A.C.N. 605 729 995 P/L and CITY OF KALAMUNDA
[2023] WASAT 65
•18 JULY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: A.C.N. 605 729 995 P/L and CITY OF KALAMUNDA [2023] WASAT 65
MEMBER: MR R POVEY, MEMBER
HEARD: 1 - 3 MAY 2023
DELIVERED : 18 JULY 2023
FILE NO/S: DR 260 of 2021
BETWEEN: A.C.N. 605 729 995 P/L
Applicant
AND
CITY OF KALAMUNDA
Respondent
Catchwords:
Town planning - Development application - Refusal - Garden Centre and Caretakers Dwelling - Land use classification - Caretakers Dwelling or Single House - Amenity - Compatibility in its context - Low scale - Net lettable area - Car parking - Orderly and proper planning
Legislation:
Shire of Kalamunda Local Planning Scheme No 3, cl 1.6, cl 4.2.2, cl 5.5, cl 5.5.1, cl 5.5.2, cl 5.5.3, cl 5.5.3 a), cl 5.5.3 b), cl 5.7, cl 5.7.1, cl 5.7.2, cl 5.13, cl 5.13.2, cl 5.13.2 b), cl 5.13.2 c), cl 5.13.2(h), cl 5.13.2(h)(i), cl 10.2, Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 61, cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(c), cl 67(2)(fa), cl 67(2)(m), cl 67(2)(n), cl 67(2)(y), cl 75(2)
Planning and Development Act 2005 (WA), s 241(1), s 242, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 18, s 24, s 27, s 27(1), s 27(2), s 31(1), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 7.3 Residential Design Codes Volume 1, Appendix 1
Result:
Application allowed
Decision of respondent set aside and a decision substituted
Category: B
Representation:
Counsel:
| Applicant | : | Ms B Moharich |
| Respondent | : | Mr J Skinner |
Solicitors:
| Applicant | : | Moharich & More |
| Respondent | : | Thomson Geer - Perth |
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125
Brikmakers (A Division of BGC (Australia) Pty Ltd) and City of Swan [2021] WASAT 66
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mivianjama Pty Ltd and Shire of Mundaring [2022] WASAT 3
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395
SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138 (2003) 35 SR (WA) 32
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153
Warr and Town of Cambridge [2020] WASAT 126
Woolworths Ltd v City of Joondalup [2009] WASAT 41; (2009) SR (WA) 38
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This decision deals with an application for review made under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for the review of the City of Kalamunda's (respondent or City) refusal to grant development approval for a 'garden centre' and 'caretakers dwelling'[1] (proposed development) at No 720 (Lot 150), Welshpool Road East, Wattle Grove (subject site). A.C.N. 605 729 995 Pty Ltd (applicant) seeks development approval for the proposed development.
[1] See [22]-[31] for consideration of land use classification.
In these reasons, I will firstly describe the Tribunal's review jurisdiction and the conduct of the proceedings and witness evidence. Then I will describe the proposed development, the subject site, the planning framework and summarise the procedural history. It is necessary, in this case, to then consider and determine the land use classification of the proposed development. Finally, I will set out, and then consider and determine, the four issues that arise in this proceeding.
For the reasons given below, I have determined that 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to approve the proposed development, subject to conditions.
The Tribunal's review jurisdiction
The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27]-[30] and, for completeness, is set out below:[2]
27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[3]
28The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[4]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[5] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[6] The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[7]
30The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[8] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
Conduct of the proceedings and witness evidence
[2] M Barton, M Povey and SSM Curry.
[3] SAT Act, s 18.
[4] SAT Act, s 27.
[5] SAT Act, s 32(2)(a).
[6] SAT Act, s 32(1).
[7] SAT Act, s 27(1).
[8] SAT Act, s 32(2)(b).
Each party filed and gave to the other party a Statement of Issues, Facts and Contentions (SIFC). The respondent filed a bundle of documents under s 24 of the SAT Act. The applicant also filed a bundle of documents.
The final hearing (hearing) was conducted from 1 to 3 May 2023 and commenced with a view which included the subject site and the adjoining site at No 740 Welshpool Road East (No 740). The view also included Welshpool Road East (in the vicinity of the subject site) in which developments on both sides of the road were observed, as was the proximity of the intersection of Tonkin Highway, 230 metres to the west of the subject site.
