CONFUSION hung in the air at last week’s City of Kalamunda meeting after the Mayor denied the City had made an appeal to the Supreme Court against a State Administrative Tribunal (SAT) decision.
On December 14 the SAT supported a proposal to allow a change of residence from ‘single house’ to ‘child care’ at 59 Coolinga Road Lesmurdie for use in conjunction with facilities associated with an existing child care premises on adjacent lot 61 Coolinga Road.
During the February annual electors meeting Pachamama Early Education and Childcare director Kristen McPhail told council the City would be responsible for paying the legal fees of themselves and Pachamama as a consequence of the appeal as required under the SAT act.
“The State Administrative Tribunal did determine that our application was very reasonable and ruled in our behalf,” she said.
“The City of Kalamunda would like to appeal that to the Supreme Court and the City will pay their own legal expenses as well.”
Mayor John Giardina said it was premature to comment on the issue.
“Council has yet to determine if we will appeal because that decision has not been made yet,” he said.
“But if we do, we have good reasons to appeal.”
Documents obtained by Echo News show the City’s lawyer signed the appeal on January 12, more than four weeks before the electors meeting.
According to the appeal notice, the City is appealing on the grounds that Pachamama’s approved SAT proposal was different to the proposal considered and refused by Council in May 2017.
It said the Tribunal “erred in law” by granting the development approval based on the fact it was an extension of the development being carried out of the adjoining property which “did not itself have development approval”.
The development approval at the centre of the debate is a current application with the City to retrospectively approve the number of children at the site from 10 to 43, bringing it in line with its current State approvals for the same issue.
According to Mrs McPhail, the City has been sitting on that proposal since June, and took six months to advertise for public comment, which ended this week, and that “the (SAT) application for 59 Coolinga Road has nothing to do with the (City) retrospective applications on 61 Coolinga Road”.
The SAT approval for child care use on lot 59 Coolinga Road was granted on the condition it would “commence only when and if the proposed application for use of No 61 was granted”.
Mrs McPhail said the business was already incurring “significant” legal costs as a consequence of the appeal lodged with the Supreme Court.
Mayor Giardina said fees would only be paid if Pachamama won, before being advised by chief executive officer Rhonda Hardy “not to proceed any further”.
After the meeting Mrs McPhail said she suspected problems at an administrative level were causing a breakdown of communication between council and the community.
“I know John knows it was appealed and I am disappointed he stated many times they had not appealed and seemed unaware of the legal cost situation,” she said.
Pachamama’s first application to the City to augment 59 Coolinga Road with the existing child care facilities at 61 Coolinga Road was deferred in March for further information only to be rejected when it returned to council in May.
Size, location, noise, traffic and facilities considered to be inconsistent with “orderly and proper planning” were listed as reasons for the refusal.
The SAT approval, which cost Pachamama $120,000 in legal and planning costs, said from “consideration of expert evidence” it found the “proposed use would have an acceptable impact on local traffic and that the impact of noise would be reasonable subject to implementation to conditions” and satisfied “most requirements of the City’s child care policy”.
At full occupancy the addition to the premise would cater for eight babies during daytime hours and 30 school-age children for after school care.
Mrs McPhail said Pachamama wanted to extend its existing premises onto its newly bought adjacent property to meet community demand.
“We are the only independent child care centre in Lesmurdie, servicing seven local primary schools,” she said.
“We have 100 families on our wait-list needing long-day and before and after school care and we get two to three more applications every week.”
The change of use does not affect the residential status of the property, if the property is sold the ‘child care’ use reverts to ‘single house’ and remains residential.
By Claire Ottaviano