AGENDA

Late Reports

 

Council Briefing

 

26 March 2019

 

Time:

6pm

Location:

Administration and Civic Centre

244 Vincent Street, Leederville

 

 

 

David MacLennan

Chief Executive Officer

 


Council Briefing Agenda                                                                                        26 March 2019

Order Of Business

 

5          Development Services. 4

5.7             LATE REPORT: No. 131 (Lot: 131; S/P: 62106) Harold Street, Highgate - Proposed Change of Use from Educational Establishment to Medical Centre. 4

5.9             LATE REPORT: No. 58 (Lot: 301 & 302; D/P: 34680) Kalgoorlie Street, Mount Hawthorn - Single House. 89

7          Corporate Services. 205

7.4             LATE REPORT: Amendments to the Trading in Public Places Local Law 2008 and Local Government Property Local Law 2008. 205

10        Motions of Which Previous Notice Has Been Given. 352

10.1           LATE REPORT: Notice of Motion - Cr Topelberg - Tender or Quotations for Bulk Verge Collection  352

 

 

 


Council Briefing Agenda                                                                                        26 March 2019

5             Development Services

5.7          LATE REPORT: No. 131 (Lot: 131; S/P: 62106) Harold Street, Highgate - Proposed Change of Use from Educational Establishment to Medical Centre

TRIM Ref:                  D19/9725

Author:                     Fiona Atkins, Urban Planner

Authoriser:                Joslin Colli, A/Manager Development & Design

Ward:                        South

Attachments:             1.       Attachment 1 - Consultation and Location Plans

2.       Attachment 2 - Development Plans

3.       Attachment 3 - Summary of Submissions - Applicant's Response and Parking Management Justifications

4.       Attachment 4 - Summary of Submissions - Officer's Comments

5.       Attachment 5 - Heritage Report provided by Applicant

6.       Attachment 6 - Car Parking Survey provided by Applicant

7.       Attachment 7 - Determination Advice Notes  

 

 

RECOMMENDATION:

That the Council in accordance with the provisions of the City of Vincent’s Local Planning Scheme No. 2 and the Metropolitan Region Scheme, APPROVES the application for a change of use from Educational Establishment to Medical Centre at No. 131 (Lot: 131; S/P: 62106) Harold Street, Highgate, in accordance with plans provided in Attachment 2, subject to the following conditions, with the associated determination advice notes in Attachment 7:

1.       Use of Premises

1.1     The area shown as ‘Medical Centre’ on the ground floor of the approved plans dated 20 August 2018 shall be used in accordance with the definition of ‘Medical Centre’ as defined by the City’s Local Planning Scheme No. 2;

1.2     The maximum number of consulting rooms operating at any time within the ‘Medical Centre’ shall be six, with a maximum of six associated treatment rooms; and

1.3     The proposed Medical Centre shall be limited to the following hours of operation:

·       8:00am – 5:00pm Monday to Friday;

·       8:00am – 10:30am Saturdays; and

·       Closed Sundays and Public Holidays;

2.       Educational Establishment

2.1     The first floor shall continue to be used as ‘Educational Establishment’ in accordance with the definition of ‘Educational Establishment’ as defined by the City’s Local Planning Scheme No. 2; and

2.2     The maximum number of people permitted in the ‘Educational Establishment’ at any time is 12 people;

3.       Car Parking and Access

A minimum of 24 onsite parking bays shall be available for use at the premises at any time;

4.       Cash-in-Lieu of Parking Contributions

4.1     A cash-in-lieu contribution shall be paid to the City for the shortfall of one (1) car parking bay, based on the cost of $5,400 per bay as set out in the City’s 2018/19 Schedule of Fees and Charges, being a contribution of $5,400 prior to the commencement of development or by entering into a written agreement with the City to pay the cash-in-lieu over an agreed period up to five years; and

4.2     Prior to the Occupation of the development the owner(s) or the applicant on behalf of the owner(s) shall comply with the following requirements:

4.2.1  pay a cash-in-lieu contribution of $5,400; OR

4.2.2  lodge an appropriate assurance bond/ bank guarantee of a value of $5,400 to the satisfaction of the City. This assurance bond/bank guarantee would only be released in the following circumstances:

4.2.2.1. to the owner(s)/applicant where the subject ‘Approval to Commence Development’ did not commence and subsequently expired; and

5.       Signage

Any new signage that does not comply with the City’s Policy No. 7.5.2 – Signs and Advertising shall be subject to a separate Planning Application and all signage shall be subject to a Building Permit application, being submitted and approved prior to the erection of the signage.

 

Purpose of Report:

To consider an application for development approval for a change of use from an Educational Establishment to a Medical Centre and incidental shop at No. 131 Harold Street, Highgate (subject site).

PROPOSAL:

The application proposes the use of both floors of the heritage building on site, for the use as a Medical Centre, including consulting rooms, radiology rooms and a pharmacy. The applicant proposes that the Medical Centre be developed over two stages and, at maximum capacity, accommodate approximately 28 staff members. The floor plan indicates that the ground floor and second floor accommodates approximately 102 customers in consulting rooms and waiting areas. A total capacity of 130 people is proposed.

 

The change of use is proposed to occur over two stages. Stage one would involve the ground floor being used as a Medical Centre and incidental Shop (pharmacy). During stage one, the upper floor would continue to be used as office space for the existing Educational Establishment, as it switches to an online learning format. It is expected that 10 educational staff would remain on site during this period, with a maximum of two students attending site sporadically to meet one on one with a staff member.

 

Stage two would involve the Educational Establishment on the upper floor being replaced with a Medical Centre. The Medical Centre and Shop (pharmacy) on the ground floor would continue to operate.

 

The application proposes some minor external works, being the addition of a lift to the rear of the property, and the realignment of the existing fence at the front of the property to make room for 21 embayed parking spaces along Stirling Street.

 

The proposed hours of operation for the Medical Centre, Shop (pharmacy) and Educational Establishment are 8:00am to 5:00pm Monday to Friday and 8:00am to 10:30am Saturdays.

Background:

Landowner:

Kingston Commercial Group Pty Ltd

Applicant:

Erwin Biemel & Associates

Date of Application:

20 August 2018

Zoning:

MRS:    Urban

LPS2:    Zone: Residential         R Code: R80

Built Form Area:

Residential

Existing Land Use:

Educational Establishment ‘D’

Proposed Use Class:

Medical Centre ‘A’

Lot Area:

8798m²

Right of Way (ROW):

No

Heritage List:

Management Category A

 

The subject site is located at the corner of Harold Street and Stirling Street, approximately 70 metres east of Beaufort Street, as detailed in Attachment 1. In 2011 approval was granted for the partial demolition of, and alterations and additions to, an existing heritage building, construction of a six storey mixed use development comprising 83 multiple dwellings, 47 single bed multiple dwellings, 1 office and associated basement parking.

 

The subject site contains three modern apartment buildings, and one heritage building which is located closest to the corner of Harold and Stirling Streets. The heritage building (the subject tenancy) is listed as a Management Category A property on the City’s Municipal Register. The property is the former Christian Brother’s College, and is considered to be of some historical value to the City. The three modern apartment buildings surrounding the heritage building on the subject site are not part of this application.

 

In 2013 approval was granted for alterations and additions to the site and change of use from Office to Educational Establishment in the subject building. The Kingston International College continues to operate at the site. The subject site has 24 bays for the exclusive use of the commercial portion of the site provided in underground parking, and shares 26 visitor bays with the 130 residential units also on the subject site.

Details:

Summary Assessment

The table below summarises the planning assessment of the proposal against the provisions of the City of Vincent Local Planning Scheme No. 2 (LPS2), the City’s Policy No. 7.1.1 – Built Form and Policy No. 7.7.1 - Non Residential Development Parking Requirements. 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

Land Use

 

ü

Car Parking

 

ü

Bicycle Facilities

 

ü

Detailed Assessment

The deemed-to-comply assessment of the element that requires the discretion of Council is as follows:

 

Land Use

Deemed-to-Comply Standard

Proposal

Local Planning Scheme No. 2

 

“P” Use

 

 

Medical Centre “A” use

Car Parking

Deemed-to-Comply Standard

Proposal

Stage 1 – Medical Centre GF; Educational Establishment UF

Required

 

7 x Consulting Rooms

(4 bays per consulting room)

 

28 bays

 

 

 

24 bays

Educational Establishment (upper floor existing)

 

Maximum two students on site

Maximum 10 staff on site

 

 

 

 

0.5 bays, rounded to 1 bay

Total for stage 1

29 bays required

24 bays

Stage 2 – Medical Centre GF and UF

Required

 

12 x Consulting Rooms

(4 bays per consulting room)

48 bays

24 bays

Total for stage 2 (upper floor and ground floor as Medical Centre)

48 bays

24 staff bays, resulting in a 24 bay shortfall.

