Late Reports Agenda of Council Briefing

Council Briefing Agenda 30 January 2018

5 Development Services

5.9 LATE REPORT: No. 137 (Lot: 141; D/P: 1197) West Parade, Mount Lawley - Proposed Two Multiple Dwellings and Change of Use of Existing Single House to Grouped Dwelling

TRIM Ref: D17/171484

Authors: Remajee Narroo, Senior Urban Planner

Paola Di Perna, Manager Approval Services

Authoriser: John Corbellini, Director Development Services

Ward: South

Precinct: 15 – Banks

Attachments: 1. Attachment 1 - Consultation and Location Map ⇩

2. Attachment 2 - Development Plans and Applicant's Report ⇩

3. Attachment 3 - Summary of Submissions ⇩

4. Attachment 4 - Applicant's Response to Submissions ⇩

5. Attachment 5 - Design Advisory Committee Comments ⇩

6. Attachment 6 - Determination Advice Notes ⇩

Recommendation:

That Council, in accordance with the provisions of the City of Vincent Town Planning Scheme No. 1 and the Metropolitan Region Scheme, APPROVES the development application for Two Multiple Dwellings and Change of Use of Existing Single House to Grouped Dwelling at No. 137 (Lot: 141; D/P: 1197) West Parade, Mount Lawley in accordance with the plans included as Attachment 2, subject to the following conditions, with the associated determination advice notes in Attachment 6:

1. Boundary Wall

The owners of the subject land shall finish and maintain the surface of the boundary (parapet) wall facing No. 139 West Parade in a good and clean condition prior to occupation or use of the development. The finish of the walls are to be fully rendered or face brickwork to the satisfaction of the City;

2. External Fixtures

All external fixtures and building plant, including air conditioning units, piping, ducting and water tanks, shall be located so as to minimise any visual and noise impact on surrounding landowners, and screened from view from the street, and surrounding properties to the satisfaction of the City;

3. Car Parking and Access

3.1. A minimum of two resident bays and one visitor bay for the multiple dwellings and a minimum of one car bay for the grouped dwelling shall be provided onsite;

3.2. Vehicle and pedestrian access points are required to match into existing footpath and right of way levels;

3.3. The car parking and access areas shall be sealed, drained, paved and line marked in accordance with the approved plans and are to comply with the requirements of AS2890.1 prior to the occupation or use of the development;

3.4. The visitor parking bay is to be sign posted, to the satisfaction of the City, prior to the occupation or use of the development;

4. Landscape and Reticulation Plan

4.1. A detailed landscape and reticulation plan for the development site and adjoining road verge is to be lodged with and approved by the City prior to commencement of the development. The plan shall be drawn to a scale of 1:100 and show the following:

4.1.1. The location and type of existing and proposed trees and plants;

4.1.2. Areas to be irrigated or reticulated; and

4.1.3. The provision of 13.6 percent of the site area as deep soil zones, 20 percent canopy cover at maturity for the proposed Multiple Dwelling lot and two mature trees with canopy coverage of 11 square metres on the proposed Grouped Dwelling lot as shown on the approved plans; and

4.2. All works shown in the approved detailed landscape and reticulation plans as identified in Condition 4.1 above shall be undertaken to the City’s satisfaction, prior to occupation or use of the development and shall be maintained thereafter to the satisfaction of the City at the expense of the owners/occupiers;

5. Schedule of External Finishes

Prior to commencement of development a detailed schedule of external finishes (including materials and colour schemes and details) shall be submitted to and approved by the City. The development shall be finished in accordance with the approved schedule prior to the use or occupation of the development;

6. Construction Management Plan

A Construction Management Plan that details how the construction of the development will be managed to minimise the impact on the surrounding area shall be lodged with and approved by the City prior to the commencement of the development. The Construction Management Plan shall be prepared in accordance with the requirements of the City’s Policy No. 7.5.23 –Construction and shall accord with the Public Transport Authority’s Procedure: Working In and Around the PTA Rail Reserve. The management of the site shall thereafter comply with the approved Construction Management Plan;

7. Stormwater

All stormwater produced on the subject land shall be retained on site, by suitable means to the full satisfaction of the City;

8. Verge Trees

No verge trees shall be removed without the prior written approval of the City. The verge trees shall be retained and protected from any damage including unauthorised pruning to the satisfaction of the City;

9. Clothes Drying Facility

All external clothes drying areas shall be adequately screened in accordance with State Planning Policy 3.1: Residential Design Codes prior to the use or occupation of the development and thereafter to the satisfaction of the City;

10. Front Fence

The proposed front fence within the West Parade street setback area shall comply with the deemed-to-comply standards of the City’s Policy No. 7.1.1 – Built Form;

11. Drainage Infrastructure

11.1. Prior to the commencement of development, full engineering details are required to be submitted to demonstrate how the City’s and Water Corporation’s drainage infrastructure will be protected to the satisfaction of the City; and

11.2. Prior to the Occupation of the Development an easement in gross in favour of the City of Vincent for the purpose of protecting the City’s drainage infrastructure shall be provided on the title of No.137 (Lot 141) West Parade, Mount Lawley. The applicant/landowner shall pay all costs associated with preparing all documentation and lodgement of the easement on the title;

12. Screening Assessment

A screening assessment undertaken in accordance with Appendix A of The Implementation Guidelines for State Planning Policy 5.4 Road and Rail Transport Noise and Freight Considerations in Land Use Planning shall be lodged with and approved by the City prior to the commencement of the development. All mitigation measures identified in the approved screening assessment shall be implemented to the satisfaction of the City prior to the use or occupation of the development;

13. Right of Way Widening

13.1. A 1.2 metre right of way setback to any buildings and structures is to be maintained at all times to enable future right of way widening; and

13.2. The 1.2 metre right of way setback area referred to in condition 13.1 above, is to be ceded free of cost to the City on subdivision of the land, including Built Strata subdivision; and

14. General

Conditions that have a time limitation for compliance, and the condition is not met in the required time frame, the obligation to comply with the requirements of the condition continues whilst the approved development exists.

