Refusal of child care centre - Urban development zone - Outline development plan - Medium density residential site in outline development plan - Ribbon development - Shire preferred location in commercial and mixed use area - Shire child care centre policy - Western Australian Planning Commission draft planning bulletin number 72 for child care centres - Noise - Adjoining residential development

Town Planning and Development Act 1928 (WA)

Community Services (Child Care) Regulations 1998 (WA)

Environmental Protection (Noise) Regulations 1997 (WA)

SPB (Australia) Pty Ltd and Ors v the Town of Claremont [2003] WATPAT 138

Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

1 The applicant applied to the Shire of Kalamunda to build a child care centre for 98 children that would operate from Monday to Friday from 8 am to 6 pm on lot 36 (356) Hale Road, Wattle Grove.

2 The Shire of Kalamunda refused the application because it believed the use to be contrary to the intent of the outline development plan for the area known as Cell 9. The Council also considered the use would have an adverse impact on the amenity of its neighbours and would be more appropriately located in the nearby retail centre or the mixed use precinct.

3 The applicant argued that a child care centre is more appropriately located in a residential area and can be developed without having an adverse impact on its neighbours.

4 The Tribunal found that the subject land is a site on which non-residential uses can be located without compromising the Outline development Plan. Experts on noise have provided reports on the potential impact of the proposed child care centre on future neighbours. To ensure a proper level of amenity for the future neighbours, those neighbours would have to be constrained in the type of houses they could build. The Tribunal has concluded that it is too uncertain that any conditions imposed on the developers of the child care centre will ensure the development of neighbouring houses at an acceptable level of amenity. The application has therefore been dismissed.

5 This is an application by Sunbay Developments Pty Ltd (applicant) for review of the refusal by the Shire of Kalamunda (respondent) to grant planning consent for the proposed development of a child care centre on lot 36 Hale Road, Wattle Grove. Lot 36 has an area of 1.0538 hectares and also has frontage, on the south western boundary, to the end of Lenihan Corner, a local access road about 85 metres from the Hale Road frontage.

6 Relevant in this matter is that in May 2005, the Western Australian Planning Commission (Commission) granted conditional approval for the subdivision of lot 36 (WAPC ref 127395) (approved subdivision). The conditions of approval imposed by the Commission have not yet been cleared and no Deposited Plan has been approved. For ease of reference the boundary on Hale Road will be considered herein as the southern boundary of lot 36 with the lot extending to the north of the road.

7 The approved subdivision will result in Lenihan Corner being extended eastward across lot 36 then turning south to extend along the eastern boundary to Hale Road. North of the Lenihan Corner extension will be a 3772 square metre lot to become a reserve for recreation. South and west of the Lenihan Corner extension and fronting onto it will be four residential lots of 318 square metres facing north and three lots of 312 square metres facing east. The rear boundary of the four larger lots and the side boundary of one of the smaller lots will be common with a 2526 square metre lot on the corner of Hale Road and Lenihan Corner. It is the proposed 2526 square metre lot that is the site of the child care centre and will be referred to hereunder as the subject land.

8 In March 2005, the applicant's initial application for approval of a child care centre on the subject land was refused by the respondent. The applicant then commenced these proceedings in the Tribunal. From a mediation session conducted by the Tribunal, amended plans were presented to the respondent.

9 The proposed child care centre is a single storey building on the Hale Road frontage of the subject land. Between the building and the northern boundary common with the proposed residential lots will be a car park for 28 vehicles, including staff parking and a disabled bay, with entry off Lenihan Corner. The main entrance to the child care centre is from the car park.

10 The number of children to be cared for would be 40 kindergarten children of 3 years to 6 years of age; 30 toddlers of 2 years to 3 years; and 28 babies of 0 to 2 years, a total of 98 children. Each of these age groups would have separate activity spaces inside the building. Also in the building would be the necessary sleeping, toilet, kitchen and staff facilities. The babies would have outside play areas between the building and boundary of the residential lots to the west, the toddlers' outside play areas would be between the Hale Road frontage and the building and the kindergarten children play areas would be between Lenihan Corner and the eastern end of the building.

11 The applicant's opening submission states that the child care centre would operate from 8 am to 6 pm Monday to Friday.

12 The respondent's refusal of the revised plans in July 2005 states:

"(a) The development is considered to be contrary to the intent of the outline development plan and would be more appropriately located in the neighbourhood shopping/mixed use precinct on Hale Road.