Bicycle Facilities

Deemed-to-Comply Standard

Proposal

Stage 1 – Medical Centre GF; Educational Establishment UF

Required

 

7 x Consulting Rooms

Short term bays – 4.9 bays

Long term bays – 2.1 bays

13 bays

 

Educational Establishment

Short term bays – 1 

Total

7 bays

13 bays

Stage 2 – Medical Centre GF and UF

Required

 

12 x Consulting Rooms

Short term bays – 8.4 bays

Long term bays – 3.6 bays

13 bays

Total

12 bays total, including upper floor and ground floor requirements.

13 bays

 

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 in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015, for a period of 21 days from 23 November 2018 to 10 December 2018. The method of consultation being a sign on site, an advertisement in the local newspaper, and 313 letters mailed to all owners and occupiers surrounding the site (as shown in Attachment 1), in accordance with the City’s Policy No. 4.1.5 – Community Consultation.

 

A total of 16 submission were received being one support, one expressing concerns and 14 objections. The submissions received during the community consultation are summarised as follows:

 

·       Lack of parking available at the site, and its potential impact on the surrounding locality;

·       The visitors to the Medical Centre dominating the visitor parking that is intended to be shared with the residential properties;

·       Street parking already an issue at the site, and may lead to further traffic congestion in the area;

·       The use is not appropriate in a residential area;

·       The use would increase the number of visitors to the site every day, increasing traffic and pedestrian foot traffic in the area, and impacting the area in terms of noise and security;

·       Security concerns with regards to a pharmacy being located in a residential area;

·       The use may attract individuals with drug and alcohol addictions to the area.

 

The applicant provided a response to these submissions in a report, included as Attachment 3. The officer’s response to comments are included as Attachment 4.

Design Review Panel (DRP):

 

Referred to DRP:            No

Legal/Policy:

·       Planning and Development Act 2005;

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

·       City of Vincent Local Planning Scheme No. 2;

·       Policy No. 4.1.5 – Community Consultation; and

·       Policy No. 7.7.1 – Non-Residential Parking Requirements.

Delegation to Determine Applications:

The application is required to be determined by Council as the development proposes a use which is not listed in Table 1 of the City’s Policy No. 7.7.1 – Non Residential Parking Requirements.

Risk Management Implications:

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:

 

Innovative and Accountable

 

We are open and accountable to an engaged community

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

Nil.

Comments:

Land Use

 

The application proposes a change of use from an existing Educational Establishment to a Medical Centre and an incidental Shop (pharmacy).  A Medical Centre is an ‘A’ use within the City’s Residential Zone as per LPS2, meaning that the use is not permitted unless the local government exercises its discretion by granting approval after community consultation has been undertaken. The Shop (pharmacy) is considered to be an incidental use to the predominant use of the Medical Centre.

 

The application proposes the change in use of the site to be completed over two stages. The applicant has not provided a definitive timeline for the implementation of these stages, but the proposal for the staged approach is:

 

Stage 1

Stage 1 includes the establishment of the medical centre and shop (pharmacy) on the ground floor and the existing educational establishment to remain on the upper floor. It is noted that the educational establishment is moving to an online learning model, which involves approximately 10 staff remaining on site for the duration of Stage 1, with a maximum of two students on site at any time, attending one on one meetings with the staff. All other learning associated with the educational establishment is to be undertaken off site. Stage 1 consists of:

 

Ground Floor – Medical Centre

7 Consulting Rooms

 

8 Treatment rooms

 

Shop (pharmacy, intended as ancillary to the use)

Upper Floor – Educational Establishment

 

7 Class Rooms (to remain fitted out as classrooms, but not be utilised for classroom activities)

 

4 Offices

 

1 Administration Area

 

1 Reception Area

 

Stage 2

In Stage 2 the Educational Establishment is no longer proposed to be on site, with the Medical Centre and associated uses occupying the tenancy throughout the ground and upper floor. Stage 2 results in the additional development of the medical centre, including:

 

Ground Floor and Upper Floor – Medical Centre

 

An additional 3 Consulting Rooms on the upper floor, equating to a total of 10 Consulting Rooms.

 

An additional 5 Treatment Rooms on the upper floor, equating to a total of 13 Treatment Rooms.

 

The Shop (pharmacy, intended as ancillary to the use) established on the ground floor Stage 1 is to remain.

 

The use of a medical centre on the subject site is considered to be compatible with the surrounding residential and commercial areas. The proposed use is in keeping with the objectives of the Residential Zone of LPS2 as it provides a non-residential use which is compatible with, and complementary to, residential development. The shop (pharmacy) on site is intended to be used by customers of the medical centre and residents from the surrounding area, and providing further amenity to the area.

 

Although the proposal for a Medical Centre at the subject site is considered an acceptable use, the proposed scale and intensity of the use of the site when Stage 2 has completed is not considered to be acceptable, given its potential impact upon the surrounding residential area. The full scale proposal would have a negative impact on the amenity of the surrounding area, and is inconsistent with the objectives of the Residential zone under LPS2 as follows:

 

·       The application proposes a medical centre across two levels comprising 12 consulting rooms and 13 treatments rooms. The subject site and land to the east and south is zoned Residential R80 and characterised by grouped and multiple dwellings, the land to the north located on Harold street is zoned Residential R50 and is characterised by single storey single dwellings. The zoning of this area is reflective of the City’s intent for these areas to provide medium to high density residential uses within a highly accessible location (adjacent to Beaufort Street). The scale of the development is not compatible or complementary to the surrounding residential development.

·       The land adjoining the rear western boundary is zoned Commercial, it is acknowledged that the amenity of the residents of the subject lot and the immediately adjoining Residential zoned properties would be impacted by land uses within the commercial zone and the result of impacts including traffic, parking, deliveries and noise. Residents adjoining a commercial site could expect a diminished level of amenity. The intensity of the proposed medical centre post Stage 2 could result in unreasonable amenity impacts as a result of the scale of the development.

·       Post Stage 2, the proposed use is more intensive than the existing Educational Establishment where classes are scheduled for longer periods of time throughout the day.

 

The use of the ground floor as a Medical Centre and the upper floor remaining a base for the currently operating Educational Establishment, or Stage 1 of the proposal, is considered a more acceptable use of the site. The scale and intensity of Stage 1 is of a more appropriate scale for the subject site, located at the interface between the Residential and Commercial zones. The intensity of Stage 1 is considered to have a more manageable impact on the amenity of the surrounding residential area as such it is recommended that the approval be limited to stage 1 only with approval for the ground floor as Medical Centre only and the upper floor to be retained as Educational Establishment at a smaller scale then the current approval permits.

 

 

 

 

 

Car and Bicycle Parking

 

Car parking requirements for a Medical Centre are determined by Policy No. 7.7.1 – Non Residential Parking Requirements. As the Shop (pharmacy) is considered an incidental use there are no parking requirements for this use.

 

At the completion of Stage Two, a shortfall of 24 bays is proposed. The applicant was required to submit a Parking Management Plan which is included as Attachment 3.

 

The following is relevant in determining the acceptability of the Parking Management Plan:

 

·       The applicant has confirmed that medical appointments are to run for 15 minutes, skin cancer and specialist appointments to run for 30 minutes and radiology appointments to run for 30 to 60 minutes. This would result in a greater turnover of visitors to the site, and a greater number of vehicles visiting the site every hour.

·       The applicant submitted a parking survey, which includes observations about the parking in the shared visitor parking bays on a two hourly basis for a week. This parking survey is included as Attachment 6, and seeks to provide recommendations to the City about how parking on site may be better managed, so that the proposed use would not have an undue impact on the adjoining sites.

·       To address the car parking variation, the applicant has proposed the development of 21 embayed parking spaces within the verge at Stirling Street, adjoining the subject site. These 21 bays would replace the existing 13 street parking bays. Administration has determined that these proposed parking spaces are acceptable in terms of safety and design. The proposed parking bays would be installed at the full cost of the applicant, with the City to provide appropriate ticketing machines and determine the appropriate length of stay for the proposed parking spaces.

·       Although the proposed embayed parking would not be provided on site, the applicant has proposed that this parking is an option to alleviate the 24 bay parking variation identified for the proposed change of use. The provision of 21 bays adjacent to the subject site in lieu of the existing 13 bays, would result in an additional eight parking bays being provided for the locality. The embayed parking would not be for the sole use of the Medical Centre, as it would be public parking managed by the City, and available for use by all visitors to the locality. The parking adjoining the site may not be available for customers to the site and they may be forced to park elsewhere along adjoining streets. This would in turn result in negative traffic impacts for the residents of Harold and Stirling streets and residents and customers compete for on-street car parking.

·       The proposed Medical Centre would attract a higher number of visitors to the site in comparison to the existing Educational Establishment, with medical appointments generally being shorter and more frequent than a class schedule. The increase of visitors to the site would be exacerbated when stage two has been completed and 12 consulting rooms and 13 treatment rooms would be operating, with multiple appointments likely to be booked for each room every hour. The increased visits to the site would result in a higher number of vehicle movements and greater demand for parking in the surrounding area.