Purpose of Report:

To consider an application for development approval for two Multiple Dwellings and change of use from Single House to Grouped Dwelling at No. 137 West Parade Mount Lawley.

Background:

Landowner:	China Plate Development Pty Ltd
Applicant:	Aaron Sice
Date of Application:	30 August 2017
Zoning:	MRS: Urban TPS1: Zone: Residential R Code: R60 TPS2: Zone: Residential R Code: R60
Built Form Area:	Residential
Existing Land Use:	Single House
Proposed Use Class:	Multiple Dwelling – “P” Use Grouped Dwelling – “P” Use
Lot Area:	491m²
Right of Way (ROW):	Located on the western side of the site with a width of 3.6 metres. The ROW is sealed and privately owned by the City in freehold.
Heritage List:	Not applicable

The subject site is located1 on the western side of West Parade, Mount Lawley, between Chertsey Street and Guildford Road as shown in Attachment 1. The site is zoned Residential with a density of and is currently occupied by a single house which has vehicular access from West Parade. The adjoining land to the north and west of the subject lot is zoned Commercial and is occupied by commercial land uses. The land to the south, which fronts West Parade and Lord Street, is zoned Residential with a density of R60 and is predominantly characterised by a mix single, grouped and multiple dwellings predominately between single and two storeys. At No.131 West Parade there is an existing multiple development that is three storeys in height.

The application proposes to construct two multiple dwellings, situated at the rear of the site behind the existing single house, to a maximum of three storeys in height. Given the site is currently one lot and there is more than one dwelling on the lot, the existing single house fronting West Parade, the application also triggers a change in classification of this existing dwelling from ‘Single House’ to ‘Grouped Dwelling’. The applicant has indicated their intention to strata subdivide the existing lot as follows:

· Rear Lot: To include the two proposed multiple dwellings with a site area of 231 square metres;

· Existing Dwelling Lot: To include the grouped dwelling fronting West Parade with a site area of 260 square metres.

The visitor car bay and car parking for the residents for the two proposed Multiple Dwellings are proposed to be accessed from Right of Way. Vehicular access to the Grouped Dwelling will remain unchanged from West Parade. The plans which form the basis of this report are included as Attachment 2.

Details:

Summary Assessment

The table below summarises the planning assessment of the proposal against the provisions of the City of Vincent Town Planning Scheme No. 1 (TPS1), the City’s Policy No. 7.1.1 – Built Form and the State Government’s Residential Design Codes. In each instance where the proposal requires the discretion of Council, the relevant planning element is discussed in the Detailed Assessment section following from this table.

Planning Element	Use Permissibility/ Deemed-to-Comply	Requires the Discretion of Council
Density/Plot Ratio		ü
Street Setback	ü
Front Fence	ü
Building Setbacks/Boundary Wall		ü
Building Height/Storeys	ü
Roof Form	ü
Open Space	ü
Outdoor Living Areas	ü
Landscaping	ü
Privacy	ü
Parking & Access	ü
Bicycle Facilities	ü
Solar Access	ü
Site Works/Retaining Walls	ü
Essential Facilities	ü
External Fixtures	ü
Surveillance	ü
Setback from Right of Way	ü
Environmentally Sustainable Design	ü

Detailed Assessment

The deemed-to-comply assessment of the elements that require the discretion of Council are as follows:

Plot Ratio

Deemed-to-Comply Standard

Proposal

R-Codes - Clause 6.1.1

Plot ratio of 0.7 which equates to 161.7m² of gross building floorspace

Plot ratio of 0.74 or 170.94m² of gross building floorspace

Lot Boundary Setbacks

Deemed-to-Comply Standard

Proposal

Built Form Policy – Clause 5.3

R-Codes – Clause 6.1.4

Northern Boundary

Second Floor setback a minimum of 5.4m

Northern Boundary

Second Floor setback a minimum of 3m

Southern Boundary

Second Floor setback a minimum of 5.4m

Southern Boundary

Second Floor setback minimum of 3.069m increasing to 4.1m

Boundary Wall (Northern Boundary)

Maximum Height of 3.5m

Average Height of 3m

Maximum Height of 9.1m

Average Height 9.1m

The above elements of the proposal do not meet the specified deemed-to-comply standards and are discussed in the comments section below.

Consultation/Advertising:

Community consultation was undertaken for a period of 21 days in accordance with the Planning and Development (Local Planning Scheme) Regulations 2015 and the City’s Policy No. 4.1.5 – Community Consultation, from 7 November 2017 to 27 November 2017. The method of community consultation included advertising the proposal on the City’s website and 57 letters being mailed to all owners and occupiers within a radius of 100 metres to the subject site, as shown on Attachment 1. A total of four submissions were received, one objection and three letters of no-objection. The objection received was not from the immediately abutting lots. The comments raised in the objection can be summarised as follows:

· The proposal does not meet requirements for plot ratio and open space as required by the R-Codes;

· The variations to the setbacks and boundary wall will not minimise the perceive bulk of the dwelling;

· The height of the building is to be restricted to two storeys;

· The proposal does not meet the landscaping requirement;

· The windows on the southern elevation are to be screened to prevent any overlooking of adjoining properties; and

· The proposal should comply with the requirements of the R-Codes.