(b) That Council supports the planning bulletin of the WAPC of June 2005 on child care centres.

(c) That the proposal is contrary to the WAPC planning draft bulletin for child care centres."

13 Lot 36 and therefore the subject land is in what is known as "Wattle Grove Urban Cell Number 9" (Cell 9). Cell 9 is a triangular shaped neighbourhood bounded by Roe Highway to the north west, the Tonkin Highway to the north east and as the base of the triangle, Welshpool Road to the south, all of which are primary regional roads. Hale Road, a district distributor, divides Cell 9 in two running from the centre of the Tonkin Highway boundary generally south west to near the intersection of Welshpool Road and Roe Highway.

14 Most of the land in Cell 9 and the all of the land in the vicinity of lot 36 is zoned "Urban" under the Metropolitan Region Scheme and Urban Development under the Shire of Kalamunda District Planning Scheme No 2 (DPS 2).

15 It was common ground that the proposed use is properly classified as a "Child Care Centre (including Day Care and Family Care)" in DPS 2, even though this use is not defined in DPS 2. The definition for the use was agreed as set out in the Community Services (Child Care) Regulations 1998 (WA) pursuant to the reference in cl 1.13 of DPS 2 to the Town Planning Regulations 1997 (WA).

16 The urban development zone is not included in the zoning table of DPS 2 and so has no uses classes associated with it under that table. The objective of the urban development zone is stated at cl 6.13(a) of DPS 2 which provides that:

"(a) It is intended that land in this zone be progressively developed for residential purposes and for commercial and other uses normally associated with residential development."

17 Clause 6.13(b) of DPS 2 requires the submission and approval by the respondent of an "Outline Development Plan" (ODP) for the whole of the urban development zone prior to the approval of any development upon land zoned urban development. The ODP for Cell 9 was adopted by the respondent in September 2000 and by the Commission March 2001.

18 Clause 3.6 of DPS 2 states:

"No person shall use any land or any building or structure in an urban development zone, except for the purpose shown on the outline development plan and in accordance with cl 6.13."

19 Some departure from or alteration of the ODP is provided for at cl 6.13(h), which states:

"(h) if the council considers that a proposed departure from or alteration to an approved outline development plan will not prejudice the progressive development of an area and is in the interest of orderly and proper planning, council may resolve to either:

(a) not advertise the departure or alteration due to its anticipated minimal impact on the development of the locality and for the departure or alteration to the commission for adoption; or

(b) advertise the departure or alteration in accordance with a procedure and period specified by council and observe the provisions of clauses 6.13(e) and 6.13(f)."

20 The ODP divides lot 36 along the extension of Lenihan Corner with the designation residential R30 to the south and public open space to the north of the road. Eastward from lot 36 along Hale Road the ODP designates, in turn, lot 35 as public open space, then lot 34 and lot 33 as neighbourhood centre, also referred to as retail, and then lot 32, lot 31 and a portion of lot 30 as mixed use. Each of these lots is about the same area as lot 36 and each also has a strip of public open space along the northern end. All are still used for the rural-residential purposes that previously characterised entire Cell 9. The mixed use lots are about 150 metres from the subject land.

21 Immediately abutting the western boundary of the subject land the land is designated residential and is subdivided into residential sized lots. North of the open space portion of lot 36, the land is shown as residential in the ODP. These residential areas are yet to be built upon. South across Hale Road residential designated land is subdivided and houses are being built.

22 The intended purposes of the designated areas in the ODP are set out in the report entitled "Wattle Grove Cell 9 - Outline development plan and implementation strategy for Shire of Kalamunda January 1996" (ODP report).

23 A child care centre policy (policy) was adopted by the respondent in December 2003. Clause 1 of the policy states:

"Sites for new child care centres are preferred to be located in close proximity to community facilities, local centre, schools and public transport networks."

24 The Commission has issued Planning Bulletin No 72 which sets out a draft policy for child care centres (Bulletin No 72).

25 It was common ground between the parties that Cell 9 will eventually have sufficient population to accommodate three child care centres, in locations loosely described as the north, the middle and the south of the cell. The respondent has granted planning consent for a child care centre in St John Road, in the north, on land designated residential in the ODP in the vicinity of a proposed primary school. It was said there have been no proposals for a centre in the south. The proposed child care centre can be described as being in the middle of Cell 9.