At the hearing, I heard evidence from two town planning experts, Mr Reegan Cake, a town planning consultant with Dynamic Planning and Developments Pty Ltd, called on behalf of the respondent and Mr Henry Dykstra, a town planning consultant and executive director of Harley Dykstra Pty Ltd, called on behalf of the applicant. Mr Cake and Mr Dykstra also filed witness statements with the Tribunal.
I also received evidence from two other expert witnesses. Mr Dale Newsome, an environmental scientist and senior principal and director of Western Australian Environmental Approvals Pty Ltd provided expert environmental evidence on behalf of the respondent. Mr Enzo Biagioni-Froudist, a civil engineer and Principal - Civil with Peritas Consulting Pty Ltd gave expert engineering evidence on behalf of the applicant in respect to drainage design. Both Mr Newsome and Mr BiagioniFroudist filed witness statements and were not required to attend the hearing.
Finally, a witness statement was filed from Mrs Theresa Miller, the owner of No 740, the neighbour to the south-east. At the hearing, Ms Moharich, counsel for the applicant, raised objection to certain parts of this witness statement. Following conferral with Mr Skinner, counsel for the respondent, the parties agreed the redactions[9] and a redacted witness statement was admitted into evidence.[10] Mrs Miller was not required to attend the hearing.
Submission made under s 242 of the PD Act
[9] ts 58 and ts 60, 2 May 2023.
[10] Exhibit 20, Witness Statement of Theresa Miller. See also ts 156-158, 2 May 2023.
On 12 April 2023, the Tribunal made orders permitting Ms Theresa Miller[11] and Mr James Miller to make a written submission pursuant to s 242 of the PD Act on behalf of the owner of No 740 (Miller's submission). The Tribunal's order specified that the submission must not stray into topics that are not before the Tribunal.
[11] Ms Theresa Miller is the daughter of the landowner of No 740 Welshpool Road East and has the same first and family name as her mother.
At the hearing, Ms Moharich raised objection to certain content of the Miller's submission which she submits stray into topics not before the Tribunal. At the hearing I invited oral submissions from Mr Miller[12] and from Mr Skinner, addressing the objections. After considering the submissions, I determined the Miller's submission should be redacted because certain content, identified in my oral determination, stray into topics not before the Tribunal.[13] I will return to consider the Miller's submission later.[14]
The proposed development
[12] Ms Theresa Miller was unable to attend the hearing.
[13] ts 150-156, 2 May 2023. The Tribunal's orders, dated 3 May 2023, provided for a transcript of this determination to be provided to Mr James Miller and Ms Theresa Miller. The Miller's submission is Exhibit 19.
[14] See [56]-[61] and [63]-[69].
The proposed development seeks approval for a 'garden centre' and 'caretakers dwelling' located in the front portion of the subject site and involves:[15]
[15] Respondent's SIFC, paras 10-11, Exhibit 2.
1)Operating hours of 7.00 am to 5.00 pm, Monday to Saturday and 8.00 am to 5.00 pm on Sundays and public holidays.
2)Up to eight staff.
3)Open air displays which include approximately:
a)500m2 for limestone blocks, slabs and other concrete products;
b)475m2 and 275m2 separate areas for pots and water features;[16]
[16] The amended plans, dated 3 May 2023, reduce the area of the 'Pot and Water Feature Display' in the former stables building from 416m2 to 275m2. See Annexure B and [13].
c)236m2 for pots and nursery sales area; and
d)435m2 for bagged products sales.
4)Four separate areas of landscape supplies storage bins of 240m2, 528m2, 672m2 and 1247m2.
5)A storage shed within an existing outbuilding.
6)A checkout office.
7)A total of 59 car parking bays, with a 49 bay car parking area within the setback area fronting Welshpool Road East (with associated landscaping) and a separate additional 10 car parking bays for staff within the garden centre.
8)Trailer parking (trailers for use by customers) within the garden centre.
9)A grassed overflow car parking area at the rear of the garden centre development in the event additional car parking is required on occasion.
10)A new crossover to Welshpool Road East configured and signed to permit left-in and left-out traffic movements only. A left turn slip lane running 125 metres along Welshpool Road East up to the new crossover is proposed, which incorporates relocation of the existing bus stop. The existing crossover is to be removed.[17]
11)A drainage basin adjacent to Welshpool Road East incorporating a rain garden component.
12)The retention of the existing dwelling proposed to be used as a 'caretakers dwelling'.[18]
13)The rear portion of the site is not proposed to be used for 'garden centre' purposes.[19] This rear portion has an area of 1.65 hectares (approximately 42% of the subject site) and the proposed garden centre use is setback 150 metres from the rear boundary.