A detailed summary of the objection received during the consultation period and Administration’s response to each matter raised is included in Attachment 3. The applicant’s response to the objection is included in Attachment 4.

Following adverting the applicant modified the plans to address the submissions received as well as the comments of the City’s Design Advisory Committee (DAC) and the City’s officers. The changes are identified as follows:

· The stairs to the first floor were modified to become common to more than one dwelling and therefore excluded from the calculation of the plot ratio. The amended plans reduce the plot ratio from 0.816 as advertised to 0.74;

· A store to the Grouped Dwelling was provided and the development now complies with the deemed-to-comply of the R-Codes in this regard; and

· Landscaping was proposed within the front setback which accords with the deemed-to-comply standards of the R-Codes.

Design Advisory Committee (DAC):

Referred to DAC: Yes

Plans for the development were first presented to DAC on the 5 July 2017. At that time the DAC requested that the amended plans be referred back to the DAC when received. Amended plans were referred by email to DAC Chair for comment. The DAC Chair advised that the amended plans were supported. An extract of the Minutes of the meeting and the DAC Chair’s response are provided in Attachment 5.

Legal/Policy:

· Planning and Development Act 2005;

· Planning and Development (Local Planning Schemes) Regulations 2015;

· City of Vincent Town Planning Scheme No. 1;

· State Planning Policy 3.1 – Residential Design Codes;

· Policy No. 4.1.5 – Community Consultation; and

· Policy No. 7.1.1 – Built Form Policy.

In accordance with Schedule 2 Clause76(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 and Part 14 of the Planning and Development Act 2005, the applicant has the right to apply to the State Administrative Tribunal for a review of Council’s determination.

It is noted that the landscaping provisions of the City’s Built Form Policy require approval of the Western Australian Planning Commission (WAPC) and as a result the assessment will only have ‘due regard’ to these provisions.

Draft Local Planning Scheme No. 2 (Draft LPS 2)

On 8 December 2017, the Acting Minister for Planning announced that the City’s draft Local Planning Scheme No. 2 (LPS2) is to be modified before final approval will be granted. The Schedule of modifications was confirmed in writing by officers at the Department of Planning, Land and Heritage (the Department). The Department also advised that the modifications to LPS2 would be required before the Acting Minister would finally grant approval to the Scheme. In this regard the LPS2 should be given due regard as part of the determination of this application. Proposed LPS2 and the modifications required do not impact on the subject property.

Delegation to Determine Applications:

This matter is being referred to Council as the proposal is for development classified ‘Category 1’ as the development is three storeys in height.

Risk Management Implications:

It is Administration’s view that there are minimal risks to Council and the City’s business function when Council exercises its discretionary power to determine a planning application.

Strategic Implications:

The City’s Strategic Plan 2013-2023 states:

“Natural and Built Environment

1.1 Improve and maintain the natural and built environment and infrastructure”.

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

Nil.

Comments:

Plot Ratio

The application proposes a plot ratio of 0.74 (170.94 square metres of gross building floorspace) which is great that the deemed‑to‑comply plot ratio of 0.7 (161.7 square metres gross building floorspace) set by the R-Codes for this R60 site.

The submission received raised concern with the proposed plot ratio and that the proposed plot ratio and height had added bulk and scale to the development. The subject lot is within a three storey building height area with the adjoining land zoned Commercial. The plot ratio proposed is less than 10 square metres greater than the deemed-to-comply standard set by the R-Codes for this site and is not considered to add obvious bulk to the development. The development has been designed to comply with the height requirements and the building elevation is well articulated with contrasting materials and colours. These factors, combined with the proposed landscaping, will soften the bulk and scale of the development to adjoining properties, the ROW and the streetscape.

The surrounding area is intended to be rezoned under LPS2 with the land on the western side of the ROW proposed to be up coded to R100 providing for development up to six storeys. It is considered that the proposed design and density of the development is consistent with the changing character of the area.

Lot Boundary Setback

Northern Boundary

The second floor is setback three metres from the northern boundary in lieu of the 5.4.metres deemed-to-comply standard set in the R-Codes. The adjoining property at No.139 West Parade is zoned Commercial and has an existing boundary wall at a height of 6.17m for the length of the boundary adjoining the proposed units. The section of wall proposing the reduced setback does not contain any major openings and due to the orientation of the lot will not result in any overshadowing to the north. Given the existing commercial development on the adjoining property it is considered that the setback variation will not impact on the adjoining property.

Table 4 of the R-Codes sets out a maximum height of 3.5 metres and an average height of 3 metres for boundary walls. The development proposes a boundary wall to the northern property boundary up to 9.1 metres in height. As outlined above the adjoining property to the north at No. 137 West Parade is zoned Commercial and contains a large commercial development which occupies almost 75% of the lot area and presents a boundary wall at a height of 6.1 metres to the northern boundary of the subject site. The existing boundary wall on this site is longer that the proposed boundary wall and as a result the 9.1 metre high boundary wall proposed will not be visible from the adjoining property, West Parade or the ROW and is considered appropriate in this instance.

Southern boundary

In accordance with the Lot Boundary Setbacks of the R-Codes the second floor is setback between 3.069 metres to 4.1 metres from the southern boundary in lieu of the deemed-to-comply standard of 5.4.metres set in the R-Codes. Whilst the proposal does not comply with the lot boundary setbacks, the dwelling is setback to comply with the Visual Privacy standards of the R-Codes and will not result in any overlooking. In addition the wall is well articulated with staggered sections of wall, a variety of materials and finished and the inclusion of openings to reduce the bulk of the development. The proposal complies with the overshadowing requirements and will not impact on the outdoor living areas of the adjoining property. Given the above, the proposed setback to the southern boundary is considered to meet the relevant design principles of the R-Codes.