26 Mr David Tomlinson, Town Planner with the Shire of Kalamunda, appeared as a witness for the respondent. Mr Tomlinson said that the proposed child care centre is a substantial, commercial use of a non-residential nature. It was his submission that the aim of the ODP is to locate all commercial, non-residential uses in the retail or mixed use areas. In his opinion, building the child care centre outside the retail and mixed use areas in a residential area beyond the open space buffer, would create strip development, would place a commercial use in the residential area and would have an adverse impact on the amenity of the neighbouring residential uses. This would undermine the intent of the ODP.

27 Planning evidence for the applicant was presented by planning consultant, Mr Anthony Shrapnel. In his submission, the subject land is classified residential in the ODP and because the ODP report provides no useful guidance reference should be made to DPS 2 for development requirements within the residential zone. Under DPS 2, a child care centre is an "AA" use within the residential zone (that is, a use that is not permitted unless discretionary approval is granted by the respondent). Mr Shrapnel argued that residential zones normally accommodate in appropriate locations such uses as educational establishment, home occupation, place of worship, institutional home and child care centre, some of which, including child care centre, are not particularly suited to the commercial zonings. In his submission, the subject land is not particularly suited to residential because it is located on Hale Road in the vicinity of the proposed neighbourhood centre, albeit across the open space area, and so it would be appropriate for the Tribunal to exercise its discretion and approve the proposed development.

28 The respondent says that it is not legally correct to equate the "residential" designation in an ODP with the residential zoning under DPS 2. It is argued that the zoning of the subject land under DPS 2 is urban development and there are no stipulated use classes for that zone in DPS 2. The use of the subject land should therefore be in accordance with the stipulated purpose set out in the ODP and this is residential. Non-residential commercial uses should be concentrated in the neighbourhood centre and mixed use zone.

29 The respondent acknowledged that DPS 2 does provide for departure from or alteration of the ODP, but emphasised that should only occur where it will not prejudice progressive development of the area and was in the interest of orderly and proper planning. It was the submission of the respondent, that the proposed development would undermine the ODP's intended consolidation of commercial, non-residential uses.

30 The child care centre approved in a residential locality in St Johns Road to the north, was said by the respondent to be distinguishable because it is significantly removed from the central neighbourhood centre/mixed use area and there was no concern that strip commercial development would result. The child care centre was said to be of a smaller size and compatible with surrounding residential land uses. In addition, the centre by necessity is within that northern area and therefore is so far removed from the centrally located mixed use/neighbourhood centre area that it would not be appropriate to place it in those localities. This present proposal is seen by the respondent as quite different.

31 The respondent also expressed concern that the proposed development is inconsistent with the policies to be considered. Although its policy does not preclude the location of child care centres in a residential zone, it does refer to the need to protect residential amenity and the preference is for the centres to be in close proximity to community facilities, local centres, schools and public transport. The applicant believes the proposed development is consistent with the respondent's policy because of the proposed hours of operation and location in proximity to the proposed neighbourhood centre and public transport.

32 The respondent's evidence was that it also uses the Commission's Bulletin No 72 as a guide and this cautions that child care centres are becoming larger and have a potentially greater impact on the amenity of residential areas. The applicant's response was that draft Bulletin No 72 has the objective of guiding local governments in the preparation of scheme provisions and local policies on child care centres rather than guiding the exercise of discretion with respect to a development application. In any event, it is argued, Bulletin No 72 acknowledges and supports locating child care facilities in residential areas and the proposed development is consistent with Bulletin No 72 in that it is being located, as suggested, convenient to public transport and within walking distance of surrounding residences and the neighbourhood centre. The respondent referred to the child care centre approved to the north, with 82 children in a residential area, as being of comparable scale and intensity.

33 The Tribunal has formed the view that approval of the northern child care centre and the discretion provided in cl 6.13(h) of DPS 2 support the applicant's position that the objective of the ODP is not, as asserted by the respondent, to have residential designated areas developed simply with residential uses. The Tribunal accepts that non-residential and institutional uses often found in residential areas can be allowed in the residential areas of Cell 9 where planning circumstances are appropriate. In this regard, the uses listed under residential zone in the zoning table of DPS 2 are seen as a reasonable guide.