 

Administration is not satisfied that the location of a Medical Centre on this site and the convenience that may be provided for any local residents outweighs the amenity impacts on the immediate neighbours from the increase in traffic movements. The parking shortfall would have an adverse impact on the amenity of the residents on Harold and Stirling Streets and is not supported.

 

At the completion of Stage 1, a parking shortfall of five bays is proposed. This is not considered to be an appropriate parking variation given the Residential nature of the surrounding properties.

 

It is considered that stage 1 of the development being the ground floor Medical Centre and upper floor Educational Establishment if operated at a reduced scale outlined above would be capable of satisfying the car parking requirements available on site.

 

The parking outcomes for a reduced scale development would be:

 

Car Parking

Deemed-to-Comply Standard

Proposal

Stage 1 – Medical Centre GF; Educational Establishment UF

Required

 

6 x Consulting Rooms

(4 bays per consulting room)

 

24 bays

 

 

 

24 bays

Educational Establishment (upper floor existing)

 

Maximum two students on site

Maximum 10 staff on site

 

 

 

 

0.5 bays, rounded to 1 bay

Total for stage 1

25 bays required

24 bays

 

It is recommended that, should Stage 1 of the development be approved, a condition of approval be applied limiting the number of consulting rooms to six. Six consulting rooms results in a one bay shortfall, which is considered a more manageable and acceptable parking variation given the residential nature of the area surrounding the subject site. The applicant has indicated if the full proposal was approved then they would accept a condition to construct 21 embayed parking bays within the Stirling Street road reserve. An approval for the Medical Centre at a reduced scale, where the parking requirements result in a one bay shortfall, is not considered to be a need for the construction of the embayment parking which would come at a substantial cost to the applicant for a significantly reduced development proposal.

 

If Council resolve to approve the application at the reduced scale, a cash-in-lieu contribution for the one bay shortfall equating to $5,400 is conditioned. The collection of these funds would contribute to a review and upgrade of the existing parking infrastructure which may mitigate potential on street parking issues as a result of this development.

 

Heritage

 

The subject site is a Management Category a site on the City’s municipal register. The site is not listed on the State Heritage Register.

 

The City’s Policy No. 7.6.1 – Heritage Management – Development Guidelines for Heritage and Adjacent Properties requires a Heritage Impact Statement to be submitted with Development Applications. The development proposes external works in the form of a lift at the rear of property, and embayed parking on Stirling Street which would require the demolition and rebuilding of the front fence further in on the lot than its current location.

The Heritage Impact Statement and plans for the proposal were referred to the State Heritage Office for comment. The State Heritage Office provided comments on the 28 February 2018, stating that:

 

Best heritage practice would suggest the lift be designed to read as new and not mimic the existing buildings. This could be done in brick, detailed to read as new.

 

As the property is not listed on the State Heritage Register these comments are in an advisory capacity only.

 

If the City were to approve the development of Stage 1 of the application only, the lift and embayed parking would not be considered necessary changes to the development. The approval of Stage 1 only would result in no impact on the external built form of the existing development.

 


Council Briefing Agenda                                                                                                         26 March 2019

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Council Briefing Agenda                                                                                                         26 March 2019

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Council Briefing Agenda                                                                                        26 March 2019

5.9          LATE REPORT: No. 58 (Lot: 301 & 302; D/P: 34680) Kalgoorlie Street, Mount Hawthorn - Single House

TRIM Ref:                  D19/40426

Author:                     Karsen Reynolds, Urban Planner

Authoriser:                John Corbellini, Executive Director Development Services

Ward:                        North

Attachments:             1.       Attachment 1 - Consultation and Location Map

2.       Attachment 2 - Development Plans Deferral

3.       Attachment 3 - Development Plans

4.       Attachment 4 - Applicant Justification and Supporting Information

5.       Attachment 5 - Design Review Panel Comments

6.       Attachment 6 - Applicant Response to First Community Consultation Submissions

7.       Attachment 7 - Applicant Response to Second Community Consultation Submissions

8.       Attachment 8 - Administration's Response to Summary of Submissions

9.       Attachment 9 - Photos of Site and Surrounding Context

10.     Attachment 10 - Streetscape Analysis  

 

 

Recommendation:

That Council, in accordance with the provisions of the City of Vincent Local Planning Scheme No. 2 and the Metropolitan Region Scheme, REFUSES the application for a proposed Single House at No. 58 (Lot: 301 & 302; D/P: 34680) Kalgoorlie Street, Mount Hawthorn, in accordance with the plans provided in Attachment 2, for the following reason:

1.       As a consequence of the large blank walls to the front façade the proposal:

1.1     results in a bulk, scale and dominating appearance that is not compatible with and complementary to the established residential area in which it is located (Clause 67(m) of the deemed provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015) and is inconsistent with an objective of the Residential zone under the Scheme;

1.2     would detract from the amenity and character of the residential neighbourhood (Clause 67(n) of the deemed provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015) and is inconsistent with an objective of the Residential zone under the Scheme; and

1.3     is not an appropriate design for the context of place and is inconsistent with Objective 1.3.1(a) of State Planning Policy 3.1: Residential Design Codes.

 

Purpose of Report:

To consider an application for development approval for a Single House at No. 58 Kalgoorlie Street, Mount Hawthorn (subject site).

PROPOSAL:

The application proposes a two-storey single house at No. 58 Kalgoorlie Street, Mount Hawthorn.


 

Background:

Landowner:

Caitlin Kyron

Applicant:

Konstantine Dean Kyron

Date of Application:

3 October 2018

Zoning:

MRS:    Urban      

LPS2    Zone: Residential         R Code: R30

Built Form Area:

Residential

Existing Land Use:

Single House

Proposed Use Class:

Single House

Lot Area:

Lot 301: 374 square metres

Lot 302: 250 square metres

Total Lot Area: 624 square metres

Right of Way (ROW):

No

Heritage List:

No

 

The subject site is bound by Kalgoorlie Street to the west, and developed residential lots to the north, east and south. The site is currently accommodates a double-storey detached dwelling, which is proposed to be demolished. The surrounding residential developments are single-storey and two-storey single houses. On the opposite side of Kalgoorlie Street are single-storey and two-storey single houses and grouped dwelling developments (refer to the location plan included in Attachment 1). The subject site and adjoining properties are zoned Residential R30 under the City’s Local Planning Scheme No. 2 (LPS2) and have been identified as a Residential Built Form Area as prescribed under the City’s Local Planning Policy No. 7.1.1 – Built Form (Built Form Policy).

 

An application to amalgamate Lot 301 and Lot 302 into a single lot on a Certificate of Title has been lodged with the Western Australian Planning Commission (WAPC). Administration provided a recommendation for approval for the proposed amalgamation. The WAPC granted conditional approval subject to conditions for the proposed amalgamation on 7 February 2018.

 

The development was presented to Council at its Ordinary Council Meeting on 5 March 2019. The application was deferred by Council to enable the applicant time to address Council’s reasons for deferral relating to the front façade, engagement to the streetscape and the overall bulk of the development. The development plans presented to Council on 5 March 2019 that resulted in the deferral are included as Attachment 2.

 

The applicant provided amended development plans that involve the following changes:

 

·       Ground floor and upper floor setback from the dwelling to the eastern boundary increased from 2.77 metres to 4.1 metres;

·       Bedroom 3 and the external stairs have been removed and replaced with an unroofed terrace on the first floor;

·       The rooftop terrace has been reduced in size and the setback from the eastern lot boundary to the roof terrace has increased from 7.5 to 9 metres;

·       The spa has been removed;

·       The master bedroom window facing the primary street has increased in size and now meets the definition of ‘major opening’ within the R Codes;

·       Additional landscaping and planter boxes provided on terraces;

·       Bench seats included within the front setback area; and

·       Additional information regarding the materials proposed to be used in the façade to a texture style render.

 

A copy of the amended development plans have been included as Attachment 3 and applicant justification and supporting information for the proposal is included as Attachment 4.

 

The applicant submitted an application for review to the State Administrative Tribunal (SAT) for a deemed refusal on 7 March 2019. The matter has been listed for a Directions Hearing on 9 April 2019. On 22 March 2019 the applicant provided the City and the SAT with written consent to proceed with the determination of the application at the April 2 Ordinary Meeting of Council. Pursuant to Clause 26(d) of the State Administrative Tribunal Act 2004 the City can proceed with the determination of the application.