Landscaping

The City’s Built Form Policy sets out a deemed-to-comply standard of 15 percent deep soil zone and 30 percent canopy cover at maturity. These provisions have yet to be adopted by the WAPC, however, are given due regard in the assessment of the application. The assessment of the landscaping requirements is based on the whole site area (491 square metres), with the application proposing 13.25 percent of the site as deep soil zone and 20 percent canopy coverage. Additional landscaped areas in the submitted landscaping plan are identified as deep soil zone, however, these do not meet the one metre minimum dimension requirements in accordance with the Built Form Policy.

Consistent with the objectives of the City’s Built Form Policy the application proposes the retention of the existing dwelling. The redevelopment of the land to the rear of the existing dwelling and the need for visitor car parking and a store for the existing dwelling results in a limited area for additional canopy coverage to be provided on site. The development proposes to retain the existing mature tree at the front of the site and has designed the pedestrian access and letterbox in order to protect this important contributor to canopy coverage. The application also proposes a creeper over the pergola in the new ground floor outdoor living area, which will further contribute to the landscaping of the site. Given the retention of the existing tree fronting West Parade and the proposed arbour above the pergola, it is considered that the development responds to the intent of the City’s policy and provides an appropriate landscaping outcome.

Drainage Infrastructure

The subject lot is traversed by the Water Corporation’s Mount Lawley main drain, a 1600 diameter brick drainage structure running east to west across the north east corner of the lot. The City’s 375 RC drainage pipe also runs along the same alignment. The construction of the multiple dwelling above this drainage infrastructure will require engineering solutions for the protection of both drainage systems in accordance with the Water Corporation’s requirements. It is recommended that a condition be imposed on any approval requiring the development to be undertaken in accordance with the Water Corporation and City’s requirements with the landowner required to enter into an easement for protection of this infrastructure prior to occupation of the new development to ensure its ongoing protection. The applicant is aware of this requirement and has not raised any concerns.

Conclusion

The proposal requires the Council to exercise its discretion in relation to plot ratio and building setbacks. Both of these elements of the proposal are considered to meet the relevant design principles set out in the R-Codes and local housing objectives set out in the Built Form Policy. The proposal is recommended for approval subject to conditions.

Council Briefing Agenda 30 January 2018

5.10 LATE REPORT: No. 7/565-567 (Lot: 7; STR: 21608) Beaufort Street Mount Lawley - Proposed Amendment to Conditions of Approval - Change of Use from Office to Recreational Facility and Office

TRIM Ref: D17/173157

Authors: Remajee Narroo, Senior Urban Planner

Paola Di Perna, Manager Approval Services

Authoriser: John Corbellini, Director Development Services

Ward: South

Precinct: 11 – Mount Lawley Centre

Attachments: 1. Attachment 1 - Consultation and Location Map ⇩

2. Attachment 2 - Previous Planning Approval and Plans ⇩

3. Attachment 3 - Applicant's Letter ⇩

4. Attachment 4 - Summary of Submissions ⇩

5. Attachment 5 - Applicant's Response to Submissions ⇩

Recommendation:

That Council, in accordance with the provisions of the City of Vincent Town Planning Scheme No. 1 and the Metropolitan Region Scheme, APPROVES the application to amend planning approval 5.2014.4.1 for Proposed Change of Use from Office to Recreational Facility and Office at No. 7/565-567 (Lot: 7; STR: 21608) Beaufort Street, Mount Lawley, granted on 7 October 2014, subject to the following condition:

1. All conditions and advice notes detailed on planning approval 5.2014.4.1 granted on 7 October 2014 and included in Attachment 2 continue to apply to this approval, except as follows:

1.1. Condition 4.1 is amended to read as follows:

“The use of the Recreational Facility is allowed to operate twenty four (24) hours, seven days a week;”; and

1.2. Condition 4.2 is deleted.

Purpose of Report:

To consider an application to amend conditions of the current planning approval for a change of use from Office to Recreational Facility and Office at No. 7/565-567 Beaufort Street, Mount Lawley granted by Council at its meeting of 5 November 2013.

Background:

Landowner:	Silverleaf Investments Pty Ltd & RGO Enterprises Pty Ltd
Applicant:	Veris
Date of Application:	19 May 2017
Zoning:	MRS: Urban TPS1: Zone: Commercial TPS2: Zone: Commercial
Built Form Area:	Activity Corridor
Existing Land Use:	Recreational Facility – “AA”
Proposed Use Class:	Recreational Facility – “AA””
Lot Area:	961m²
Right of Way (ROW):	3.6 metres in width, sealed, privately owned
Heritage List:	No

The subject site is located at No. 7/565-567 Beaufort Street, Mount Lawley, on the corner Vincent Street, as shown in Attachment 1. The site is occupied by a two storey commercial development, which includes shops, office, eating house and recreational facility (gym). The existing recreational facility is located on the first floor of the building. There is existing residential development on the western side of the site and on the northern side along Vincent Street there is a drive through commercial development (Hungry Jacks). On the eastern side along Beaufort Street and on the southern side, the area comprises of commercial developments.

On 5 November 2013 Council approved an application for a change of use from office to recreational facility (health studio-gym) with two ancillary medical consulting rooms (physiotherapy) and office in the subject tenancy. Condition 5 of that approval stated the following:

“5. This approval for Recreational Facility with Ancillary Two (2) Medical Consulting Rooms (Physiotherapy) is for a period of thirty six (36) months only and should the applicant wish to continue the use after that period, it shall be necessary to re-apply to and obtain approval from the City prior to the continuation of the use;”.