34 The respondent would prefer the subject land be developed as residential and the proposed use be located in either the neighbourhood centre or the mixed use area of the ODP. These two areas are not, however, available and there is no indication of when they might become available. In any event, the Tribunal is of the view that the test referred to by the applicant is relevant in this instance. That is, where there is discretion to approve the use, the test is not whether the proposed development would be better located within the nearby neighbourhood centre or mixed use area, but:

"... whether in the interests of all orderly and proper planning, and the amenity of the area, and having regard to all applicable planning instruments, a development should be approved. Thus, unless it can be said that a proposed development is contrary to any of those considerations, it should be approved notwithstanding that some may think that a better development of the site might be possible." SPB (Australia) Pty Ltd and Ors v the Town of Claremont [2003] WATPAT 138 at [90].

35 The concerns raised about the proposed non-residential use resulting in strip development extending along Hale Road, brings to mind strip development used as a pejorative term to characterise commercial and retail premises with coloured signs and displays arranged to attract passing trade. The proposed use will be single storey, modest in appearance, landscaped and with residential style fencing. It is concluded that this extension of non-residential use of this character and in this location is not such a departure from the intent of the ODP and will not have such an adverse impact on Hale Road as to provide of itself a reason for refusing this application.

36 Before a decision can be made on whether a use such as this is to be allowed to proceed, however, it is necessary to first examine the impact it will have on the amenity of the immediate locality.

37 The applicant quite properly refers to the test for impact on the amenity is as articulated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at [304]:

"The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the matter in which the proposed use will affect the existing amenity and the degree of impact on the locality."

38 The existing neighbouring uses are mostly vacant residential lots to the west and the potential residential lots of the approved subdivision to the north. To the east is to be open space and to the south across Hale Road, a district distributor road, residences are being built. The areas of concern identified by the parties are the adjacent residential and future residential lots.

39 In the applicant's submission, the proposed development will not adversely impact on the existing or future amenity of the ODP area because of:

"[The] design of the proposed development which incorporates external play areas for older children fronting either Lenihan Corner or Hale Road and located away from neighbouring residences; the locating of internal play rooms for older children located away from the neighbouring residential lots; car parking bays located adjacent to residential being dedicated for staff car parking; a built form sympathetic to likely neighbouring dwellings in terms of scale, pitched and gabled roofs, boundary fencing and landscaping."

40 The applicant has said the operating hours will be 8 am to 6 pm Monday to Friday, which can only be described as normal day-time hours of operation. It was common ground between the parties that there was no issue with traffic movement or parking associated with the proposed development. It is agreed the single storey building will not give rise to impact from bulk or overlooking.

41 As regards noise, the applicant had an expert, Mr Nick Della Gatta, prepare noise report and the respondent had noise expert, Mr Terry George, review the work of Mr Della Gatta. The experts together agreed that noise levels would comply with the daytime assigned noise levels of the Environmental Protection (Noise) Regulations 1997 (WA) at the lots south east (south) across Hale Road.

42 Both experts concluded there would be exceedance of noise levels at the lots to be created to the north west (north) adjacent to the car park as part of the subdivision approval.

43 To address this Mr Della Gatta made recommendations which can be summarised as:

"The boundary fence be 1.8 metres high of solid construction with no gaps.

The sand pit, fort and swing sets be placed at least 28 metres from a residential boundary.

The number of children in any one play area be not more than 20 at any one time.

Restrictions be placed on the houses on the five lots with common northern boundary: service and wet areas to face the child care centre; bedroom areas to face away from the child care centre; windows to be laminated glass 6.38 mm thick; and the residences to be single storey."

44 Mr George assumed play is not going to stop in the areas from which the sand pits are shifted. His recommendation was that the solid boundary wall on the northern boundary be 2.5 metres high. This was in addition to the restrictions on the construction of the houses listed by Mr Della Gatta. Mr George also said the boundary wall would have to be 4 metres high if the houses were two storey.

45 Mr Tomlinson made a submission that it would not be a desirable planning outcome to restrict development of these five lots to single storey because on the relatively small areas, this might require designs to be comprised, particularly in relation to setbacks and provision of open space. Mr Shrapnel provided copies of house designs originally provided to the Commission to illustrate that compliant single storey houses could be built.

46 There was a considerable exchange between Counsel for the two parties as to how restrictions could be placed on the proposed lots to the north. The discussion included various forms of covenants, notices, agreements, endorsements and undertakings potentially involving the landowners, the respondent and the proponents of the child care centre.

