ordinary meeting of council 15 august 2012 - swan.wa.gov.au · zoned swan valley rural under the...

Ordinary Meeting of Council

15 August 2012

3.3 APPLICATION FOR RETROSPECTIVE APPROVAL OF COMMERCIAL

VEHICLE PARKING (2) - LOT 92 (29) TOMLIN STREET WEST SWAN

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

Disclosure of Interest: Nil

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• The owner of Lot 92 (29) Tomlin Street, West Swan has applied for

Retrospective Approval to park two (2) Commercial Vehicles and two (2)

trailers.

• The subject site is zoned Swan Valley Rural under the City's Local Planning

Scheme and is 3948m2 in area.

• In accordance with Schedule 14 of the Local Planning Scheme No.17 (LPS17),

the zoning and lot size of the subject property permits a maximum of one (1)

commercial vehicle and one (1) trailer.

• Council may vary the maximum number of motorised vehicles by a maximum

of one commercial vehicle provided that in the opinion of council the additional

vehicle satisfies clause 5.10.6 a) i),ii) and iii) of the Local Planning Scheme No

17.

• In accordance with 5.10.6 b) Council may vary the maximum number of

trailers designed to be attached to a motorised vehicle if Council is of the

opinion that the additional trailer satisfies 5.10.6 b) i),ii) iii).

• The proposal was advertised to adjoining owners who may be potentially

affected. A total of eight submissions were received, with eight (8) objections

citing concern with adverse impact of noise, dust and fumes as well as impact

on the safety and general character of the area.

• The proposal is considered to satisfy the Scheme requirements for visual

screening. Subject to conditions mitigating against dust and limiting hours of

operation subject to satisfactory demonstration of compliance with the noise

regulations, the proposal will also be consistent with the character and amenity

of the locality.

It is recommended that the Council grant retrospective approval for the parking of two

(2) commercial vehicles and two (2) trailers on Lot 92 (No.29) Tomlin Street, West

Swan subject to conditions.


15 August 2012

3.3 Application For Retrospective Approval Of Commercial Vehicle Parking

(2) - Lot 92 (29) Tomlin Street WEST SWAN

AUTHORITY/DISCRETION

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

owner(s) is aggrieved with the decision of Council a right of appeal may exist in

accordance with Part 14 of the Planning and Development Act 2005.

Clause 5.10 of LPS17 governs the determination pertaining to parking of Commercial

Vehicles. The maximum number of vehicles which pay be parked or garaged on any lot

within a particular zone as part of an approval under clause 5.10.1 us set out in

Schedule 14 of LPS17.

The scope of planning approval is set out in Clause 10.7 of the LPS17.

BACKGROUND

Applicant: Angelo and Loleta Paternostro

Owner: Angelo and Loleta Paternostro

Zoning: TPS - Swan Valley Rural (Area B)

MRS - Rural

Strategy/Policy: Nil

Development Scheme: Local Planning Scheme No.17

Existing Land Use: Single House

Lot Size: 3948m²

Use Class: Single House

DETAILS OF THE PROPOSAL

The applicant is seeking retrospective approval for the parking of two (2) 13.5 tonne

commercial vehicles and two (2) trailers on the property. The vehicles are proposed to

be parked within the boundaries of the property and are partially screened from the

street. The applicant has indicated that the vehicles leave the property at approximately

5.00am-6.30pm in the morning and return to the property between 6.30 and 8.30pm in

the evening.

DESCRIPTION OF SITE

The subject property is located on the corner of Victoria Road and Tomlin Street, West

Swan. The property is west of Bandyup Womens Prison and north east of the intersection

of West Swan Road and Reid Highway. The property has ingress from Victoria Road and

egress onto Tomlin Street. The property has two dwellings on the site with the smaller of

the two dwellings located on the corner of Tomlin Street and Victoria Road and the larger

dwelling is adjacent to Tomlin Street. The site also has several outbuildings and is

vegetated in some parts.


15 August 2012



SITE HISTORY/PREVIOUS APPROVALS

4674/1988 grouped dwelling (2) - application refused.

5303/1989 proposal residence - application refused.

P232300/1990 State Administrative Tribunal 09/01/1990 appeal upheld - grouped

dwelling (2)

12875/2000 Demolition of residence - application not required.

OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

P232300/2003 Shed, approved.

