any other centre within close proximity of the Land. However, we accept it is not as large as some of the centres in the City of Nedlands.
4. In our view, when it comes to matters of traffic safety, it is no real answer to say simply rely on an argument that the existing situation is already a problem and that, sooner or later, the Town will need to act to address such issues.
5. We are not satisfied that access to, and egress from, the Proposed Development is appropriate for the purposes of cl 67(2)(s) of the Deemed Provisions.

1. As we explained at [159], the uncontested evidence of Mr Abery is that there is a relevant demand for childcare in this region. The provision of additional childcare places in this region is a relevant factor that inclines towards granting approval. It is also the case that the community 'need' for a particular service may be relevant in terms of assessing the 'impact' of a proposed development.
2. That is, pursuant to cl 67(2)(x) of the Deemed Provisions, if the community is, in an overall sense, positively impacted by a proposed development then that may, in some circumstances, be an acceptable planning outcome even where some individuals may be adversely impacted by that development.
3. In terms of weighing and balancing the various factors, community need goes in favour of approving the Proposed Development. We also find that considerable weight should be given to the question of need.

1. In the end, for a range of reasons, we find that the Proposed Development should be refused in the exercise of planning discretion.
2. In our view, the amenity impacts arising from the Proposed Development are unacceptable having regard to the planning context of the Land. As we have explained, the impacts of noise and traffic, as well as the appearance of the carpark hardstand, will, in our view, unreasonably compromise and erode the amenity of this locality. We consider that the Proposed Development will cause significant adverse amenity impacts for 160B Alfred Road and 4 Butler Avenue as well as the residents of Butler Avenue generally.
3. We are also concerned about traffic safety in terms of turning right from Alfred Road into Butler Avenue and also turning right from Butler Avenue onto Alfred Road. While we accept the existing traffic arrangements are not ideal, that, of itself, is no mandate to ignore or discount the safety issues that will inevitably arise having regard to the scale of the Proposed Development and the additional traffic movements it will generate.
4. In making this decision, we are mindful that the Proposed Development will provide an important community service in the form of additional childcare. The provision of a new child care centre in an inner city location would provide an important community service and function. However, in this instance, we are not satisfied that the community benefit arising from the Proposed Development outweighs its negative impacts such that approval should be granted.
5. Notwithstanding our findings on the various matters that arise for consideration under the Deemed Provisions, we acknowledge that we retain a discretion to approve the Proposed Development. However, the applicant has framed its case on the argument that the Proposed Development warrants approval pursuant to the applicable planning framework. For the reasons we have explained, we do not agree.
6. The applicant presented no further argument or evidence that the Proposed Development should be supported even in the event that we found (as we have) that it did not satisfy the requirements of the planning framework. While we expressly acknowledge that the Proposed Development will deliver a child care service that is needed in this area, in our view, that is not a sufficient basis on which to support the Proposed Development.
7. It follows that the correct and preferable decision is to affirm the respondent's decision to refuse the Proposed Development.

1. The decision under review is affirmed.
2. The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.