State Administrative Tribunal Review and Reconsideration - … · 2016-02-12 · ordinary meeting...

Ordinary Meeting of Council 10 February 2016

3.6 STATE ADMINISTRATIVE TRIBUNAL REVIEW AND RECONSIDERATION - CHANGE OF USE FROM SINGLE HOUSE TO 'COMMUNITY PURPOSE' AND 'PLACE OF WORSHIP' - LOT 613 (NO.32) DULWICH STREET, BENNETT SPRINGS (DA93-15)

Ward: (Altone Ward) (Statutory Planning)

Disclosure of Interest: Nil

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• Council at its Ordinary Council Meeting held on 23 September 2015 resolved to refuse the proposed change of use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613 (No.32) Dulwich Street, Bennett Springs because the proposed change of use was considered to not meet the objectives of the General Rural zone as outlined in Clause 4.2.23 of the City’s Local Planning Scheme No.17 (LPS17).

• In view of Council’s refusal of the proposed development, the applicant has applied for a review of Council’s decision under section 252(1) of the Planning and Development Act 2005 to the State Administrative Tribunal.

• As a result of mediation between the City and the applicant undertaken at the State Administrative Tribunal on 30 November 2015 and pursuant to section s.31 of the State Administrative Tribunal Act 2004, Council is invited to reconsider its decision.

• The applicant has submitted revised information dated 23 December 2015. This information consists of a ‘Community Location Plan’ showing the majority of the Ahlulbuyt Community of Western Australia (ACWA) are located within close proximity to the site and a modified site plan which shows the inclusion of a community garden as an incidental component of the development.

• The applicant has provided a transport statement prepared by Shawmac Consulting Civil and Traffic Engineers. The report concludes that the levels of traffic from the proposed use are low and within the capacity of the road network. It further concludes that the intersection of Dulwich and Marshall Road is sufficiently defined by hazard markings to render it safe. City staff have reviewed the report and accept the conclusions of the report.

• City staff consider that the revised information submitted adequately demonstrates that the proposed change of use meets the objectives of the General Rural zone as outlined in clause 4.2.23 of the City’s Local Planning Scheme No.17.

It is recommended that the Council resolve to grant approval for the proposed change of use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ as depicted on plans dated 17 April 2015 and revised plan dated 23 December 2015 on Lot 613 (No.32) Dulwich Street Bennett Springs subject to conditions.

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AUTHORITY/DISCRETION

Council may approve (with or without conditions) or refuse to approve the application.

Pursuant to Section 31 of the State Administrative Tribunal Act 2004 (SAT Act) the City is able to reconsider its decision of 23 September 2015.

BACKGROUND

Applicant: Baha Jasem Owner: Mohamed Raza Bindahneem, Zaid Alsalami and Khalid

Khalil Zoning: LPS17 - General Rural MRS - Urban deferred Strategy/Policy: State Planning Policy 4.3 (Poultry Farms)

POL-C-129 Development Standards – Vehicle Parking Development Scheme: Local Planning Scheme No. 17 Existing Land Use: Single House Lot Size: 2.7315 ha Use Class: ‘Community Purpose’, ‘Place of Worship’

DETAILS OF THE PROPOSAL

The applicant is seeking Council’s approval for a change of use from a ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613 (No.32) Dulwich Street, Bennett Springs. The proposed development seeks to accommodate members of the Ahlulbuyt Community who adhere to the Shia Islamic faith. As the proposal seeks to accommodate a combination of cultural, education and religious functions, the use classes of both ‘Community Purpose’ and ‘Place of Worship’ have been applied. In addition to the change of use, the development proposes some minor modifications in the form of a detached ablution block located on the northern side of the building footprint and a gable roofed patio located adjacent to the existing swimming pool. A total of 31 sealed and drained car parking spaces are proposed, with 2 ACROD bays located next to the existing single house.

The applicant has advised that the following activities will take place in the proposed Community Purpose and Place of Worship;

Praying

Praying will take place in the 125m2 main activity area for durations of 10-30 minutes. This will take place on a daily basis, with numbers varying between 10 daily and 40 people on Fridays.

Assembly

Assembly will also take place in the 125m2 main activity area. ‘Assembly’ will consist of a broad range of activities including lectures, funeral services, weddings and festivals. This will occur on a weekly basis and consist of up to 40 persons, with special occasions such as festivals and weddings involving up to 80 persons on several occasions per year.

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Cultural and language education

This will consist of general cultural and language lectures and language tutoring. This will be located in the 45m2 and secondary activity area. This will occur on a weekly basis and involve up to 20 people.

DESCRIPTION OF SITE

The subject lot is a corner property which addresses Dulwich Street which is described as an access road. The secondary street is the undeveloped portion of Cranleigh Street which runs along the northern lot boundary. The surrounding properties consist of rural style properties ranging in size between 2ha to 4ha with detached or semi-detached dwellings. Dulwich Street adjoins Marshall Road which serves as the local distributor road. The subject site totals 2.7315ha in area and consists of an existing single house, several incidental outbuildings and 2 dams, with the topography of the site being relatively flat. The subject site is located approximately 200m from the Swan Valley Egg Farm and within 500m of other similar establishments such as the Cambodian Welfare and Cultural Centre at Lot 42 Coast Road, Bennett Springs and the Sikh Temple at Lot 597 Cheltenham Street, Bennett Springs.

SITE HISTORY/PREVIOUS APPROVALS

DA-3979/1987 – Shed (approved under delegated Authority)

OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

DA-551/2009 Proposed Sikh Temple and Educational and Cultural Centre (Place of Worship) – Lot 597 (No. 10) Cheltenham Street West Swan (Now known as Bennett Springs ) – Approved by Council on 16 December 2009.

DA-825/2007 Proposed Hindu Temple, Lot 47, (No. 211) Marshall Road Bennett Springs – Approved by Council on 4 November 2009.

DA-12040/1999 Cultural Centre Lot 42 Coast Road Bennett Springs (Approved under delegated authority).

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APPLICANT'S SUBMISSION

In support of the proposed development, the applicant has provided the following:

"We seek to establish a community centre in a suburb that has, in its vicinity, a variety of centres and worshipping places of a multitude of religions and cultures. We are Muslims and our congregation follows the Shia school of thought. The founding fathers of our organisation migrated to Australia over 47 years ago and we have been actively involved in the local community with a very good record with the wider Muslim community and also religions of other faiths. It is to be noted that there is no official Shia Centre in the entire state of Western Australia. However, this has not deterred us from being involved in numerous interfaith forums and has not hindered us from engaging with the wider community and be productive members of this society. As much as we are proud Muslims, we are also proud Australian citizens; we respect Australia – its government and its laws.

Even though we might come from different nationalities, we have made Australia our home. That being said, we also firmly stand against racism, extremism and in particular Islamic radicalism. We are not affiliated with any political parties (domestic or international) and do not intend to do so in the future. This fact can be attested in our constitution as well. We also attend forums and seminars in order to work with the Australian Federal Police and any relevant stakeholders to ensure the safety of Australia and its inhabitants. Our membership demographics include people of all ages with most of our youth being second generation Australian Muslims.

As mainstream Shia Muslims, we adopt a moderate ideology and strongly believe and promote coexistence. The neighbouring residents can rest assured that with regards to our religious affiliation, there is nothing for them to be concerned about. We strictly abide to the local laws and we follow the rules and regulations set by the local council. We would like to inform our neighbours that it is our obligatory neighbours to keep harmony, and honour and respect our neighbours or anyone else for that matter."

PREVIOUS COUNCIL DECISION

Council, at its Ordinary Council Meeting held on 23 September 2015 (Item 15.8 refers) resolved to refuse to grant planning approval for the proposed change of use from ‘Single House’ to ‘Community Purpose’ at Lot 613 (No.32) Dulwich Street, Bennett Springs for the following reason:

1. The proposed Change of Use from ‘Single House’ to ‘Community Purpose and ‘Place of Worship’ does not meet the objectives of the General Rural zone as outlined in Clause 4.2.23 of the City’s Local Planning Scheme No.17.

The applicant is aggrieved with the decision of Council and has exercised their right of appeal in accordance with Part 14 of the Planning and Development Act 2005.

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PUBLIC CONSULTATION

The applicant is aggrieved with the decision of Council to refuse to grant planning approval and has exercised their right of appeal in accordance with Part 14 of the Planning and Development Act 2005. Therefore, no further consultation is required.

However those who had previously lodged a submission have been advised that the matter is up for reconsideration by Council on 10/2/2016.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

N/A

DETAILS

The intention of this report is to review the applicant’s request for the State Administrative Tribunal's favourable determination of the application. Following mediation between the City and the applicant which took place at the State Administrative Tribunal on 30 November 2015 and pursuant to Section 31 (1) of the State Administrative Tribunal Act 2004 the City of Swan is to reconsider the decision made at the Ordinary Council Meeting of 23 September 2015.

Other issues raised during the public consultation period for the proposed development relating to matters such as noise, traffic and the proliferation of places of worship in the Bennett Springs area were addressed in the original report to the Ordinary Council Meeting held on 23 September 2015.

Zoning and Land Use Permissibility

Lot 613 (No.32) Dulwich Street, Bennett Springs is zoned ‘General Rural’ under the City's LPS17. The use classes ‘Community Purpose’ and ‘Place of Worship’ are listed as discretional (D) uses in a General Rural zone which means the proposed use is not permitted unless the local government has exercised its discretion by granting planning approval.

Objectives of the General Rural zone

The objectives of the General Rural zone are listed below as follows:

a) Facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;

b) Provide for a range of limited compatible support services to meet the needs of the rural community, but will not prejudice the development of the land elsewhere which is specifically zoned for such development;

c) Ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character; and

d) Ensure that development and land management are sustainable with reference to capability of land and the natural resource values.

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The previous report to OCM held on 23 September 2015 stated that the proposed change of use did not meet Objectives of a), b) and c) of the General Rural zone, but was compliant with Objective d).

The applicant has provided additional information as part of their application for the proposed development in order to address Objectives for a), b), and c) of the General Rural zone. This information consists of a ‘Community Location Plan’ which illustrates the location of the current ACWA members in proximity to the regional site and a modified site plan showing a proposed 60.72m2 community garden which consists of a combination of gardens located within greenhouses and open gardens capable of growing a variety of produce. The proposed community garden is located behind the existing dwelling and adjacent to the southern side lot boundary. It is noted that there is considerable scope to increase the size of the 60.72m2 community garden if required.

The proposed community garden is considered to meet Objective a) of the General Rural zone as the proposed community garden will be capable of growing a variety of produce which may be sold or distributed to the wider City of Swan community. The community garden seeks to develop the land for the purposes of productive agriculture and has the potential to contribute towards the economic base of the region. The proposed community garden can also be seen as enhancing the rural character of the subject site, with the use of Lot 613 (No.32) Dulwich Street to grow a variety of produce seen as an activity synonymous with activities typically carried out in a rural environment. In light of this, it is considered that objective is also satisfied, with minimal alterations to the existing dwelling and the location of the parking area behind the existing dwelling not resulting in any significant detraction from the existing rural amenity. Should Council accept the provision of a community garden as an acceptable measure to address Objective a) and part of Objective c) a condition requiring its ongoing maintenance to the satisfaction of the City will be imposed.

The ‘Community Location Plan’ was provided by the applicant as a means of demonstrating a need for a community centre and place of worship for the ACWA in the Bennett Springs locality. The original report which was refused by Council at OCM held on 23 September 2015 contended that there was no discernible need in the Bennett Springs community for a community purpose and place of worship use given that no information had been provided relating to how such a facility would meet the needs of the community.

Information provided as part of Community Location Plan states that the majority of the ACWA members are residents of the City of Swan and approximately 81% of these members are located within 6 kilometres of the site, with a significant proportion (57%) of these members located in the Bennett Springs locality within 4km of Lot 613 (No.32) Dulwich Street.

While there doesn’t appear to be a need for such a facility within the immediate community that reside on Dulwich Street, the subject site is closely located to the sizable community in the residential component of Bennett Springs and is ideally placed to service the growing Dayton community. It should also be noted that the subject lot and the surrounding properties are zoned ‘Urban Deferred’ under the Metropolitan Region Scheme and accordingly, have been identified as suitable for future residential development pending the satisfaction of certain requirements prior to the Western Australian Planning Commission agreeing to lift urban deferred zoning. In light of the above, the information provided by the applicant is considered to adequately demonstrate the need for such a facility in the Bennett Springs community and adjoining localities.

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OPTIONS AND IMPLICATIONS

Option 1: Council may refuse the revised proposal for the proposed Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613 (No.32) Dulwich Street, Bennett Springs as depicted on the plans dated 17 April 2015 and revised site plan dated 23 December 2015 on the basis that it does not meet the objectives of the General Rural zone as outlined in Clause 4.2.23 of the City’s Local Planning Scheme No.17.

Implications: If aggrieved with Council’s decision, the matter will be referred to a full hearing and the City will have to defend the decision to refuse the revised proposal for the proposed change of use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’

This is not the recommended option.

Option 2:

1) Council may resolve to grant planning approval for a Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613, (No.32) Dulwich Street Bennett Springs subject to the following conditions:

1. This approval is for ‘Community Purpose’ and ‘Place of Worship’ as defined in the City of Swan Local Planning Scheme No. 17 and the subject land may not be used for any other use without the prior approval of the City.

2. A total of 31 parking bays shall be provided, each measuring 5.5 x 2.5 metres, clearly marked on the ground and served by a 6m paved accessway. Where the accessway abuts a building or other barrier, a minimum width of 6.5 metres is required. Disabled bays to comply with Australian Standard 2890.6.

3. The internal driveway is to be widened to a minimum dimension of 6m to facilitate two way vehicle access. Details of the modified internal driveway are to be submitted to the City prior to the commencement of approved development.

4. Vehicle access onto the site shall be restricted to that shown on the approved site plan.

5. All pavement on the site must be capable of accepting anticipated loadings (including access ways, parking areas, storage and hard stands). The City will not accept any responsibility for subsequent failure of any pavement.

6. Vehicle parking areas, access and circulation must be sealed, kerbed, drained and maintained to the satisfaction of the City in accordance with the approved plans.

7. All stormwater is to be collected and contained onsite. No stormwater is to be discharged from the property onto other land or reserves. Stormwater drainage plans are to be included at submission of Building Permit application.

8. All crossovers must be built and maintained in accordance with the City’s specifications.

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

10. Use of the site for the purpose approved shall not commence until an Occupancy Permit is issued.

11. Provision must be made for access and facilities for use by people with disabilities in accordance with provisions of the Building Code of Australia and AS 1428.1

12. The use of the site for ceremonies and functions must be for members of the Ahlulbuyt Community of Western Australia only and shall not be leased out to external communities or groups.

13. A maximum of 80 Persons shall occupy the approved ‘Community Purpose’ and ‘Place of Worship’ and any given time.

14. The community garden depicted on the revised site plan dated 23 December 2015 shall be maintained to the satisfaction of the City.

15. A notification, pursuant to Section 165 of the Planning And Development Act 2005 is to be placed on the certificate of title of title of the lot advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:

“This lot is in close proximity to an existing poultry farm and may be adversely affected by virtue of odour, noise, dust and/or light emissions from that land use.”

16. Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further of the City.

2) Advise the State Administrative Tribunal and submitters accordingly.

Implications: This option would mean that the applicant would be able to use Lot 613, (No.32) Dulwich Street Bennet Springs for a ‘Community Purpose’ and ‘Place of Worship’ subject to conditions.

This is the recommended option.

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CONCLUSION

Council at the Ordinary Council Meeting held on 23 September 2015 (Item 15.8 refers) resolved to refuse to grant planning approval for a Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at lot 613, No.32 Dulwich Street Bennett Springs because the proposed development was considered to not meet the objectives of the General rural zone as outlined in Clause 4.2.23 of the City of Swan Local Planning Scheme No. 17.