On 12 March 2014 a development approval was issued under Delegated Authority for a change of use to recreational facility and office at the above premises. Condition 4 of the approval stated the following:

“4. This approval for Recreational Facility is for a period of thirty six (36) months only and should the applicant wish to continue the use after that period, it shall necessary to re-apply to and obtain approval from the City prior to the continuation of the use;”.

The applicant lodged an appeal to the State Administrative Tribunal (SAT) against the approval being restricted to thirty six (36) months only.

On 7 October 2014, at the invitation of SAT, under Section 31 of the State Administrative Tribunal Act 2004, the Council reconsidered the condition and approved a new condition as follows:

“4. Operating Time

4.1 The proposed use of the Recreational Facility is allowed to operate twenty four 24 hours, seven (7) days a week for a period of thirty-six (36) months

4.2 After thirty-six (36) months subject to the facility only being permitted to operate from 9pm to 6am from the date of the issue of the approval revert to 6am - 9pm.”

The above planning approval, including the approved plans, is included as Attachment 2 which was issued on 4 November 2014.

A 24 hour gym has operated from the subject site, under the definition of Recreational Facility, for the past year and a half. The most recent decision by the Council granted a 36 month approval for the operation of the Recreational Facility 24 hours per day seven days per week after which time the operating hours of the Recreational Facility were restricted to between 6:00am and 9:00pm. This current application seeks a permanent approval for the 24 hour operations of the Recreational Facility by amending condition 4.1 and deleting condition 4.2 of the most recent approval, which limited the approval period for the 24 hour operating hours to 36 months.

The 36 month period expired on 4 November 2017 and therefore the Recreational Facility is not currently permitted to operate 24 hours per day.

The applicant has provided the following statement for the request to reconsider conditions 4.1 and 4.2 of the existing planning approval:

“Our understanding for the inclusion of this condition, on the original planning approval, was to allow a ‘test period’ whereby the operation of a 24 gym could be assessed against its impact on amenity in the local area. The Landowner has advised there were no significant negative impacts needing rectification over this period.

As such, we request as part of this reconsideration, that part 4.2 of condition 4 be removed from the use over the subject site and that the business be permitted to continue a twenty-four (24) hour, seven (7) day operation. The business owners indicate that the business is operating profitably with these operating times and to alter this would jeopardise the businesses viability.”

The applicant’s full justification for the proposal is included as Attachment 3.

The recreational facility has operated from the subject site 24 hours, seven days a week for the past year and a half. During this time the City has received 15 complaints with regard to noise from the owners/operators of businesses on the ground floor. All of these complaints related to noise being emitted during the day within the currently and ongoing approved operating hours of the Recreation Facility, which are 6:00am to 9:00pm. The City has investigated each of these complaints and has not established any breaches of the State Government’s Environmental Protection (Noise) Regulations 1997.

It should be noted that prior to the Recreational Facility commencing operation, and in accordance with condition 8.2 of the most recent approval, an acoustic report was submitted to and approved by the City to address the potential for noise issues to be created by the development. All of the measures required by the approved acoustic report were implemented by the applicant to the satisfaction of the City. The applicant also undertook additional attenuation measures following the initial noise complaints, which have further reduced the impact of noise on the tenancy below.

Details:

The application seeks to amend the previous development approval issued by Council by removing the conditions that restrict the approval of the 24 hour gym to 36 months. The current conditions require that the operating hours of the gym convert to 6:00am to 9:00pm following the expiry of the condition on 4 November 2017. The proposal has been assessed against the City’s Town Planning Scheme No. 1 (TPS1), draft Local Planning Scheme No. 2 (LPS2). The land use Recreational Facility is an “AA” in the ‘Commercial’ zone under TPS1 and Council is required to exercise discretion when considering whether to approve such a land use in the ‘Commercial’ zone. This element of the proposal requires the discretion of Council and is discussed in the comments section below.

The proposal has also been assessed against the City’s policy framework and is considered to comply with all of the City’s local planning policies.

Consultation/Advertising:

Following receipt of this application to amend the development approval, consultation on the proposal was undertaken for a period of 14 days in accordance with the Planning and Development (Local Planning Scheme) Regulations 2015, from 27 July 2017 until 9 August 2017. The method of advertising included 116 letters mailed to all owners and occupiers, as shown on Attachment 1, in accordance with the City’s Policy No. 4.1.5 – Community Consultation. It is noted that letters were sent to the same addresses when the recreational facility was initially advertised in July 2013.

A total of six submissions were received in relation to the proposal comprising of five objections, and one support. The concerns raised in the submissions were as follows:

· Use is inappropriate;

· Noise impact on the existing tenancies within the building and adjoining properties;

· Car parking; and

· Anti-social behaviour.

The main issues raised in the submissions are discussed in the Comment section below. A summary of the submissions received and Administration’s response to each is contained in Attachment 4. The applicant has provided a response to the submissions in Attachment 5.

Design Advisory Committee (DAC):

Referred to DAC: No

Legal/Policy:

· Planning and Development Act 2005;

· Planning and Development (Local Planning Schemes) Regulations 2015;

· City of Vincent Town Planning Scheme No. 1; and

· Policy No. 4.1.5 – Community Consultation.

The application to amend a development approval can be considered in accordance with Clause 77 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015. Clause 77(4) provides that an application to amend a development approval can be approved with or without conditions or refused.

The applicant will have the right to have Council’s decision reviewed by the State Administrative Tribunal (SAT) in accordance with Part 14 of the Planning and Development Act 2005.