47 Relevant to the discussion was that there was as yet no deposited plan for the approved subdivision and no certificates of title had been issued. It was said the child care centre was a joint venture and one of the joint venturers was a director of the company that owned the subject land. Counsel for the applicant referred to the willingness of the applicant to enter into any agreement considered necessary by the respondent, the common ownership elements between the subject land and the proposed residential lots, the desire to be good neighbours, and the single storey character of the locality.

48 Counsel for the respondent expressed doubt about the legality of any covenants or agreements put in place and the capacity for enforcement in circumstances where there was uncertainty over the timing of completion of the subdivision process, the future ownership of both the subject land and the individual residential lots, and when development might take place on any of the lots.

49 The Tribunal notes the lots to the north have not yet been created and the subject land has not been developed, so this colours the measure of the existing amenity. Clearly, were the subdivision to proceed and the child care centre built, there would be an impact on the amenity of the residential lots, particularly by noise. The noise experts have made estimates of what that impact would be and have set out measures that would have to be taken to ensure that the impact on the amenity of any new houses is acceptable.

50 The Tribunal accepts that development can be allowed if, with enforceable conditions, the future amenity of neighbouring lots is not compromised. From the evidence, the Tribunal has concluded that the capacity to ensure the appropriate measure of amenity in the new residential lots is too uncertain. Required are conditions of approval for the child care centre that will bind unknown future owners of separate yet to be created residential lots to the building of houses with quite specific and constricting design features. The Tribunal has not been satisfied that, even if this were a reasonable approach to the planning of the locality, conditions can be put in place that would survive changes of ownership or disparity in timing of lot creation and development.

51 Mr George also reported that, in his opinion, a 2.5 metre high wall and the same building controls to be imposed on houses to the north should be applicable to the houses to the west. There is no common ground between the experts with Mr George saying that he considered the 0 - 2-year-olds and 2-year-old to 3-year-olds group are noisier than Mr Della Gatta has modelled and that the noise of Hale Road is a separate consideration. In this regard, from the more comprehensive evidence he has submitted, Mr Della Gatta's evidence is preferred. The boundary wall should be 1.8 metres and the sand pit for the older group set back 26 metres from the common boundary.

52 As directed by the Tribunal, the respondent submitted a schedule of draft conditions, without prejudice to its position, for consideration should the Tribunal be moved to support the proposed development. The applicant had no difficulties with 11 of the 12 conditions listed. Condition 9 is objected to, which reads:

"The applicant is to enter into a legal agreement with the Shire of Kalamunda to ensure that the road widening on Hale Road is transferred to the Crown as road reserve, without any compensation to the owner. The legal agreement is to be prepared and executed prior to the issue of a building licence."

53 The applicant believes that this condition should not be imposed, either in a modified form, or at all. The applicant considers that the development itself does not give rise to a need for the road widening.

54 The Tribunal considers that the proposed road widening is not generated by this proposal. Condition 4 of the Commission's subdivision approval requires the widening of Hale Road by the ceding up to 3 metres along the frontage of the land to the Crown free of cost. The improvements made to the land, including fencing, can be so arranged such that when the conditions of subdivision approval are cleared there is no impediment to the land in question being ceded. Were the proposed development to proceed, the Tribunal considers an alternative condition can be inserted to this effect.

55 The Tribunal does not agree with the respondent's submission that, under the ODP, areas designated residential can only be developed for purely residential use. The Tribunal is of the view that, in the absence of quite specific guidelines to the contrary, it would be consistent with orderly and proper planning to have normal residential neighbourhoods developed in the urban development zone and this entails consideration of non-residential uses in appropriate locations if such uses are compatible with their surroundings.

56 In this instance, the Tribunal is of the view that the subject land is a site where a non-residential use can be contemplated and, if the use is of the appropriate character, it need not result in the adverse consequences of what is normally considered in the planning sense as strip development.

57 Central to this matter has been the potential impact of the proposed development on the amenity of the future residential development of adjoining lots. Noise experts have made submissions and there is common ground that there will be an adverse impact on the future lots to the north unless the houses built are required to have quite specific design features. The Tribunal is required to weigh the evidence of experts, not have them make the determination. In this matter, the Tribunal has determined that the proposed development cannot be supported. This is because, in the light of the submissions of the experts, it is found that particular conditions are required to ensure an acceptable level of amenity for the proposed residential lots abutting the subject land to the north and it is too uncertain that conditions can be put in place that would survive changes of ownership or disparity in timing of lot creation and development.

58 The application for review be dismissed.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER