Proposed Change of USE - grouped dwelling to community ... · • A retrospective planning application was made for the operation of Shalom House on 22 June 2015. The application

Ordinary Meeting of Council 04 July 2018

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3.3 PROPOSED CHANGE OF USE - GROUPED DWELLING TO COMMUNITY PURPOSE (SHALOM HOUSE) - LOT 1 (NO.1-3/157) PARK STREET, HENLEY BROOK

Ward: (Swan Valley/Gidgegannup Ward) (Statutory Planning)

Disclosure of Interest: Nil.

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• A retrospective planning application was made for the operation of Shalom House on 22 June 2015. The application was refused by the City on the grounds that Shalom House was a “Residential Building” pursuant to the City’s Local Planning Scheme No.17 and so a use prohibited in the “Rural Residential” zone applicable to the land.

• That decision subsequently progressed through the State Administrative Tribunal and the Court of Appeal (Supreme Court). On remit from the Court of Appeal the SAT again heard the matter in March of 2018 and found that Shalom House is not a “Residential Building” but a “Community Purpose” use and so capable of approval.

• The SAT has ordered that the City consider the application on its merits on or before 27 July 2018.

• The land is zoned “Rural Residential” under LPS 17 and “Community Purpose” is a “D” use in this zone.

• The application was advertised for public comment for a period of 17 days to all those person whom made a submission when the application was initially advertised in 2015. A total of 106 submissions were received, comprising 48 non-objections and 58 objections variously on the grounds of perceived safety risk, potential anti-social behaviour, inconsistency with Swan Valley Planning Act framework - being a non-agricultural use and a use not pertaining to tourism- devaluation of the value of properties in the locality, potential for approval to establish an undesirable precedent and pollution from onsite effluent disposal systems.

• The application had been presented to the Swan Valley Planning Committee for consideration in accordance with the requirements of the Metropolitan Region Scheme. The Committee, at its meeting of 3 August 2015, resolved that the use is ‘residential’ not ‘community purpose’ and that it is not compatible with planning objectives 1,2 and 3 for Area A of the Swan Valley Planning Act 1995 and ought to be refused.

• Noting that there is limited physical development proposed under this application, City staff are satisfied that the proposed change of use will not entail noise, traffic or anti-social behaviour that would adversely affect the rural character of the area or the existing environmental characteristics of the land.


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• Whilst the proposed development is at odds with planning objectives 2 and 3 for Area A of the Swan Valley Planning Act 1995, on a balanced assessment this is considered to be outweighed by the benefits that the rehabilitation activities bring to the wider community.

• The proposed development is considered to provide for sufficient on-site car parking and will need to obtain approval for any additional on-site effluent disposal requirements.

• As it is within a Bushfire Prone Area, a Bushfire Hazard Level assessment will be required as a condition of any planning approval. Dependent upon the findings of this assessment, further bushfire risk mitigation measures, inclusive of provision of an emergency evacuation plan may be required.

City staff recommend the Council grant conditional approval to the proposed change of use.

AUTHORITY/DISCRETION

Pursuant to s.31 of the State Administrative Tribunal Act 2004 Council, as the respondent, is invited to reconsider its decision on or before 27 July 2018.

2015 Regulations (cl.68(2))

Council has discretion in accordance with cl.68(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 to determine an application for development approval by:

• granting development approval without conditions; or

• granting development approval with conditions; or

• refusing to grant development approval.

The Planning and Development Act 2005 section 164 sets out the effect of approval for development already commenced or carried out.

Council has the discretion in accordance with Part 8.4.1 of the City's Local Planning Scheme No.17 to grant planning approval to a use or development already commenced or carries out regardless of when it was commenced or carried out. Such approval shall have the same effect for all purposes as if it has been given prior to the commencement or carry out of the development, but provided that the development complies with the provisions of the Scheme as to all matters other than the provision requiring the Local Government's approval prior to the commencement of development.


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RIGHT OF REVIEW

2015 Regulations (cl.76(2))

In accordance with cl.76(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 an affected person (meaning the applicant of the subject development application or the owner of the subject land) may apply to the State Administrative Tribunal for a review of a reviewable determination in accordance with the Planning and Development Act 2005 Part 14.

BACKGROUND

Applicant: West Australian Shalom Group Inc. Owner: Swan Valley (WA) Pty Ltd Zoning: LPS17 - Rural Residential MRS - Rural Strategy/Policy: POL-TP-129 - Vehicle Parking Standards Existing Land Use: Community Purpose Lot Area: 40,016m2 Use Class: “Community Purpose” “D”

DETAILS OF THE PROPOSAL

The details of the application subject of reconsideration are for the use of the premises by West Australian Shalom Group Inc. comprising various activities, all for the purpose of rehabilitating men with life controlling issues, inclusive of drug addiction. The precise nature of all activities are set out in the extract from the published SAT decision being pages 23 to 32 under the heading Shalom House Programme.

Site Context

The subject site is a rectangular lot of some 4 hectares in area with road frontage to Park Street and Murray Road in the locality of Henley Brook. The property contains a large rectangular brick and tile building situated lose to the north-east corner, understood to originally have been built as a single residence but subsequently converted into, and granted planning approval as, three grouped dwellings. The balance of the land is paddock with some incidental structures.

The immediate surrounding land comprises similar sized rural residential lots. Further to the west along Park Street is the adjoining locality of Brabham which has been developed at an urban residential density.

PUBLIC CONSULTATION

The application was first advertised for public comment in 2015 and received 565 submissions. The application was readvertised with written notification to those 565 submitters on 6 June 2018 affording a period of 17 days until 22 June 2018 to make further comment. At the close of advertising 106 submissions had been received, comprising 58 objections and 48 non-objections/comments in support.


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Reasons for objection variously comprised:

• Drug addicts are safety risk to surrounding residents;

• Anti-social behaviour;

• Inappropriate in the Swan Valley - is not an agricultural use nor a tourism use;

• Proliferation of Shalom House facilities in swan valley - devaluing the area;

• This type of use sets an undesirable precedent; and

• Pollution from effluent disposal systems

• Use is not “Community Purpose”

These will be discussed further in the report.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

The application was considered by the Swan Valley Planning Committee at its meeting of 3 August 2015, where the Committee resolved:

1. note that the land use for the development application is ‘residential’, not “community purpose’; and resolves;

2. that the proposed development at Lot 1 (No.1-3/157) Park Street, Henley Brook is not compatible with the planning objectives 7.1, 7.2 and 7.3 for Area A and the Swan valley Interim Planning Policy; and

3. recommends that the application be refused.

ASSESSMENT

The City’s scheme and the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 sets out, at Cl. 67, matters to be considered by local government (in dealing with applications for development approval). These are:

(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

(c) any approved State planning policy; (d) any environmental protection policy approved under the Environmental

Protection Act 1986 section 31(d); (e) any policy of the Commission; (f) any policy of the State; (g) any local planning policy for the Scheme area;


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(h) any structure plan, activity centre plan or local development plan that relates to the development;

(i) any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015;

(j) in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;

(k) the built heritage conservation of any place that is of cultural significance;

(l) the effect of the proposal on the cultural heritage significance of the area in which the development is located;

(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; (iii) social impacts of the development; (o) the likely effect of the development on the natural environment or water

resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;

(p) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;

(q) the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;

(r) the suitability of the land for the development taking into account the possible risk to human health or safety;

(s) the adequacy of — (i) the proposed means of access to and egress from the site; and (ii) arrangements for the loading, unloading, manoeuvring and

parking of vehicles; (t) the amount of traffic likely to be generated by the development,

particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

(u) the availability and adequacy for the development of the following — (i) public transport services; (ii) public utility services; (iii) storage, management and collection of waste; (iv) access for pedestrians and cyclists (including end of trip storage,

toilet and shower facilities); (v) access by older people and people with disability; (v) the potential loss of any community service or benefit resulting from the

development other than potential loss that may result from economic competition between new and existing businesses;

(w) the history of the site where the development is to be located;


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(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

(y) any submissions received on the application; (za) the comments or submissions received from any authority consulted

under clause 66; (zb) any other planning consideration the local government considers

appropriate.

Where considered relevant to the subject application, the above matters are detailed below.

Zoning & Permissibility of Land Use

The subject site is zoned ‘Rural’ under the Metropolitan Region Scheme (MRS) and ‘Rural Residential’ under the City’s Local Planning Scheme No. 17 (LPS17).

The State Administrative Tribunal, in its Orders of 25 May 2018, has determined the preliminary issues on appeal that the proposed development is not properly classified as ‘Residential Building’ under the City of Swan Local Planning Scheme No.17 and is properly classified as ‘Community Purpose’ and therefore capable of approval under the City’s scheme.

With respect those submissions from the public that contend Shalom is not a “Community Purpose” use must be set aside as wrong.

‘Community’ purpose is a ‘D’ use in the ‘Rural Residential’ zone.

The objectives for the ‘Rural” Residential’ zone are to:

(a) provide for low density residential development and associated rural-residential activities in comprehensively planned estates;

(b) recognise the environmental characteristics of the landscape, including landform, water resources, remnant vegetation, and native fauna, and to ensure as far as practicable, that these characteristics are not compromised by development and use of the land;

(c) encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.

With respect to the first objective, and following from the SAT decision on the classification of the proposed development, - the residential activity occurring at the premises is ancillary, incidental and subordinate to those activities that comprise the “Community Purpose” use. The fact that up to 35 men may be accommodated at the premise as part of Shalom’s rehabilitation programme does not constitute residential use of itself that requires planning approval.

The application, in changing the use of the premises from a residential use (three grouped dwellings) to a “Community Purpose” use is not considered to fulfil this first objective to provide for “low density residential development”.

With respect to the second objective, City staff accept that the use of the existing building for “Community Purpose” does not alter any of the existing environmental characteristics of the land such as they are. The proposed development is therefore considered to fulfil this objective.


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With respect to the third objective, it is a fact that the proposed development does not entail any programme of replanting of native trees or other vegetation. The question may be whether this third objective is properly intended to operate in application were proposed development may be effecting vegetation clearing – that is a form of “offset” of replacement planting for that vegetation and habitat that the physical development of the land may in the first instance remove.

As a parcel of land that has previously been almost entirely cleared of native vegetation, ostensibly for the purpose of providing paddock area, the land would seem to provide no habitat for indigenous fauna. City staff therefore do not consider it necessary to require replanting of native vegetation to give the land something it does not have. However if Council consider it necessary for the proposed development to fulfil this objective than it is considered that a degree of replanting can be required and effected through a condition of planning approval.

State Planning Policy, Environmental Protections Policies or other Western Australian Planning Commission policies

Other than State Planning Policy 3.7 Planning in Bushfire Prone Areas and the Government Sewerage Policy, it is considered by City staff that that there are no form of the above policy instruments specifically relevant to the assessment of the above application.

The land is not flood prone. The proposed development will not affect any place on the state register of heritage places nor any place on the City’s Heritage list.

The subject lot is partially a “Bushfire prone area” as defined under State Planning Policy 3.7. It is identified on the Map of Bushfire Prone Areas. The implications of this will be discussed further in the report.

Swan Valley Planning Act 1995

The subject lot is located within what is defined as Area A under the Swan Valley Planning Act 1995.

The provisions of the Metropolitan Region Scheme require any application for development approval of land within the Swan Valley Planning Act area to be referred to the Swan Valley Planning Committee. As noted previously in this report that occurred on 3 August 2015.

The Act sets out six planning objectives for any proposed development in Area A. It is only the first three of these that are relevant to this proposed development of a change of use of an existing building. These are:

1. The maintenance of the rural character of the area. 2. The encouragement of viticulture, horticulture, hobby farming and rural

activities compatible with rural residential uses in the area. 3. The encouragement of tourism that complements the rural character of the

area.

The Committee contends that the proposed development is not consistent with these three. Multiple submissions from the public contend the same.


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Whether the proposed development maintains the rural character of the area is considered to be limited to consideration of noise, traffic and the behaviour of programme participants. With respect to the first, the City is not in receipt of any complaints from surrounding residents as to excessive noise from Shalom’s operation at the premises. Neither was noise raised as an issue in public submissions. Accordingly City staff have no reason to consider that the proposed development will adversely affect the rural character of the area by way of the generation of noise.

The same applies to traffic- this has not been cited as a concern in opposition to the proposed development. It is understood as a feature of the proposed development that access to and from the premises is closely regulated by the operators such that transportation is arranged en masse, with participants prohibited from free and private movement to and from the premises. Vehicle trips are therefore in the nature of bus movements taking programme participants to and from work programmes and on weekend group activities. Private movements to and from the premises by Shalom staff, counsellors and medics and the like are not considered to greatly exceed the number of vehicle trips expected of an ordinary residential property (8-10 vehicle trips per day). Accordingly It is not considered that traffic generated from the proposed development will adversely affect the amenity of the locality nor exceed the capacity of the existing road network. These regulated arrangements are recommended to be acknowledged and maintained as a condition of any planning approval.

It has been noted through the proceedings of this application through the court system over the past three years that the operations of WA Shalom Inc. are highly self-regulated and highly disciplined; - in effect affording no tolerance of any form of anti-social behaviour by programme participants. City staff understand the concern raised in public submissions, most particularly by residents of the Henley Brook and Brabham localities, that a proximate premises containing individuals with drug addiction issues may present a safety risk to themselves and their families.

However looking objectively at this concern, there is no evidence available to City staff that, in the operation of the facility over the duration, there have been instances of anti-social or criminal behaviour alleged against programme participants. City staff have every reason to believe that the highly disciplined regime provided by WA Shalom Inc. works to prevent this.

For these reasons City staff cannot be satisfied that the concerns expressed in public submissions have a sound basis in fact that would warrant a refusal of the proposed development.

In terms of the proposed development maintaining the rural character of the area, City staff are of the view that it does.

With respect to both the second and third planning objective for Area A of the Act, it is a fact that the proposed development does not comprise viticulture, horticulture, hobby farming, tourism or other rural activity. Accordingly City staff agree with the Swan Valley Planning Committee and those that have made submissions that the proposed development does not fulfil these.


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Impact of development on community as a whole

City staff accept that the rehabilitation activities of Shalom house have a wide community benefit. His Honour Judge Parry made these findings at paragraphs 129, 132, 133, 135, 136, 138 -140 (inclusive) in his decision.

It is considered that this wide community benefit associated with the proposed development is a matter of some great significance that ought to be weighed judiciously against its non-compliance with the zoning objective to provide for low density residential development and planning objectives 2 and 3 for Area A under the Swan Valley Planning Act 1995.

City staff consider it no hyperbole to make reference to a national “methamphetamine epidemic” as evidence in the SAT hearing did. The dire and tragic consequences of such drug use are manifest almost daily in newspaper and other media reports.

To that end City staff accept that the benefits that successful rehabilitation of drug addicts bring to the wider community in this instance outweighs, in a discretionary consideration, the fact that the use has no agricultural, tourism or rural aspect to it.

Car parking

The City’s policy POL-TP-129 - Vehicle Parking Standards does not stipulate a parking standard for a “Community Purpose” use. It is considered that the 9 onsite parking bays are sufficient to meet parking requirements for the proposed development.

The parking of buses on the premises associated with transportation of programme participants to work and recreational activities are not considered to require planning approval by virtue of clause 5.10.3(b) of the City’s Scheme.

Bushfire

As part of the subject lot, including that part upon which the existing building is situated, is designated a Bushfire prone area the proposed development will need to provide a Bushfire Hazard Level Assessment by Bushfire Planning Practitioner. This is recommended as a condition of any planning approval. This assessment will determine the Bushfire Attack Level that the building is subject to. If that assessment determines the level of risk to be greater than Low Risk than the building may be required to comply with Australian Standard AS3959 as set out under the Building Code of Australia.

It is considered likely that the operation, as a “Community Purpose” use may be considered to be a vulnerable land use, as outlined in the WAPC document “Guidelines for Planning in Bushfire Prone Areas”. If the Bushfire Hazard Level Assessment determines the risk greater than Low Risk then an Emergency Evacuation Management Plan will be required to be prepared by a Bushfire Planning Practitioner to the satisfaction of the City on advice from the Department of Fire and Emergency Services.

Effluent disposal

The proposed development disposes of effluent onsite. Such systems will be required to comply with the Government Sewerage Policy and will need to obtain approval from the Heath Department of WA.


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Devaluation of land and approval as “undesirable precedent”

Assertions made in public submissions that the proposed use of the premises will cause a reduction in property values are not proper planning considerations.

It is an accepted tenant of the planning framework in Western Australia that every application for development approval is considered on its merits and where so approved cannot be considered an “undesirable precedent”.

CONCLUSION

For the reasons outlined above City staff are of the view that the proposed development is sufficiently compliant with the City’s Local Planning Scheme No.17 to warrant the exercise of discretion to grant conditional approval.

To the extent that it does not comply with some of the planning objectives for Area A of the Swan Valley Planning Act 1995 City staff consider that the particular merits of this “Community Purpose” use justify accepting such non-compliance.

OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to grant approval to the proposed change of use – “Grouped Dwelling”s to “Community Purpose” (Shalom House) – Lot 1(No.1-3/157) Park Street, Henley Brook subject to conditions.

This is the recommended option.

Implications: The existing use of the premises for “Community Purpose” becomes lawful.

Option 2: Council may resolve to refuse to grant approval to the proposed change of use – “Grouped Dwelling”s to “Community Purpose” (Shalom House) – Lot 1(No.1-3/157) Park Street, Henley Brook for the following reasons:

1. The use is considered to be inconsistent with objective a) of the Rural Residential zoning applicable to the land in that it is not a low density residential use; and

2. The use is considered to be inconsistent with planning objectives 2 and 3 for proposed development within Area A of the Swan Valley Planning Act 1995 in that it is not a viticulture, horticulture, hobby farming, tourism or other rural activity.

This is not the recommended option.

Implications

The decision would be likely to be subject to a further hearing in the SAT.


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ATTACHMENTS

Site Plan

Extract from SAT decision (Shalom House Program)

STRATEGIC IMPLICATIONS

Nil.