PUBLIC CONSULTATION

The application was advertised to the surrounding landowners within close proximity to

the property seeking comment on the parking of the commercial vehicles. The proposal

was referred to the landowners of adjoining property due to the potential for noise

disturbance from the early morning starts and impact on amenity within the locality.

Seven (7) landowners provided objections in relation to the retrospective application and

one (1) non-objection was received.

The summary of objections is discussed in further detail in the report.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

Not applicable.

DETAILS

Zoning and Permissibility of Use

The parking of commercial vehicles, whilst governed by the limitations of clause 5.10

and Schedules 14 and 5 (exemptions) of the City's Local Planning Scheme No.17,

generally falls within the use class of "Single House" which is a "P" use within the "Swan

Valley Rural" zoning of the subject lot. Subject to the limitations expressed in Schedule

14, parking of Commercial Vehicles provided they do not adversely impact on amenity

by way of appearance, noise, odour or dust generation are considered to be acceptable

within rural zones.


15 August 2012



Amenity Impacts

The advertising of the application generated 8 objections, citing adverse impact of noise,

dust and fumes as well as impact on the safety and general character of the area. The

matter of cumulative impact from this proposal in conjunction with other approved

commercial vehicle parking along Victoria Street and potential further approvals was also

raised. In the matter of cumulative impacts it must be noted that it is purely speculative

to extrapolate out the potential impacts from commercial vehicle parking if every house

in the street had two trucks. Assessment of the merits of the subject application

considered of itself and without such speculation as to "worse case scenarios" leads to

the conclusion that the vehicle movements are well within the capacity of the road and

therefore do not represent an inordinate safety issue.

In terms of visual impact as contemplated by Clause 5.10.6 a) (ii), the two vehicles are

sufficiently screened from both Victoria Road, Tomlin Street and abutting properties

given their parking centrally with the property and the presence of obscuring structures

in the form of buildings, boundary fencing and vegetation.

Whilst the two trucks are parked on a compacted hardstand base as opposed to a sealed

surface, the matter of dust appears to be a concern of potential rather than actual

impact. Certainly any approval of the application can be conditioned to stipulate that the

parking of the vehicles shall not generate a dust nuisance. The City will have power to

require the applicant to take action to mitigate against dust - dewatering, sealing etc

should dust complaints arise.

In the matter of noise, it need be noted that noise generated by vehicles on the road are

not regulated by the Environmental Protection (Noise) Regulations 1997. Noise impact is

measured within the property. Given that vehicles only have a short distance to travel

within the property before accessing the road; it would seem that the potential for most

noise impact is through the start up and idling of vehicles prior to 7am in the morning.

To that end the most likely affected property is the abutting property to the west. City

Officer visited the subject lot approximately mid afternoon on a weekday to get an

indication as to how loud the idling vehicles are, particularly as might be heard from the

abutting property to the west. The conclusion was that the idling vehicle was barely

audible from a point at the property boundary in line with the house of the abutting

neighbour. Notwithstanding it is accepted that such idling may be more discernable in

the early morning and the City is obliged to consider the noise regulations for vehicles

activity of this type commencing before 7am. Accordingly, before permitting any vehicle

movements prior to 7am, the applicant will need to obtain an acoustic consultants report

that demonstrates compliance with the noise regulations. This is recommended to be

imposed as a condition of any approval.

On the basis of the above it is considered that the parking of the two vehicles can satisfy

the relevant scheme criteria pertaining to visual screening and preservation of the

character and amenity of the locality. Approval is therefore recommended.


15 August 2012



OPTIONS AND IMPLICATIONS

Option 1: The Council may resolve to grant retrospective approval for the proposed

Commercial Vehicle Parking and trailers subject to conditions.

This is the recommended option.

Implications This option will allow the proponent to park his vehicles at the property,

while taking into consideration the amenity impacts on the adjoining

neighbours.

Option 2: The Council may resolve to grant retrospective approval for the parking of

1 Truck and 1 Trailer as stipulated in Schedule 14 of the Local Planning

Scheme No 17.

Implications This option would mean the proponent would not be able to continue to

park two commercial vehicles and trailers on the property.

Option 3: The Council may resolve to refuse the proposed Commercial Vehicle

Parking on the basis that the noise impact on the surrounding

neighbourhood would be unacceptable.

This is not the recommended option.

Implications: This option would mean that the proponent would not be able to continue

parking his truck and trailer at the property.

If aggrieved with Council's decision, the applicant has the right of review

to the State Administrative Tribunal within 28 days of Council's decision.