Details:

Summary Assessment

The table below summarises the planning assessment of the proposal against the provisions of the City of Vincent Local Planning Scheme No. 2 (LPS2), 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

Street Setback

ü

 

Front Fence

 

ü

Building Setbacks/Boundary Wall

 

ü

Building Height/Storeys

ü

 

Open Space

ü

 

Outdoor Living Areas

ü

 

Landscaping

ü

 

Privacy

ü

 

Sightlines

 

ü

Parking and Access

ü

 

Solar Access

 

ü

Setback of Garages and Carports

ü

 

Site Works/Retaining Walls

ü

 

Essential Facilities

ü

 

External Fixtures

ü

 

Surveillance

ü

 

Outbuildings

ü

 

Detailed Assessment

The deemed-to-comply assessment of the element that requires the discretion of Council is as follows:

 

Building Setbacks/Boundary Wall

Deemed-to-Comply Standard

Proposal

Clause 5.1.3 of the R Codes

 

Northern Boundary

 

Upper floor terrace privacy screens require a 3.1 metre setback from the northern boundary

 

 

 

 

 

Upper floor terrace privacy screens provide a 1.5 metre setback from the northern boundary

Southern Boundary

 

Upper floor rumpus room and spiral stairs requires a 3.3 metre setback from the southern boundary

 

Upper floor passageway requires a 1.8 metre setback from the southern boundary

 

 

Upper floor rumpus room and spiral stairs provides a 2.1 metre setback from the southern boundary

 

Upper floor passageway provides a 1.6 metre setback from the southern boundary

Front Fence

Deemed-to-Comply Standard

Proposal

Clause 5.10 of the Built Form Policy

 

Piers to have a maximum width of 400 millimetres

 

The distance between piers should not be less than the height of the piers

 

 

Piers propose a maximum width of 1.0 metre

 

The distance between piers is less than the height of the piers

 

Sightlines

Deemed-to-Comply Standard

Proposal

Clause 5.2.5 of the R Codes

 

Walls, fences and other structures to be no higher than 0.75 metres within 1.5 metres of whether walls, fences and other structures adjoin a driveway

 

 

North of the proposed driveway:

One pier and fence infill with a height of 1.2 metres is within 1.5 metres of the driveway

South of the proposed driveway:

One pier and fence infill with a height of 1.2 metres is within 1.5 metres of the driveway

Solar Access

Deemed-to-Comply Standard

Proposal

Clause 5.4.2 of the R Codes

 

Shadowing on adjoining properties coded R30 is to be a maximum of 35 percent of the site area

 

 

Shadowing proposed to Lot 303 and Lot 23 to the south of the subject site

 

Shadow projection to Lot 303: 70.8 percent

Shadow projection to Lot 23: 7 percent

 

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

Consultation/Advertising:

Community consultation was undertaken in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015, for a period of 14 days commencing on 9 November 2018 and concluding on 22 November 2018. Community consultation was undertaken by means of written notification being sent to surrounding landowners, as shown in Attachment 1 and a notice on the City’s website.

 

The City received 40 submissions; all objecting to the proposal. A summary of the submissions received and the Applicant’s response is provided in Attachment 6.

 

Following the first consultation period, the applicant sought to respond to the objections through the submission of amended plans, which involved the following modifications:

 

·       Increased upper floor street setback from 4.9 metres to 7.5 metres and additional detail provided to the façade design;

·       Reduction in boundary wall heights;

·       Re-design to the southern walls to provide greater articulation and design detail;

·       Reduction in the building height from 8.52 metres to 7.6 metres;

·       Modifications to the front fence including the reduction of pier widths within vehicle sightline areas;

·       Increased deep soil areas from 9.9 percent to 12.6 percent;

·       Provision of privacy screens to raised terraces; and

·       Increased setback from the rooftop terrace to the northern boundary.

 

Administration advertised the application for a second time to allow the community to provide feedback on the amended plans. The application was advertised for a period of 16 days between 16 January 2019 and 1 February 2019, to adjoining properties. The standard 14 days for neighbour consultation was extended by two business days due to technical problems on the City’s website.

 

Following the second advertising period the City received a total of 75 submissions; 34 in support; and 41 objecting to the proposal. A summary of the submissions received and the Applicant’s response is provided in Attachment 7.

 

A summary of all of the submissions received along with Administration’s comments on each is provided in Attachment 8.

 

The submissions received during the second advertising period are summarised with their relative locations in the table below.

 

Submissions received during the second advertising period

Within 100 metres of subject site

More than 100 metres from subject site

All submissions

SUPPORT

0%

100%

36.6%

OBJECT

58.5%

41.5%

63.4%

OTHER

(not stated/no opinion)

 

N/A

 

N/A

 

N/A

 

The concerns raised in the submissions, which reiterated previous concerns received are as follows:

 

·       Development results in building bulk to the street and adjoining properties;

·       Adverse amenity impacts to adjoining properties;

·       Overlooking provided to adjoining properties;

·       Overshadowing provided to adjoining properties;

·       Lack of deep soil zones and canopy cover;

·       Development is not respectful of the local context;

·       Development is not consistent with and does not contribute to the established built form and character of the streetscape and suburb; and

·       Overdevelopment of the site.

Design Review Panel (DRP):

Referred to DRP:            Yes

 

The development has been referred to DRP on one occasion following receipt of the application by Administration. Attachment 5 contains the development plans presented to the DRP and an extract of the minutes from the meeting.

 

The proposal was presented to the DRP on 6 February 2019, with comments raised by the DRP summarised as follows:

 

·       Passive surveillance is important. Mt Hawthorn has a friendly and engaging community. House appears gated and is turning its back on the street;

·       Glazing of the study is so far from the right that it is not visible. Look at increasing glazing on the ground floor such as to the study or the mudroom;

·       A big window on upper level and flipping the master suite layout would be a good outcome for surveillance and softening the upper floor façade;

·       Suggest putting a side window to the front door or could make front door glass to have better interaction between the street and house;

·       Consider a perforated garage door. This would provide privacy but also create more transparency;

·       No concerns with the contemporary nature. Architectural intent is very bold and strong, however the design does not seem to fit into the area;

·       There is insufficient information provided on surrounding context as shown on floorplans, elevations and perspectives. Show the adjoining buildings to illustrate how the proposal responds to the surrounding context;

·       Look at adding in additional materials to the front façade such as brickwork to relate to the local context.

·       Review and amend building height to comply; and

·       Look at planting choices within the front setback area, such as fruit trees, to provide greater depth and to draw the eye into the site.

 

The applicant submitted amended plans to on the 7 February 2018 in response to DRP comments, which involved the following modifications:

 

·       Increased deep soil zones provided on site;

·       Garage door amended from a solid door to perforated mesh;

·       Front door to the dwelling amended from obscured glass to visually permeable glass;

·       Additional circle window provided to the ground floor study;

·       Building height reduced to meet relevant deemed-to-comply standards;

·       Front fence materiality amended to white brickwork with rendered piers;

·       Upper floor master suite floor plan amended to allow for increased surveillance to the street from the openings on the front facade; and

·       Tree species to the front setback area amended to reflect DRP recommendations.

Comments received from the DRP have been discussed in the Comments section of this report.

Legal/Policy:

·       Planning and Development Act 2005;

·       State Administrative Tribunal Act 2004

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

·       City of Vincent Local Planning Scheme No. 2;

·       State Planning Policy 3.1 – Residential Design Codes;

·       Policy No. 4.1.5 – Community Consultation; and

·       Policy No. 7.1.1 – Built Form Policy.

 

The City is to have due regard to the matters contained under Clause 67 of the Planning and Development (Local Planning Scheme) Regulations 2015 and the objectives of the R Codes and relevant zone when exercising its discretion. An assessment of the matters and objectives relevant to this proposal is provided within the comments section of this report.

 

Matters to be considered

 

The following matters set out in Schedule 2, Clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 are relevant matter Council is to have due regard to as part of determining this application:

 

m)      the compatibility of the development with its setting including 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;

 

n)       the amenity of the locality including the following –

 

(i)       environmental impacts of the development;

(ii)      the character of the locality; and

(iii)     social impacts of the development.

 

The following objective of the Residential zone under City’s LPS2 is a relevant consideration for Council to have due regard to when determining this application:

 

·       To enhance the amenity and character of the residential neighbourhood by encouraging the retention of existing housing stock and ensuring new development is compatible within these established areas.

 

The following objectives of the R Codes matter are relevant matters that Council is to have due regard to when determining this application:

 

·       To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives;

·       To encourage design consideration of the social environmental and economic opportunities possible from new housing and appropriate response to local amenity and place; and

·       To encourage design which considered and respects heritage and local culture.

 

In accordance with Schedule 2, Clause 76(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 and Part 14 of the Planning and Development Act 2005, the applicant would have the right to apply to the State Administrative Tribunal for a review of Council’s determination.

 

The deemed-to-comply rear lot boundary standards set out in the Built Form Policy have not been approved by the Western Australian Planning Commission (WAPC). As a result, the assessment would only have ‘due regard’ to those deemed-to-comply rear setbacks approved by Council in the Built Form Policy.