Town Planning Scheme No. 1

The general objectives of the Town Planning Scheme No. 1 (TPS1) as outlined in Clause 6 are applicable, specifically subclauses 3(b) and 3(c) which are outlined as follows:

“…3(b) to protect and enhance the health, safety and general welfare of the Town’s inhabitants and the social, physical and cultural environment;

3(c) to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which –

(i) recognises the individual character and needs of localities within the Scheme zone area; and

(ii) can respond readily to change. …”.

Draft Local Planning Scheme No 2

On 8 December 2017, the Acting Minister for Planning announced that the City’s draft Local Planning Scheme No 2 (LPS2) is to be modified before final approval was to be granted. The Schedule of modifications was confirmed in writing by officers at the Department of Planning, Land and Heritage (the Department). The Department also advised that the modifications to the LPS2 would be required before the Acting Minister would finally grant approval to the Scheme. In this regard the LPS2 should be given due regard as part of the determination of this application.

Draft LPS 2 sets out objectives for the Commercial zones, which are outlined as follows:

“(i) to facilitate a wide range of compatible commercial uses that support sustainable economic development within the City; and

(ii) to ensure development design incorporates sustainability principles, with particular regard to waste management and recycling and including but not limited to solar passive design, energy efficiency and water conservation.”

Delegation to Determine Applications:

This matter is being referred to Council as the development approval that is proposed to be amended was determined by Council.

Risk Management Implications:

It is Administration’s view that there are minimal risks to Council and the City’s business function when Council exercises its discretionary power to determine a planning application.

Strategic Implications:

The City’s Strategic Plan 2013-2023 states:

“Natural and Built Environment

1.1 Improve and maintain the natural and built environment and infrastructure”.

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

Nil.

Comments:

Land Use

The subject site is located within the Commercial zone of the Mount Lawley – Highgate Town Centre. The proposed use is considered to be appropriate and consistent with both existing land uses within the Town Centre and the objectives of the City’s TPS1. The recreational facility also contributes to the activation of the Beaufort Street commercial precinct and is considered to align with the objectives of the ‘Commercial’ zone under draft LPS2.

Noise

The condition limiting the 24 operations of the Recreational Facility to 36 months was originally imposed by the City to verify the suitability of the 24 hour operations of the use for the subject property. The recreational facility has operated from the subject site 24 hours a day, seven days a week for the past year and a half. During this time the City has received 15 complaints with regard to noise from four businesses located on the ground floor below the gym. These 15 complaints include 11 complaints in 2016 and 4 complaints in 2017. This proposal seeks permanent approval for 24 hour operation of the Recreational Facility and was advertised for public comment to surrounding owners, residents and business and attracted six submissions including five objections. The main concerns related to the impact of noise from the gym on the commercial tenancies on the ground floor of the premise.

As part of the original approval the applicant submitted an Acoustic Report on 25 July 2016. The Acoustic Report was based on the readings taken from two businesses located on the ground floor. The report stated that the recreational facility complied with the prescribed (noise) standards contained in the Environmental Protection (Noise) Regulations 1997, for all periods of the day or night. The City assessed the Acoustic Report in accordance with condition 8.2 of the most recent approval.

Following complaints about noise from the recreational facility, the City’s Health Services undertook noise readings in August/September 2016 and again in September 2017. The City carried out a detailed assessment of those noise readings, which were all found to be compliant with the Environmental Protection (Noise) Regulations 1997.

Following community consultation on this application, the applicant submitted a new Acoustic Report to the City, which addressed the noise readings taken by the City. The report states that the recreational facility does comply with the prescribed (noise) standards contained in the Environmental Protection (Noise) Regulations 1997, for all periods of the day or night. The Acoustic Consultant verbally advised the City that since the noise readings were taken there was one activity involving dropping metal on metal that had created noise concerns not considered or assessed by the City. The operators of the recreational facility have addressed this activity by implementing additional attenuation measures with respect to the use of this equipment since September 2017. The attenuation measures involved substituting a metal plate with a thick rubber mat on the floor.

As set out above, the assessments demonstrate that all of the readings taken by the businesses below the recreational facility are within the limits permitted for such use. It is also noted that the City did not receive any noise complaints between 9:00pm to 6:00am. Most of the complaints related to instances of noise made during day with two complaints relating to concerns during the evening up to 7:50pm. Moreover most of the existing uses on the ground floor are closed by the evening, with the latest use closing at 10:00pm. As a result there is not likely to be any noise impacts caused by the gym operating overnight between 9:00pm and 6:00am, as is proposed by this application.

Given the ‘Commercial’ zoning of the area, the fact that there are no residential developments in immediate proximity of the development and that the noise being emitted from the tenancy is, at the closest nearby tenancy, within the limits prescribed by the State Government’s Environmental Protection (Noise) Regulations 1997, it is considered that there is no basis to refuse the application to extend the operating hours of the Recreational Facility from 6:00am to 9:00pm to 24 hours per day.

Parking

Concern was raised through the submissions regarding there not being enough parking for the 24 hour gym and the impact the development is having on parking in the area. The existing recreational facility complies with the car parking requirements of the City’s Parking and Access Policy and the Barlee Street public car park, located 40 metres from the subject site, also provides sufficient parking for patrons attending the recreational facility after hours.

Anti-social Behaviour

Concern regarding the potential for a 24 hour recreational facility to create anti-social behaviour, especially within the laneway at the rear of the subject property, was also raised through the submissions. The City has not received any complaints of anti-social behaviour linked to the Recreational Facility and there is no evidence to suggest that the 24 nature of the Recreational Facility will lead to anti-social behaviour. The operator has advised that they educate their patrons regarding safe egress from the premises and it is considered that the 24 operation will actually reduce the likelihood of anti-social behaviour in the laneway to the rear and the area generally, given it will increase surveillance and activity in the area after hours.