STATUTORY IMPLICATIONS

Planning and Development Act 2005

Planning and Development (Local Planning Schemes) Regulations 2015

Swan Valley Planning Act 1995

Metropolitan Region Scheme

Local Planning Scheme No. 17

State Planning Policy 3.7 - Planning in Bushfire Prone Areas

Guidelines for Planning in Bushfire Prone Areas

POL-TP-129 - Vehicle Parking Standards

FINANCIAL IMPLICATIONS

Nil.

VOTING REQUIREMENTS

Simple majority


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RECOMMENDATION

That the Council resolve to:

1) Grant approval to the proposed change of use – “Grouped Dwellings" to “Community Purpose” (Shalom House) – Lot 1(No.1-3/157) Park Street, Henley Brook subject to the following conditions:

1. This approval is personal to West Australian Shalom Group Inc. and does not run with the land.

2. The use of the land by West Australian Shalom Group Inc. for “Community Purpose” is limited as follows:

(i) Maximum programme participant occupancy of the premises shall be limited to 35 for a minimum period of three weeks per participant

(ii) Access and egress from the property by programme participants is by arrangement of West Australian Shalom Group Inc.

(iii) Programme participants shall be provided with professional counselling, access to medical practitioners and a supervised work programme by Western Australian Shalom Group Inc.

3. Within 60 days of the date of this approval the applicant/owner is to submit to the City of Swan a Bushfire Hazard Level assessment by a Bushfire Planning Practitioner (as defined under the WAPC guidelines ‘Planning for Bushfire Protection’).

4. Where the Bushfire Hazard Level assessment identifies the premises to be subject to a Bushfire Attack level above “Low-Risk”, the approved development is to comply with Australian Standard AS3535.

5. Where the Bushfire Hazard Level assessment identifies the premises to be subject to a Bushfire Attack Level above “Low-Risk” the applicant/owner is to submit an Emergency Evacuation Plan for the approved ‘Community Purpose’ use, prepared by a Bushfire Planning Practitioner (as defined under WAPC guidelines ‘Planning for Bushfire Protection’) to the satisfaction of the City of Swan on advice from the Department of Fire and Emergency Service

6. A total of 9 car parking bays shall be provided onsite each bay measuring 5.4metres by 2.5 metres, clearly marked on the ground and served by a minimum 6 metres wide paved accessway. Where the accessway abuts a building or other barrier, a minimum width of 6.5 metres is required.

7. The approved development shall be connected to an approved onsite effluent disposal system.

8. Vehicle access to the premises is restricted to that shown on the approved plans.

9. External lighting shall comply with the requirements of AS 4282 - Control of Obtrusive Effects of Outdoor Lighting.


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MOTION that the Council resolve to:

1) Refuse to grant approval to the proposed change of use – “Grouped Dwelling”s to “Community Purpose” (Shalom House) – Lot 1(No.1-3/157) Park Street, Henley Brook for the following reasons:



2) Advise WA Shalom Group Inc. that the Council gives it notice that it has 12 months from the date of Council's decision to cease the use of the Premises for "Community Purpose".

3) Advise WA Shalom Group Inc. that City staff will work with it to assist (non-financial) with its relocation from the premises to another more suitable location.

4) Record the reason for changing the staff recommendation is that the application does not conform with the objectives of the Swan Valley Planning Act 1995.

(Cr Zannino - Cr Bailey)

THE MOTION WAS PUT TO THE VOTE WHICH RESULTED IN AN EQUALITY OF VOTES (6/6)

For: Crs Bailey, Haynes, Jones, Lucas, McCullough and Zannino

Against: Crs Elliott, Henderson, Johnson, Kovalevs, McDonnell and Scanlan

THE PRESIDING MEMBER EXERCISED HIS CASTING VOTE AND VOTED FOR THE MOTION

RESOLVED (7/6) TO:

1) Refuse to grant approval to the proposed change of use – “Grouped Dwelling”s to “Community Purpose” (Shalom House) – Lot 1(No.1-3/157) Park Street, Henley Brook for the following reasons:




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2) Advise WA Shalom Group Inc. that the Council gives it notice that it has 12 months from the date of Council's decision to cease the use of the Premises for "Community Purpose".

3) Advise WA Shalom Group Inc. that City staff will work with it to assist (non-financial) with its relocation from the premises to another more suitable location.

4) Record the reason for changing the staff recommendation is that the application does not conform with the objective of the Swan Valley Planning Act 1995.

Documents

Proposed Change of USE - grouped dwelling to community ... · • A retrospective planning application was made for the operation of Shalom House on 22 June 2015. The application