 

The deemed-to-comply landscaping standards set out in the Built Form Policy have not been approved by the Western Australian Planning Commission (WAPC), which have instead issued approval for a modified set of deemed-to-comply landscaping standards that are similar to those set out in Design WA but which have not been approved by Council. As a result, the assessment would only have ‘due regard’ to those deemed-to-comply landscaping approved by Council in the Built Form Policy.

Delegation to Determine Applications:

This matter is being referred to Council for determination as the proposal has received more than five objections during the City’s community consultation period.

Risk Management Implications:

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:

This is in keeping with the City’s Strategic Community Plan 2018-2028:

 

Innovative and Accountable

We are open and accountable to an engaged community

SUSTAINABILITY IMPLICATIONS:

Nil.

Financial/Budget Implications:

Nil.

Comments:

As detailed within the table above, discretion is required for various elements. The proposed development has been considered against the relevant objectives and design principles below.

 

Lot Boundary Setbacks

 

North

 

The application involves an upper floor setback of 1.5 metres from the terrace (located to the front of the property) to the northern lot boundary. The terrace requires a 3.1 metre setback.

 

In considering the acceptability of the lot boundary setback proposed, the following is noted:

 

·       The City received neighbour concerns in relation to overlooking from the terrace; over development of the site; and building bulk impacts;

·       The upper floor terrace screens are adjacent the adjoining northern adjoining properties open space area. The portion of open space that the screens abut is not the primary outdoor living area of the northern property, to which is located to the rear of their property. The favourable location of the upper floor terrace reduces any adverse amenity impacts to the northern property;

·       While the minimum setback from the terrace privacy screens is 1.5 metres, the structure is curved, and pulls away from the northern boundary to a maximum setback of 5.4 metres. The increasing setback from the screens to the northern boundary is assists in the reduction of building bulk when viewed from the northern adjoining property;

·       The proposal involves a mature tree forward of the privacy screens as well as climbers to grow over the solid walls. Landscaping in this location would soften the appearance of the solid screens when viewed from the adjoining northern property and would assist in the reduction of solid blank walls and subsequent adverse visual impacts;

·       There would be no overshadowing and subsequent loss of sunlight to the northern adjoining property due to the favourable location and orientation of the terrace. Buildings have been setback sufficiently so as to allow ventilation to flow between properties. The reduced setback contributes to a more effective use of building space in an area where there would be no adverse impact on the adjoining property, particularly in relation to access to sunlight or ventilation; and

·       The terrace meets the deemed-to-comply standards for Clause 5.4.1 Visual Privacy of the R Codes. The terrace does not result in any overlooking and resultant loss of privacy to the northern adjoining property.

South

 

The technical assessment of the rooftop terrace to the southern lot boundary has been amended from the previous report for this application. The report presented to the 5 March Council meeting had incorrectly assessed the roof terrace as a major opening. In accordance with the R Codes Clause 5.1.3 Lot Boundary Setbacks, the rooftop terrace should not be assessed as a major opening. Following reassessment of the roof top terrace, the wall meets the deemed-to-comply standards of Clause 5.1.3 Lot boundary setbacks and is deemed acceptable under the R Codes.

 

The applicant has modified the proposal in response to concerns raised during community consultation and now proposes the setbacks provided below.

 

·       The application provides an upper floor setback of 2.1 metres from the rumpus room / spiral stairs from the southern lot boundary in lieu of the 3.3 metre required setback; and

·       The upper floor passageway provides a setback of 1.6 metres from the southern lot boundary in lieu of the 1.8 metre required setback.

 

In considering the acceptability of the southern lot boundary setback proposed, the following is noted:

 

·       The City received submissions that raised concerns with the aesthetic impact and bulky appearance of the building as a result of the reduced setbacks, and adverse impacts relating to amenity, overlooking and overshadowing;

·       The southern elevation provides an articulated façade with a range of openings and minor projections that assists in mitigating building bulk. The building has also incorporated landscaping around the perimeter of the site to further soften the building edge. The southern façade does not provide any large solid blank walls. The design detail proposed break up the appearance of solid blank walls when viewed from the adjoining southern property;

·       The majority of the shadow from the development falls to the southern adjoining properties driveway, northern setback area that contains major openings, rear open space area, and roof space. The affected major openings on the southern adjoining property would remain shadowed if the setback were to comply and the reduced setback does not further reduce sunlight to these openings. The shadow that falls to the open space area to the rear of the southern property does not fall to the primary outdoor living area, to which is situated to south of the adjoining property. The patio located to the southern property is not shadowed from the proposed development. The southern adjoining properties outdoor living area would continue to receive adequate direct sunlight to the building and open space areas; and

·       The upper floor facing south provides minor openings only. The subject walls meet the deemed-to-comply standards for Clause 5.4.1 Visual Privacy of the R Codes and do not result in any overlooking and resultant loss of privacy to the southern adjoining property.

 

East

 

The application has been assessed against the lot boundary setback provisions of the City’s Built Form Policy that establishes deemed-to-comply requirements. The deemed-to-comply boundary wall and lot boundary setback standards set out in the Built Form Policy have not been approved by the WAPC. These provisions are given due regard in the assessment of this application.

 

The Built Form Policy requires 6.5 metre lot boundary setbacks to the rear boundary.

 

The application provides a minimum setback of 1.1 metres from the ground floor to the rear boundary, and a minimum setback of 4.15 metres from the upper floor to the rear boundary.

 

In considering the acceptability of the rear lot boundary setbacks proposed, the following is noted:

 

·       The City received submissions that raised concerns with the aesthetic impact and bulky appearance of the building as a result of the reduced setbacks, and adverse impacts relating to amenity, overlooking and overshadowing;

·       The development meets the deemed-to-comply standards for lot boundary setbacks under Clause 5.1.3 of the R Codes (tables 2a/2b) and is acceptable in terms of building bulk and mass;

·       The eastern elevation provides an articulated façade, due to the external stairs stepping back from the eastern boundary. The design has incorporated permeable brickwork to the rear façade as well as curved design detail and landscaping that further soften the building edge. The adjoining eastern properties that have views to the eastern walls also have mature plantings along their rear boundary that would restrict visibility of the proposed development. Photos of the development as viewed from the adjoining eastern properties (No. 55 The Boulevard and No. 57 The Boulevard) is included in Attachment 9;

·       The roof terrace sits entirely within the upper floor roof space, moderating any perceived impacts of building bulk when viewed from the eastern property;

·       The development complies with deemed-to-comply standards for Clause 5.4.1 Visual Privacy of the R Codes and does not result in any overlooking and resultant loss of privacy to the eastern adjoining properties. The external stairs do not fall under the R Code definitions of ‘major openings’ and ‘active habitable spaces’ and is not required to be screened in accordance with Clause 5.4.1 Visual Privacy and

·       The articulation, design detail and required privacy screening provided to the rear elevation, as well as the landscaping incorporated into the rear setback area removes all adverse amenity impacts to adjoining properties. For the above reasons, the development meets the objectives of the R Codes and the Residential zone of LPS2 and having regard to the matters set out in Clause 67(m) and (n) of the Deemed Provisions, is acceptable development.

 

The lot boundary setbacks proposed satisfy the relevant design principles and local housing objectives of the R Codes and Built Form Policy, and are acceptable.

 

Street Walls and Fences

 

The development proposes front fencing to the primary street that contains maximum pier widths of 1.0 metre in lieu of 400 millimetres. The distance between piers is also less than the height of the piers.

 

In considering the acceptability of the street walls and fences, the following is noted:

 

·       The reduced distance between piers and increased width of piers is attributed to the provision of a letter box and metre box within the front fence as well as the fence providing curved design details. The fence remains to be open in style and compliant in height;

·       The fence is visually permeable along the entire primary street frontage, ensuring active street surveillance and maintaining relationships between the public and private domain;

·       The fence is predominantly setback 1.5 metres from the street boundary and provides 700 millimetre high planter boxes in front of the fencing which would accommodate landscaping. The application proposes soft landscaping to be provided within the 1.5 metre setback and planter boxes, including one tree, which would soften the appearance of the fence when viewed from the street and would significantly contribute to the streetscape; and

·       The front fence is compatible with the proposed single dwelling and existing fences within the established streetscape in terms of style and materials, incorporating rendered brickwork and wrought iron infill. The design and style of the fence would positively contribute to existing fences within the street.

 

The front fence proposed satisfies the relevant design principles and local housing objectives of the R Codes and Built Form Policy, and is acceptable.

 

Sightlines

 

The development proposes structures higher than 750 millimetres within 1.5 metres of the proposed driveway.