Conclusion

The use is considered to be compatible with the Commercial zoning of the site and contributes to activate Beaufort Street. With regard to noise, the two Acoustic Reports submitted demonstrate that the recreational facility does comply with the prescribed (noise) standards contained in the Environmental Protection (Noise) Regulations 1997, for all periods of the day or night. The recreational facility complies with the parking requirements and is considered that the 24 hour operation will actually reduce the likelihood of anti-social behaviour in the area. In view of the above, it is recommended that the use of the Recreational Facility be permitted to continue operating 24 hours a day, seven days a week.

Council Briefing Agenda 30 January 2018

8 Community Engagement

8.1 Proposed Licence Agreement - Banks Reserve Pavilion

TRIM Ref: D18/10282

Author: Andrew Scully, Senior Community Projects Officer

Authoriser: Michael Quirk, Director Community Engagement

Attachments: 1. Kiddies Learning Hub Pty Ltd Business Plan - Confidential

2. Certificate of Registration of a Company - Kiddies Learning Hub Pty Ltd ⇩

Recommendation:

1. That Council APPROVES a licence to Kiddies Learning Hub Pty Ltd to use of Banks Reserve Pavilion, located at Lot 500 (No.60) Joel Terrace, Mt Lawley, on the following key terms:

1.1 Term: 5 March 2018 to 14 December 2018 (41 weeks);

1.2 Hours of Use: Monday 7am to 3pm; and

Tuesday to Friday 7:30am to 4:30pm;

1.3 Permitted Use: Early learning and child care service;

1.4 Fees: $45,100 annual paid monthly in advance (inclusive of GST);

1.5 Adherence to:

1.5.1 Council Policy No. 2.1.7 – Parks, Reserves and Hall Facilities – Conditions of Hire and Use; and

1.5.2 Provider/service approval from the Department of Communities.

1.6 Storeroom Use: Exclusive use of the storeroom (office) adjacent to the kitchen within the pavilion for storage, throughout the term of the licence;

2. Subject to final satisfactory negotiations being carried out by the Chief Executive Officer, AUTHORISES the Mayor and Director Corporate Services to affix the common seal and execute the licence conditions above.

Purpose of Report:

To consider Kiddies Learning Hub Pty Ltd’s request to operate an early learning and child care service at Banks Reserve Pavilion, 60 Joel Terrace, Mt Lawley.

Background:

Smart Start Educational Services Pty Ltd has operated a Montessori based early learning program for children aged 2½ years to 5 years at Banks Reserve Pavilion, Mount Lawley since July 2015. During this time they attracted approximately 45 children to the Pavilion five days per week, and as such were the main user group at the facility. In late 2017, the City was advised that they would be relocating to different premises (outside of the City of Vincent) from 2018 so would no longer be utilising the Pavilion.

Administration has since been presented with a Business Plan from two former Smart Start Educational Services Pty Ltd employees who have established a new business, Kiddies Learning Pty Ltd, and who wish to continue to provide the same service for the local community from the Pavilion. Through this Business Plan and subsequent negotiations with Administration they have requested a hire fee similar to that charged to Smart Start Educational Services Pty Ltd to ensure their ongoing financial viability.

Upon reviewing the previous arrangements with Smart Start Educational Services Pty Ltd it is evident that despite being a private business they were charged a rate comparable with community organisations given their financial capacity and in recognition of their regular use of the Pavilion. There does not appear to be any specific Council resolution or documented rationale for this decision making albeit these arrangements did generate substantial revenue and activated an otherwise underutilised facility.

The following fees were paid over the last three calendar years:

Year	Period	Total Hire Fees Paid
2015	July - December	$23,331.25
2016	January - December	$49,595.00
2017	January - December	$42,619.50

Council established a new charging methodology for halls and community centres through the Adopted Fees and Charges Schedule 2017/18. This includes differing rates for community and commercial usage as well as scaled rates based on a facility hierarchy (i.e. higher rates for Main Halls and lower rates for Pavilions). Given that the hire fee request from Kiddies Learning Hub Pty Ltd is not consistent with these fees and charges it is necessary to either propose an amendment to the Adopted Fees and Charges Schedule or to establish a licence agreement for use of the Pavilion.

Given that the Business Case presented by Kiddies Learning Hub Pty Ltd is specific to their services and proposed facility utilisation it is not considered appropriate to amend the Adopted Fees and Charges Schedule. The establishment of a licence agreement will enable specific terms to be negotiated and subsequently allow continuation of early learning and child care services at the Pavilion.

Details:

Kiddies Learning Hub Pty Ltd are a new business although the Directors, one of whom resides within Vincent, have been working for Montessori based education providers for many years. A detailed Business Plan (Attachment 1) and Certificate of Business Registration (Attachment 2) have been submitted to Administration.

The business proposes to deliver a child care services for children aged between approximately 2½ and 5 years with the aim of getting them prepared for kindergarten/pre-primary. The services will follow the Early Years learning Framework and Montessori curriculum. It is anticipated that the business will attract up to 55 places per week with approximately 30 places already confirmed at a cost of $90.00 per day per child. The Education and Care Regulatory Unit within the Department of Communities has granted Kiddies Learning Hub Pty Ltd conditional approval to base their service at the Pavilion.

The proposed use of the Pavilion by Kiddies Learning Hub Pty Ltd remains consistent with the activities undertaken by Smart Start Educational Services Pty Ltd over recent years and will activate the facility during a non-peak period where there is limited demand from other community groups, businesses or individuals. Upon reviewing their Business Plan and the previous arrangements for Smart Start Educational Services Pty Ltd it is recommended that a licence agreement be established based upon a hire charge of $25.00 per hour. This charge is consistent with the current community rate of $25.00 per hour although it is lower than the current commercial rate of $40.00 per hour. Such an agreement enables the continuation of facility hire revenue comparable to that paid by Smart Start Educational Services Pty Ltd while also allowing some flexibility for this new business venture based upon how many places within their program are filled.

Kiddies Learning Hub Pty Ltd proposes to utilise the Pavilion each Monday between 7.00am and 3.00pm, and Tuesday to Friday between 7.30am to 4.30pm, from 5 March to 14 December 2018. Based upon the total number of hours and weeks requested this will equate to $45,100 during the licence agreement period which represents a $2,480.50 increase when compared to the amount paid by Smart Start Educational Services Pty Ltd in 2017. Aside from this specific licence term, hours of use and fees the Kiddies Learning Hub Pty Ltd will simply be required to adhere to the terms included within Council Policy No. 2.1.7 – Parks, Reserves and Hall Facilities – Conditions of Hire and Use. They will also be required to maintain provider/service approval from the Department of Communities.

Given that the availability of an early learning program and child care service at this location will benefit the local community as well as activating an underutilised building the request from Kiddies Learning Hub Pty Ltd to operate from the Pavilion is supported by Administration. However, given the current progression of Banks Reserve Master Plan (including the Banks Reserve Pavilion) it is not considered prudent to provide a licence agreement beyond the 2018 calendar year. This has been clearly communicated to Kiddies Learning Hub Pty Ltd.

Consultation/Advertising:

Administration met with the directors of Kiddies Learning Hub Pty Ltd in October 2017 and November 2017 on site to discuss the proposal. Further discussions and negations on terms of use have been ongoing to present by both telephone and email.

Kiddies Learning Hub Pty Ltd is a registered company (ACN 622 006 624) and estimates to make a profit from the operation of the child care serve at the Pavilion pursuant to a licence with the City. As the licence is for a term of 41 weeks, the proposed disposition falls within the scope of an exempt disposition in accordance with regulation 30(2)(e) of the Local Government (Functions and General) Regulation 1996. Therefore there would be no requirement for the City to advertise an intention to enter into the licence with Kiddies Learning Hub Pty Ltd.

Legal/Policy:

A licence provides the licensee with a contractual right to use property at the times and on the terms specified in the licence. It is different to a lease as it does not create any estate or interest in the property (it is not a proprietary right). However, given the formalities of a licence and the extensive right to use the property it can provide, it appears that a licence would fall within the scope of ‘dispose’ as defined in the Local Government Act 1995.

Local Government Act 1995 section 3.58(a) defines dispose as “…to sell, lease, or otherwise dispose of, whether absolutely or not”

Local Government Act 1995 section 3.58 - Disposing of Property, provides that a local government can only dispose of property in accordance with section 3.58(3) unless the disposition falls within the scope of section 3.58(5), which includes:

“(d) Any other disposition that is excluded by regulations from the application of this section.”

In accordance with Section 3.58(5), Regulation 30 of the Local Government (Functions and General) Regulations 1996 provides a range of dispositions that are exempt from the application of Section 3.58 of the Act, including the following disposition:

“(2)(b): A disposition to a body, whether incorporated or not the objects of which are of a charitable, benevolent, religious, cultural, educational, recreational, sporting or other like nature; and the members of which are not entitled or permitted to receive any pecuniary profit from the body’s transactions;

(2)(e): the leasing of land for a period of less than two years during all or any of which time the lease does not give the lessee the exclusive right to use the land.”

Risk Management Implications:

Low: The directors of Kiddies Learning Hub have extensive experience as employees within the Montessori early learning system. Kiddies Learning Hub Pty Ltd have already secured 30 placements per week with a desired patronage of 55 placements. Should the placement numbers not be achieved there is no financial or strategic loss to the City.

Strategic Implications:

This agreement remains consistent with key objectives within the City’s Strategic Community Plan 2013-2023, as follows:

“2.1.3 Develop business strategies that reduce reliance on rates revenue

(c) Continue to review leases and commercial contracts to ensure the best return for the City, whilst being cognisant of its community service obligations.

3.1.6 Build capacity within the community for individuals and groups to meet their needs and the needs of the broader community:

(a) Build the capacity of individuals and groups within the community to initiate and manage programs and activities that benefit the broader community, such as the establishment of men’s sheds, community gardens, toy libraries and the like.”

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

Council’s Adopted Schedule of Fees and Charges 2017/18 includes the following rates:

Community Facilities – Category Four

(Banks Reserve Pavilion)

Community Rate

Commercial Rate

Off Peak (7am to 6pm)

$20.00 per hour

$40.00 per hour

Peak (6pm to 12am)

$25.00 per hour

$50.00 per hour

Based upon the proposed term, hours of use and fees it is expected that approximately $45,100 revenue will be generated through a licence agreement between the City of Vincent and Kiddies Learning Hub Pty Ltd. Given the previous assumption that Smart Start Educational Services Pty Ltd would continue their use of the Pavilion an amount of $43,000 revenue was included within Council’s 2017/18 operating budget.

Comments:

Administration recommends that a licence agreement be granted to Kiddies Learning Hub Pty Ltd for Banks Reserve Pavilion to enable the delivery of early learning and child care services on specified days and times at a rate of $25.00 per hour. This agreement will enable continuation of a service to the community from this location, maintain regular utilisation of a City asset during off peak periods, and maintain budgeted community buildings revenue.