In view of Council’s decision to refuse the applicant applied for a review of Council’s decision under section 252(1) of the Planning and Development Act 2005 to the State Administrative Tribunal. Following Mediation undertaken at the State Administrative Tribunal between the City and applicant, the State Administrative Tribunal invited the City to reconsider its decision pursuant to section s.31 of the State Administrative Tribunal Act 2004.

The subject is Lot is zoned ‘General Rural’ and has a lot area of 2.7315 ha. The use classes ‘Community Purpose’ and ‘Place of Worship’ are discretionary uses in General Rural zone.

The applicant has provided revised information in the form of a ‘Community Location Plan’ and a revised site plan showing a proposed 60.72m2 community garden located adjacent to the existing dwelling. The purpose of this revised information is to demonstrate that the proposed development complies with Objectives a), b) and c) of the General Rural zone.

The community location plan indicates that the majority of the Ahlulbuyt Community of Western Australia is located within 6 kilometres of the subject site and the proposed development does serve the community of Bennett Springs and adjoining localities. The proposed community garden as depicted on the revised site plan also demonstrates compliance with Objective a) and part of Objective c) as it can be seen as utilising the land for productive rural uses which may contribute to the economic base of the region.

In light of the above, City staff are satisfied with the revised proposal and accordingly, approval is recommended.

ATTACHMENTS

Arial Plan

Site Plan

Supplementary information provided by the applicant (Revised site plan and ‘Community Location Plan’)

Plan refused at Ordinary Council Meeting held on 23 September 2015.

STRATEGIC IMPLICATIONS

Nil

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STATUTORY IMPLICATIONS

Planning and Development Act 2005

Local Planning Scheme No. 17

State Administrative Tribunal Act 2004

FINANCIAL IMPLICATIONS

Nil

VOTING REQUIREMENTS

Simple majority

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RECOMMENDATION

That the Council resolve to:

1) Grant planning approval for a Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613, (No. 32) Dulwich Street, Bennett Springs subject to the following conditions:

1. This approval is for "Community Purpose" and "Place of Worship" as defined in the City of Swan Local Planning Scheme No. 17 and the subject land may not be used for any other use without the prior approval of the City.












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2) Advise the State Administrative Tribunal, the applicant and submitters of Council’s decision accordingly.

MOTION that the Council resolve to

1) Refuse the revised proposal for the proposed Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613 (No.32) Dulwich Street, Bennett Springs as depicted on the plans dated 17 April 2015 and revised site plan dated 23 December 2015 for the following reason:

a) It does not meet the objectives of the General Rural zone as outlined in Clause 4.2.23 of the City’s Local Planning Scheme No.17.

(Cr Henderson -)

MOTION LAPSED due to the lack of a seconder.

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MOTION that the Council resolve to:

1) Grant planning approval for a Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613, (No.32) Dulwich Street Bennett Springs subject to the following conditions:














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2) Note that the Council is not of the view that the provision of a "community garden" of approximately 60m2 fulfils objective a) of the General Rural zone where such objective should be clearly understood to refer to broad scale agricultural production.


(Cr Lucas – Cr McNamara)

Cr Haynes left the Chamber at 8.05pm.

Cr Haynes entered the Chamber at 8.07pm.

RESOLVED (10/4) TO:

1) Grant planning approval for a Change of Use from ‘Single House’ to ‘Community Purpose’ and ‘Place of Worship’ at Lot 613, (No.32) Dulwich Street Bennett Springs subject to the following conditions:





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2) Note that the Council is not of the view that the provision of a "community garden" of approximately 60m2 fulfils objective a) of the General Rural zone where such objective should be clearly understood to refer to broad scale agricultural production.


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For: Crs Bailey, Elliott, Färdig, Johnson, Kovalevs, Lucas, McDonnell, McNamara, Parasiliti and Wainwright

Against: Cr Haynes, Henderson, McCullough and Williams

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State Administrative Tribunal Review and Reconsideration - … · 2016-02-12 · ordinary meeting...

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