 

In considering the acceptability of the sightlines, the following is noted:

 

·       The development proposes piers with a 350 millimetre diameter and visually permeable fencing within northern and southern driveway sightline areas. The reduced width of the piers proposed and visually permeable infill ensures that the driveway would maintain sufficient sightlines where it intersects with the adjacent footpath to ensure visibility and safety;

·       The City’s technical officers have reviewed proposal and confirm that fencing has been provided in a manner that enables a safe view of the pedestrian and vehicular traffic for vehicles leaving the property boundary;

·       Solid portions of wall higher than 750 millimetres have been setback 1.5 metres from the driveway and street boundary so as to ensure that vehicles could account for on-coming pedestrians and vehicles at the contact point; and

·       The fence infill and gate that falls within the truncation area would be conditioned to provide a 1:4 infill ratio to further ensure sufficient sightlines.

 

The sightlines proposed satisfy the relevant design principles of the R Codes, and are acceptable.

Landscaping

 

The Built Form Policy sets a deemed-to-comply standard of 15 percent of the site to be set aside for deep soil zones (areas of soil that allows for mature plants and tree growth) and 30 percent canopy coverage at maturity.

 

The development provides 14.6 percent of the site to be set aside as deep soil zones. The applicant has not provided a Landscape Plan that sufficiently demonstrates whether the canopy cover standard has been satisfied.

 

In considering the acceptability of the landscaping proposed, the following is noted:

 

·       The City received objections during community consultation with concerns relating to reduced deep soil zones and canopy cover and the subsequent adverse impacts this would provide to the locality such as reduced vegetation cover and increased urban heat island effect;

·       The proposed landscaping within the street setback reduces the overall impact of the proposal on the public street;

·       The development proposes functional landscaping with a large range of plant species and vegetation. The proposal has incorporated a variety of species to the front setback area, such as fruit trees to create interest and soften the building when viewed from the street. The choice of species within the front setback sufficiently address DRP comments received;

·       The landscaping is provided to the front setback area, side setback areas, rear setback area, and on the rooftop terrace. The provision of pockets of landscaping around the site provides a soft edge to the building form and creates a sense of open space between buildings and the street;

·       The application proposes the remove and replace the existing verge tree to Kalgoorlie Street. Administration recommends a condition be imposed for the replacement of the verge tree. The provision of a replacement verge tree would provide a good level of landscaping amenity for residents/occupants and the community; and

·       Administration’s technical officers confirm that the 30 percent canopy cover could be achieved in the deep soil zones provided on site. Compliant canopy cover would provide for greater landscaping amenity for the residents and the community, further reduce the impact of the development on adjoining residential lots and create a sense of open space between dwellings. It is recommended that Council impose a condition on any approval requiring a landscaping plan to be submitted prior to commencement of development to achieve a compliant canopy coverage in accordance with Clause 5.14 of the Built Form Policy. The applicant has provided their written consent to this condition.

 

The landscaping area provided satisfies the relevant design principles of the Built Form Policy, and is acceptable subject to a condition requiring 30 percent canopy coverage be delivered for the site.

 

Solar Access

 

The R Codes permit 35 percent shadowing to adjoining properties coded R30. The development involves 70.8 percent shadowing to Lot 303 and 7 percent to Lot 23, both of which are to the south of the subject site.

 

In considering the acceptability of the solar access proposed, the following is noted:

 

·       The City received objections during community consultation with concerns relating to the amount of shadowing proposed to adjoining properties and subsequent loss of direct sunlight;

·       While the shadow projection falls across two lots to the south of the subject site, there is only one single house (No. 56 Kalgoorlie Street Mount Hawthorn) constructed across the two lots affected. The two lots have not been recently subdivided, and have existed in their current form for a number of decades. The immediately affected lot (Lot: 303) is 248 square metres and does not meet current site area requirements for a R30 coded site. It is also likely that this lot would be largely overshadowed from a compliant development due to its unfavourable location, dimensions and orientation. If Lot 303 and Lot 23 were to be amalgamated to a total site area of 751 square metres, the proposed development would shadow 28 percent of the site and would meet the deemed-to-comply requirements for Clause 5.4.2 Solar Access of the R Codes. The development provides a sufficient shadow projection to the adjoining southern site.

The solar access provided satisfies the relevant design principles R Codes, and is acceptable.

 

Interaction with the Street

 

A number of the submissions received during the consultation period raised concerns regarding the built form outcome and the development not being consistent with the existing and desired streetscape.

 

The development proposes a high quality and contemporary design and meets either the deemed-to-comply standards or design principles of the R Codes and Built Form Policy.

 

The applicant has submitted amended plans that increases the size of the master bedroom window facing the primary street and has opened the brickwork detailing. The window now meets the definition of ‘major opening’ within the R Codes.

 

The amended plans have demonstrated additional passive surveillance from the upper floor, however the opening does not reduce the solid blank walls and associated dominance of the upper floor when viewed from the street. The bulk, mass and scale of the proposal appears obtrusive to the streetscape and is not in keeping with the scale and character of the established streetscape or locality.

 

The development does not meet the objectives of the R Codes or the Residential zone of LPS2 and having regard to the matters set out in Clause 67(m) and (n) of the Deemed Provision, is not acceptable development.

 


Council Briefing Agenda                                                                                                         26 March 2019


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                                         26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


 


 


 


 


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


 


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


 


 


 


Council Briefing Agenda                                                                                          26 March 2019


 


 


 


 


 


Council Briefing Agenda                                                                                                         26 March 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

 


Council Briefing Agenda                                                                                        26 March 2019

7             Corporate Services

7.4          LATE REPORT: Amendments to the Trading in Public Places Local Law 2008 and Local Government Property Local Law 2008

TRIM Ref:                  D18/193088

Authors:                   Meluka Bancroft, Manager Governance, Property and Contracts

Alice Harford, Senior Strategic Planner

Authoriser:                Kerryn Batten, Executive Director Corporate Services

Attachments:             1.       Trading in Public Places Amendment Local Law 2019 (draft)

2.       Local Government Property Amendment Local Law 2019 (draft)

3.       Street Entertainment Policy (draft)

4.       Trading In Public Places Local Law 2008 (with amendments marked up)

5.       Local Government Property Local Law 2008 (with amendments marked up)  

 

Recommendation:

That Council:

1.       GIVES Statewide and local public notice, in accordance with section 3.12 of the Local Government Act 1995 stating that:

1.1     It is proposed to make the City of Vincent Trading in Public Places Amendment Local Law 2019 at Attachment 1;

1.2     The purpose of the City of Vincent Trading in Public Places Amendment Local Law 2019 is to repeal the City of Vincent Trading in Public Places Amendment Local Law 2015 and to amend the City of Vincent Trading in Public Places Local Law 2008 to:

1.2.1  align the provisions with the City’s online permit process for outdoor eating areas, goods, display and portable advertising signage; 

1.2.2  manage the placement of portable advertising signage on local government property;

1.2.3  simplify the requirements relating to the Permit Free Entertainer Zones; and

1.2.4  to make administrative modifications so that the local law aligns with the City’s current objectives and processes;

1.3     The effect of the City of Vincent Trading in Public Places Amendment Local Law 2019 is that:

1.3.1  the City’s online permit process for outdoor eating area, goods display and portable advertising signage will be reflected in the local law;

1.3.2  portable advertising signage on local government property will now be governed by the Trading in Public Places Amendment Local Law 2019;

1.3.3  the requirements relating to the Permit Free Entertainer Zones are simplified within the local law and additional guidelines will be provided in an associated Policy;

1.3.4  administrative modifications are made to ensure the local law aligns with the City’s current objectives and processes;

1.4     Copies of the proposed local law are available for inspection at the City’s office, Library and Local History Centre and on its website; and

1.5     Submissions on the proposed local law may be made to the City within a period of not less than six weeks after public notice is given;

2.       NOTES that the City of Vincent Trading in Public Places Amendment Local Law 2015 will be repealed;

3.       GIVES Statewide and local public notice, in accordance with section 3.12 of the Local Government Act 1995 stating that:

3.1     It is proposed to make the City of Vincent Local Government Property Amendment Local Law 2019 at Attachment 2;

3.2     The purpose of the City of Vincent Local Government Property Amendment Local Law 2019 is to amend the City of Vincent Local Government Property Local Law 2008 to:

3.2.1  remove provisions relating to portable advertising signage on local government       property;

3.2.2  to increase the deterrent for causing damage to local government property or            using local government property for a commercial activity without a permit;

3.2.3  to increase the efficiency in the management (beautification) of verges;

3.2.4  to deter damage or removal of trees on verges, thoroughfares or local                        government property;

3.2.5  to prohibit and effectively deter the use of recording devices within change               rooms; and

3.2.6  to make administrative modifications so that the local law aligns with the City’s         current objectives and processes;

3.3     The effect of the City of Vincent Local Government Amendment Local Law 2019 is that:

3.3.1  portable advertising signage on local government property will now be                      governed by the City of Vincent Trading in Public Places Amendment Local Law     2019;

3.3.2  increased penalties will apply for causing damage to local government property        or using local government property for a commercial activity without a                              permit;