CONCLUSION

The owner of Lot 92 (29) Tomlin Street, West Swan has applied for Retrospective

Approval to park two (2) Commercial Vehicles and two (2) trailers. The subject site is

zoned Swan Valley Rural under the City's Local Planning Scheme and is 3948m2 in area.

In accordance with Schedule 14 of the Local Planning Scheme No.17 (LPS17), the zoning

and lot size of the subject property permits a maximum of one (1) commercial vehicle

and one (1) trailer.

Council may vary the maximum number of motorised vehicles by a maximum of one

commercial vehicle provided that in the opinion of council the additional vehicle satisfies

clause 5.10.6 a) i),ii) and iii) of the Local Planning Scheme No 17.

In accordance with 5.10.6 b) Council may vary the maximum number of trailers

designed to be attached to a motorised vehicle if Council is of the opinion that the

additional trailer satisfies 5.10.6 b) i),ii) iii).


15 August 2012



The proposal was advertised to adjoining owners who may be potentially affected. A

total of eight submissions were received, with eight (8) objections citing concern with

adverse impact of noise, dust and fumes as well as impact on the safety and general

character of the area.

The proposal is considered to satisfy the Scheme requirements for visual screening.

Subject to conditions mitigating against dust and limiting hours of operation subject to

satisfactory demonstration of compliance with the noise regulations, the proposal will

also be consistent with the character and amenity of the locality.

ATTACHMENTS

- Locality Plan

- Site Plan

STRATEGIC IMPLICATIONS

Nil.

STATUTORY IMPLICATIONS

Local Planning Scheme No.17 Clause 5.10 and Schedule 14

FINANCIAL IMPLICATIONS

Nil.

VOTING REQUIREMENTS

Simple.

RECOMMENDATION

That the Council resolve to:

1) Grant retrospective approval to the application for the parking of two (2)

commercial vehicles and two (2) trailers at Lot 92 (No.29) Tomlin Street, West

Swan subject to the following conditions.


15 August 2012



a) This approval is only for the occupier of Lot 92 (29) Tomlin Street, West

Swan who must also be:

i. the owner of; or

ii. the driver of; or

iii. the proprietor of a business which owns or operates,

every commercial vehicle which is to be parked or garaged there.

b) This approval is for "Parking of Two Commercial Vehicles" (2 trucks and 2

trailers) as defined in the City's Local Planning Scheme No. 17 and the subject

land may not be used for any other use without the prior approval of the City.

c) No vehicles movements are to occur prior to 7am unless the applicant has

submitted an acoustical report to Health Services which demonstrates that

noise emissions will be in compliance with the Environmental Protection

(Noise) Regulations 1997.

d) Vehicle movements to and from the property are to be in forward gear.

e) Vehicle access onto the subject lot shall be restricted to that shown on the

approved plan

f) Parking of the approved commercial vehicle(s) and trailer(s) is restricted to

that shown on the approved plan.

g) The approved commercial vehicle(s) and trailer(s) must be parked within the

titled property boundaries at all times when at the subject lot. The vehicle(s)

and trailer(s) may not be parked on the City's verge at any time.

h) Maintenance works to the approved commercial vehicle(s) and trailer(s) must

not be undertaken prior to 7:00am and after 7.00pm.

i) Screening as shown and in accordance with the approved plans must be

maintained thereafter.

j) Vehicles movements shall not generate a dust nuisance.

k) Any additional development, which is not in accordance with the application

(the subject of this approval) or any condition of approval, will require further

approval of the City.


15 August 2012



ADVICE NOTES

(i) Any planning approval granted for the parking of commercial vehicle is not an

approval for the vehicle to use the road network or for any other purpose.

Applicants with Restricted Access Vehicles (RAVs) should seek a separate

approval from the relevant authority (MRWA) for the operation of these

vehicles within the road network. It is the responsibility of the owner to

obtain the necessary permit which is separate from any Council approval

under its Planning Scheme for the parking of a commercial vehicle.

(ii) This is a Development Approval of the City of Swan under its Local Planning

Scheme No. 17. It is not a building permit or an approval to commence or

carry out development under any other law. It is the responsibility of the

applicant to obtain any other necessary approvals, consents, permits and

licenses required under any other law, and to commence and carry out

development in accordance with all relevant laws.

(iii) Development may be carried out only in accordance with the terms of the

application as approved herein and any approved plan.

(iv) This approval is not an authority to ignore any constraint to development on

the land, which may exist through contract or on title, such as an easement

or restrictive covenant. It is the responsibility of the applicant and not the

City to investigate any such constraints before commencing development.

This approval will not necessarily have regard to any such constraint to

development, regardless of whether or not it has been drawn to the City’s

attention.

(v) The noise generated by activities on-site, including machinery motors or

vehicles is not to exceed the levels as set out under the Environmental

Protection (Noise) Regulations 1997.

All development works are to be carried out in accordance with control of

noise practices set out in Section 6 of AS 2436-1981 or the equivalent current

Australian Standard.

No works shall commence prior to 7.00 am without the City’s approval.

(vi) The carrying on of the development must not cause a dust nuisance to

neighbours. Where appropriate such measures as installation of sprinklers,

use of water tanks, mulching or other land management systems should be

installed or implemented to prevent or control dust nuisance, and such

measures shall be installed or implemented within the time and in the

manner directed by the City’s Principal Environmental Health Officer if it is

considered that a dust nuisance exists.


15 August 2012

MOTION that the Council resolve to:

1) Request the Executive Manager Planning and Development to have the City's

Environmental Health staff undertake a site visit and measurement of the noise

emitted by the operation of the commercial vehicles at the subject premises to

determine whether the noise emitted by those vehicles complies with the

Environmental Protection (Noise) Regulations 1997.

2) That, where the results of the investigations of the City's Environmental Health

staff have determined that noise emitted from the commercial vehicles is

compliant with the Environmental Protection (Noise) Regulations 1997, to

delegate to the Principal Planner the authority to grant retrospective approval to

the application for the parking of two (2) commercial vehicles and two (2) trailers

at Lot 92 (No.29) Tomlin Street, West Swan, subject to the conditions (a) to (k)

contained in the staff recommendation but with the deletion of condition (c) and

with the associated advice notes.

3) That, where the results of the investigations of the City's Environmental Health

staff have determined that noise emitted from the commercial vehicles is not

compliant with the Environmental Protection (Noise) Regulations 1997, the

application is to be referred back to Council for determination.

4) Record that the reason for changing the staff recommendation is that a

conditional approval that restricts the hours of operation of the commercial

vehicles is a restriction tantamount to a refusal.

(Cr Bailey - Cr Färdig)

PROPOSED AMENDMENT TO THE MOTION

1) Request the Executive Manager Planning and Development to have the City's

Environmental Health staff undertake a site visit and measurement of the noise

emitted by the operation of the commercial vehicles at the subject premises to

determine whether the noise emitted by those vehicles complies with the

Environmental Protection (Noise) Regulations 1997.

2) Conduct an independent safety audit report at the expense of the applicant.

3) That where the results of the investigations of the City's Environmental Health

Staff and the independent safety audit report have been completed, the

application is to be referred back to Council for determination.

4) Record that the reason for changing the staff recommendation is that a

conditional approval that restricts the hours of operation of the commercial

vehicles is a restriction tantamount to a refusal.

(Cr Marino -Cr McNamara)

FORESHADOWED MOTION

In the event of the motion being defeated, Cr Congerton foreshadowed that he would

move to defer the matter.

THE AMENDMENT WAS PUT TO THE VOTE AND LOST (7/7) WITH THE MAYOR

USING HIS CASTING VOTE IN THE NEGATIVE


15 August 2012

CR MARINO MOVED THAT THE SUBSTANTIVE MOTION NOW BE PUT

(Cr Marino - Cr Haynes)

RESOLVED UNANIMOUSLY THAT THE SUBSTANTIVE MOTION NOW BE PUT. THE

MOTION WAS LOST (2/12)

MOTION that Council resolve to:

1) Defer item for two council meetings in order that the officers are able to provide satisfactory

information in relation to the Environmental Health Act.

2) A safety audit shall be required for the subject site.

3) City officers arrange for a site visit to the applicant's site for the purpose of gathering

information in relation to site movements

(Cr Congerton - Cr Cheung)

RESOLVED (13/1) TO:

1) Defer item for two Council meetings in order that the officers are able to provide satisfactory

information in relation to the Environmental Health Act.

2) A safety audit shall be required for the subject site.

3) City officers arrange for a site visit to the applicant's site for the purpose of gathering

information in relation to site movements.

Cr Färdig requested it be recorded that he voted against the resolution.

ordinary meeting of council 15 august 2012 - swan.wa.gov.au · zoned swan valley rural under the...

Documents