3.3.3  the conditions relating to management (beautification) of verges are prescribed         in the City’s relevant policy;

3.3.4  increased penalties will apply for damage or removal of trees on verges,                    thoroughfares or local government property;

3.3.5  the use of recording devices within change rooms is prohibited and an                      appropriate penalty is applicable; and

3.3.6  administrative modifications are made to ensure the local law aligns with the             City’s current objectives and processes;

3.4     Copies of the proposed local laws are available for inspection at the City’s office, Library and Local History Centre and on its website; and

3.5     Submissions on the proposed local laws may be made to the City within a period of not less than six weeks after public notice is given;

4.       NOTES that in accordance with Section 3.12(3)(b) of the Local Government Act 1995 a copy of the proposed local laws and public notice will be provided to the Minister for Local Government;

5.       NOTES that any submissions received as a result of the public notice provided as set out in 1. and 3. above will be presented to Council for consideration;

6.       GIVES local public notice of draft Policy No 3.10.4 – ‘Street Entertainment’, at Attachment 3, which sets out the guidelines for street entertainment, for a period of not less than 21 days, in accordance with the City’s Policy No. 4.1.1. ‘Policy Manual – Adoption and Review of Policies’; and

7.       NOTES that any submissions received in relation to 6. above will be presented to Council for consideration.

 

Purpose of Report:

To consider giving public notice of the City of Vincent Trading in Public Places Amendment Local Law 2019, City of Vincent Local Government Property Amendment Local Law 2019 and Street Entertainers Policy.

Background:

Council, at its meeting of 7 March 2017, resolved (in part) as follows:

 

“That Council:

 

1.         Pursuant to section 3.16(4) of the Local Government Act 1995, DETERMINES BY ABSOLUTE MAJORITY that it considers that the following local laws should be amended for the reasons set out below and REQUIRES Administration, for each local law, to present a report back to Council by September 2017 to consider making amendments to those local laws, pursuant to section 3.12 of the Local Government Act 1995:

 

Local Law

Reason

Trading in Public Places Local Law 2008

To satisfy action 7.2 of the City’s Corporate Business Plan 2016/17 – 2019/20.

Local Government Property Local Law 2008

To address concerns that construction activity on private property is damaging or obstructing access to footpaths, thoroughfares and other public places; and

To increase the City’s powers to deal effectively with for-profit groups that use public spaces without agreement.”

 

Action 7.2 of the City’s Corporate Business Plan 2016/17 – 2019/20 relates to Council’s resolution from its meeting of 5 April 2016 concerning the process for outdoor eating areas and display of goods. Council’s resolution is provided below:-

 

“That Council:

 

1.         REQUESTS the Chief Executive Officer to prepare an amendment to the City of Vincent’s Trading in Public Places Local Law 2008 for Council’s formal consideration and following public consultation on the 8-yearly review of local laws, in order to give effect to the following changes to the licencing of Outdoor Eating Areas and Display of Goods on Footpaths:

 

1.1        To generally remove the need for the City’s approval of outdoor eating areas and display areas, where those areas comply with existing Local Law and Policy standards and conditions for approval of such areas; and

 

1.2        To specify any circumstances where the City’s approval will still be required;

 

2.         NOTES AND ENDORSES Administration’s intent to develop an electronic self-assessment and self-certification tool to assist businesses in the City of Vincent to apply  for and obtain licences for outdoor eating area and outdoor display areas as an interim measure, pending the formal review and revision of the Trading in Public Places Local Law 2008; and

 

3.         LISTS for consideration in the Draft 2016/17 Annual Budget a revision and reduction to the fee charged for outdoor eating areas and outdoor display areas, to reflect the self-assessment and self-certification approach referred to in 2 above.”

 

The Trading in Public Places Amendment Local Law 2015 was gazetted on 15 January 2015 to introduce provisions relating to Permit Free Entertainer Zones. The Department of Local Government and Communities, now the Department of Local Government, Sport and Cultural Industries (DLGSC) identified procedural inconsistencies following gazettal relating to the period of statewide notice, differences between the advertised and gazetted version of the local law and the incorrect operation date for the Amendment Local Law 2015 being published. This may affect the validity of the local law if it were to be challenged and therefore should be rectified as part of this amendment process.

 

This report is presented to repeal the City’s Trading in Public Places Amendment Local Law 2015 and to amend the City’s Trading in Public Places Local Law 2008 and Local Government Property Local Law 2008 in accordance with the process prescribed in section 3.12 of the Local Government Act 1995.

Details:

Trading In Public Places Local Law

Council’s resolution of 5 April 2016 and item 7.2 of the City’s Corporate Business Plan 2016/17 – 2019/20 sought to generally remove the need for the City’s approval of outdoor eating areas and goods displays that complied with the requirements of the Trading in Public Places Local Law 2008.

 

In February 2018, the City launched the electronic self-assessment and self-certification tool for outdoor eating areas, portable advertising sign and goods display permits (online permit process). The online permit process allows business owners to make their application for an outdoor eating area, goods display or portable advertising sign permit online and receive an automatically generated permit, where they meet the requirements.

 

Having reviewed the Trading in Public Places Local Law 2008 in the context of the success of the online permit process, it is considered that removing the need for approval altogether for outdoor eating areas, goods display and portable advertising signs could unnecessarily increase the City’s risk of non-compliance with the Trading in Public Places Local Law 2008, which may affect public safety and amenity. As an alternative, appropriate amendments to the Trading in Public Places Local Law 2008 to complement the online permit process will ensure that the process for obtaining a permit will be simple and efficient for local businesses. This approach is in line with Council’s desire to generally remove the need for approval which stemmed from the length of time that it was taking the City to determine applications for permits and the impact that this was having on local businesses.

 

The proposed amendments to the Trading in Public Places Local Law are as follows:

 

Repealing the Trading in Public Places Amendment Local Law 2015:

 

The inconsistencies with the processing of the Trading in Public Places Amendment Local Law 2015 identified by DLGSC relate to the following:

 

·       Section 3.12(3) of the Local Government Act 1995 requires the local government to provide statewide notice of a proposed local law and provide a public notice period of no less than six weeks (42 days). State-wide consultation for the Trading in Public Places Amendment Local Law 2015 commenced on 18 June 2014 and the closing date for submissions was 11 July 2014, a total of 23 days;

 

·       The advertised version of the proposed local law included specific maps listed in clause 2.10 which identified the location of Permit Free Entertainer Zones. The gazetted version of the local law did not include the maps or zones, and clause 2.10 enabled the City to designate any public place as a Permit Free Entertainer Zone; and

·       Section 3.12(6) of the Local Government Act 1995 requires the local government to issue a public notice indicating the date of gazettal and the day the local law comes into effect. The notice published by the City on 10 February 2015 stated that the local law would come into operation on 23 February 2015 when in fact it came into effect on 30 January 2015.

 

The inconstancies as outlined above could affect the validity of the local law on the basis that the procedural requirements of the Local Government Act 1995 were not satisfied. To remedy this situation, it is proposed to repeal the Trading in Public Places Amendment Local Law 2015. This will remove any doubt as to the validity of the local law. The rescission process can be undertaken simultaneously to the amendments currently proposed.

 

Aligning the Trading in Public Places Local Law 2008 with the online permit process:

 

The implementation of the online permit process, whilst greatly reducing the timeframes associated with the processing of application for permits, does not provide the City the ability to verify the information submitted by the applicant before the permit is issued. This may result in incorrect information being submitted. A number of amendments are proposed to the local law in order to remedy this issue by expanding the circumstances under which the City can cancel or suspend a permit, including:

 

·      If the application is found to be incomplete or incorrect;

·      If the application is found to contain incorrect or falsified information;

·      If the City considers the activity permitted by the permit poses a public health, safety or amenity issue;

·      If valid development approval is not held for the premises which relate to the activity permitted by the permit; and

·      Where a permit already exists for the same location.

 

Including provisions relating to the display of portable advertising signs (this is currently included within the Local Government Property Local Law 2008), and introducing penalties that relate to this activity:

 

The requirements relating to the display of portable advertising signs are currently located in the Local Government Property Local Law 2008. It is proposed to relocate these provisions to the Trading in Public Places Local Law 2008, given that these signs relate to businesses trading in a public place. The provisions related to fixed advertising signage, directional signs and election signs will still be retained in the Local Government Property Local Law 2008.

 

Clarifying the requirements that apply to the Permit Free Entertainer Zone:

 

The Trading in Public Places Amendment Local Law 2015 includes a number of obligations for both performers inside and outside of the Permit Free Entertainer Zones, as well as referring to a set of ‘Risk Management Guidelines and Code of Practice for Street Performers’. This document however was not adopted by Council at the time of gazettal of the Trading in Public Places Amendment Local Law 2015 and as such has not been applied.

 

It is proposed firstly, to simplify the requirements for Permit Free Entertainer Zones within the Trading in Public Places Local Law 2008, and secondly to adopt a revised set of guidelines for street entertainers in the form of a policy which will be referred to within the local law and provide guidance for all performers within the City of Vincent. The revised Street Entertainment Policy is included as Attachment 3.

 

Local Government Property Local Law

 

The proposed amendments to the Local Government Property Local Law 2008 are discussed in turn below.

 

Portable advertising signs

 

Provisions relating to the display of portable advertising signs on local government property and thoroughfares are proposed to be removed from the local law as these requirements will now be incorporated within the Trading in Public Places Local Law 2008, as explained above.

 

 

 

 

 

Deterring damage to local government property, including trees

 

To address concerns that construction activity on private property is damaging or obstructing access to footpaths, thoroughfares and other public places, a number of penalties are proposed to be increased in order to act as a more realistic deterrent.

 

It is also proposed to create two separate offences for failing to obtain a permit to carry out works on local government property and for failing to comply with the conditions of that permit. This will enable the City to increase the penalties relating to this activity without increasing the penalties that relate to other activities that require a permit. Similarly, a specific offence will be created for failure to pay a bond or security when required to do so by the City. The proposed prescribed penalties for the above are $500.

 

In order to deter damage or removal of trees on local government property or on a thoroughfare, the penalty is proposed to be increased from $300 to $5,000.

 

These amended / new penalties are detailed below:

 

Clause

Description

Current Penalty

Proposed Penalty

3.5(2)

Failure to comply with conditions of a permit for works on local government property.

100

500

3.14(2)

Failure to obtain a permit to carry out works on local government property.

-

500

3.14(3)

Failure to obtain a permit to use local government property or a community facility for a for profit purpose

-

500

5.3(m)

Using a mobile phone, camera or other recording device in a change room in a pool premises, library or other community facility

-

500

9.1

Damaging a thoroughfare or anything belonging to or under the care, control or management of the local government that is on a thoroughfare.

200

500

9.2(1)(a)

Failing to take necessary precautions to ensure footpaths, verges or trees are not damaged during works.

200

500

9.2(1)(b)

Failing to ensure footpath remains in a safe and functioning state suitable for use by the public.

200

500

9.2(2)(a)

Failing to take reasonable precautions to prevent damage to footpath, verge or street tree.

200

500

9.4

Failure to install or maintain a verge in accordance with the relevant City policy, as amended from time to time.

100

250

10.1(g)

Damaging or removing a tree, which includes a tree on a verge, thoroughfare or local government property, or a part thereof, without the approval of the local government.

300

5,000

 

Deterring for-profit activities on local government property without a permit

 

In relation to increasing the City’s powers to deal effectively with for-profit groups that use public spaces without agreement, a new clause is proposed which deals with using local government property or a community facility for a commercial purpose (including group fitness). This offence has prescribed a penalty of $500, as set out in the above table. 

 

Prohibiting the use of recording devices in change rooms

 

As part of the review it was also identified that the local law did not expressly prohibit the use of recording devices within change rooms at pool premises, the library or other community facilities. This was currently managed through the use of signage in change rooms, with enforcement possible for non-compliance with a direction on a sign. Introducing this express provision will streamline the management of this, and enables an increased penalty to be prescribed. The proposed penalty is $500, as set out in the table above.

 

Further additional administrative changes have been made to ensure the local law aligns with the City’s current practices and strategic objectives. Changes have also been made to reduce the prescriptiveness of the local law. An example of this is the removal of a number of clauses relating to verge treatments. As the requirements for treatments, planting and beautifications of a verge are stipulated in the City’s relevant policy, it is appropriate for the local law to refer to verges being treated, planted and beautified in accordance with the City’s relevant policy, as amended from time to time. A penalty of $250 is proposed for non-compliance.

 

Another example is the removal of the prohibition to play or participate in sport on a street

 

Track changes versions of the Trading in Public Places Local Law 2008 and Local Government Property Local Law 2008 including the prosed amendments are provided at Attachments 4 and 5 respectively.

Consultation/Advertising:

Section 3.12 of the Local Government Act 1995 sets out the consultation requirements for making a local law. This section of the Act is reproduced in the Legal/Policy section of this report.

 

The City’s Community Consultation Policy No. 4.1.5 also requires that notice of the proposed amendment local law is provided on the City’s website and to local businesses and community groups.

 

The proposed amendments to the Trading in Public Places Local Law 2008 were presented to the Council Members at a workshop on 20 November 2018. Both marked up local laws were subsequently circulated to Council Members on 20 February 2019 for review and comment.

Legal/Policy:

Section 3.12 of the Local Government Act 1995 sets out the requirements for making a local law:

 

"3.12.   Procedure for making local laws

 

(1)        In making a local law a local government is to follow the procedure described in this section, in the sequence in which it is described.

 

(2A)      Despite subsection (1), a failure to follow the procedure described in this section does not invalidate a local law if there has been substantial compliance with the procedure.

 

(2)        At a council meeting the person presiding is to give notice to the meeting of the purpose and effect of the proposed local law in the prescribed manner.

 

(3)        The local government is to —

 

(a)        give Statewide public notice stating that —

 

(i)         the local government proposes to make a local law the purpose and effect of which is summarized in the notice; and

 

(ii)        a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and

 

(iii)        submissions about the proposed local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; and

 

(b)        as soon as the notice is given, give a copy of the proposed local law and a copy of the notice to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister; and

 

(c)        provide a copy of the proposed local law, in accordance with the notice, to any person requesting it.

 

(3A)      A notice under subsection (3) is also to be published and exhibited as if it were a local public notice.

 

(4)        After the last day for submissions, the local government is to consider any submissions made and may make the local law* as proposed or make a local law* that is not significantly different from what was           proposed.

 

* Absolute majority required.

(5)        After making the local law, the local government is to publish it in the Gazette and give a copy of it to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister.

 

(6)        After the local law has been published in the Gazette the local government is to give local public notice

 

(a)        stating the title of the local law; and

(b)        summarizing the purpose and effect of the local law (specifying the day on which it comes into operation); and

(c)        advising that copies of the local law may be inspected or obtained from the local government’s office.

 

(7)        The Minister may give directions to local governments requiring them to provide to the Parliament copies of local laws they have made and any explanatory or other material relating to them.

 

(8)        In this section — making in relation to a local law, includes making a local law to amend the text of, or repeal, a local law."

 

In accordance with Policy No. 4.1.5 – Community Consultation, Administration will also write to any impacted Business and Community Groups.

Risk Management Implications:

Low:    There are considered to be minimal risks involved in reviewing the City’s local laws and making the proposed amendments.

Strategic Implications:

This is in keeping with the City’s Strategic Community Plan 2018 – 2028:

 

“Innovative and Accountable:

 

The City of Vincent has a significant role to play in supporting our community to realise its vision. To achieve this, we will be an innovative, honest, engaged and responsible organisation that manages resources well, communicates effectively and takes our stewardship role seriously.”

SUSTAINABILITY IMPLICATIONS:

Not applicable.

Financial/Budget Implications:

There are nominal costs associated with making the local laws, including advertising and Gazettal, which can be expended from the City’s operating budget.


Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                          26 March 2019

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Council Briefing Agenda                                                                                        26 March 2019

10           Motions of Which Previous Notice Has Been Given

10.1        LATE REPORT: Notice of Motion - Cr Topelberg - Tender or Quotations for Bulk Verge Collection

TRIM Ref:                  D19/44169

Attachments:             Nil

 

 

That Council:

1.       REQUESTS that Administration:

1.1     DOES NOT proceed with a Tender or Quotations for Bulk Verge Collection beyond the existing contract;

 

1.2     PROVIDES a report to Council no later than June 2019 with alternative options for bulk waste management and collection in City, including financial modelling; and

 

1.3     that the options presented be capable of being implemented in the 2019-20 financial year, subject to council decision

 

 

Reason

The current system presents unacceptable issues in terms of:

 

·      unsightly verges throughout the City for approximately two months of the year;

·      potential danger to pedestrians & passers-by;

·      rubbish being blown into neighbouring properties;

·      potential damage to established street trees and verge plantings;

·      little "recycling" value in an age of resources such as Gumtree and Buy Nothing;

·      Issues relating to noise and antisocial behaviour from late-night verge hunters;

·      illegal dumping / dumping on other peoples' property;

·      post-collection dumping and associated clean-up; and

·      the current system likely no longer reflects the best value for the City.


Based on the above, it is requested that the City investigate and report on an improved system for implementation in the coming financial year.

 

Administration Comments

Project 2 of the City’s Waste Strategy 2018-2023 is the Bulk Hard Waste Service Option Appraisal which is due to be completed by June 2019.  The Strategy recognises that the current collection system is not contemporary and results in low environmental performance.  There are a number of alternative methods of collecting bulk waste.

 

Administration supports the intent of the Notice of Motion.