14)A portion of this rear area not being developed includes Yule Brook, and the areas adjacent to Yule Brook are to be rehabilitated with planting and landscaping.
[17] See also Respondent's SIFC, para 13, Exhibit 2.
[18] See [22]-[31] for consideration of land use classification.
[19] ts 149, 2 May 2023 and see amended plans, 3 May 2023, at Annexure B.
At the hearing, the parties agreed that modifications to the floor plans could be made to reduce the net lettable area (NLA) from 450m2 to 350m2 because the applicant now identifies a need to demolish a part of the existing stables building which was to be used for 'pot and water feature display'.[20] At the conclusion of the hearing, the Tribunal granted leave for the applicant to file amended floor plans (amended plans) and on 3 May 2023 (the same day the hearing concluded) the applicant filed with the Tribunal (and provided to the respondent) the amended plans which it relies on.[21]
Subject site
[20] ts 62-69, 2 May 2023. This amendment also reduces the display and sales area by 141m2 and this reduction is considered in the car parking calculations.
[21] The amended plans dated 3 May 2023 are at Annexure B.
The subject site is located on the northern side of Welshpool Road East, approximately 230 metres east of the Tonkin Highway intersection and is more particularly known as Lot 150 on Plan 3380 being the whole of the land comprised in Certificate of Title Volume 1613 and Folio 607 and is approximately 3.912 hectares in area. The subject site faces Welshpool Road East, with a road frontage of 129 metres. It is currently developed with a single dwelling, stables and an associated outbuilding which reflect its former semi-rural lifestyle use. At the rear (in the north-west corner) the subject site is traversed by Yule Brook, just downstream from where Crystal Brook converges with Yule Brook.[22]
[22] Respondent's SIFC, para 9(e), Exhibit 2.
The subject site is zoned 'Rural' under the Metropolitan Region Scheme (MRS) and 'Rural Composite' under the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3).
Planning framework
The relevant planning framework which I have considered in determining the application includes:
a)MRS;
b)LPS 3, which incorporates the Deemed Provisions[23] and includes the relevant matters under cl 67(2) of Sch 2;
c)State Planning Policy 2.5 Rural Planning (SPP 2.5);
d)State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7);
e)State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes);
f)Kalamunda Local Planning Strategy (LP Strategy);
g)Western Australian Planning Commission North-East SubRegional Planning Framework (NESRPF); and
h)City of Kalamunda Crystal Brook Concept Plan (CBCP).
Summary of procedural history
[23] Planning and Development (Local Planning Schemes) Regulations 2015 (WA)(LPS Regulations), Sch 2.
The following events have occurred with this application for review.
On 16 November 2020, the applicant applied for development approval for the proposed development. Following a request for further information, the application was resubmitted on 5 March 2021.
The proposed development was advertised from 24 March 2021 to 14 April 2021, which resulted in 13 submissions being received, all objecting. The objections raised concerns with respect to traffic impacts, particularly safety, excessive commercial intensification of the subject site and environmental impacts.[24] At the hearing, the respondent's contentions focused on commercial intensification, and not traffic safety or environmental considerations.[25]
[24] Respondent's SIFC, paras 14-15, Exhibit 2.
[25] See [34].
On 23 November 2021, the proposed development was considered at the City's Council meeting, where a decision was deferred. On 13 December 2021, the applicant lodged an application for review with the Tribunal on the basis that the application was deemed refused.[26] Following mediation at the Tribunal, the respondent was invited by the Tribunal, pursuant to s 31(1) of the SAT Act, to reconsider its decision. At the City's Council meeting on 13 December 2022 the respondent reconsidered its decision and refused to grant development approval for four reasons:[27]
1.The proposal will have an adverse impact on the landscape and environmental qualities of the land and is therefore contrary to the objectives of Clause 4.2 of Local Planning Scheme No.3.
2.The proposed development will have an unacceptable impact on the amenity of surrounding residents as a result of the land use and its potential to conflict with existing rural/residential land uses and the surrounding road network.
3.The likely effect of the development on the natural environment and water resources including incompatibility of the land use activity in close proximity of the site to the Greater Brixton Street Wetlands due to the potential risk for contamination to enter the ground water system from the goods stored on the site.
4.The City of Kalamunda - Crystal Brook Concept Plan (2020) contemplates an Urban Landscape at this location in the future and as such, the proposal is considered inconsistent with the Council's strategic intent for the area.
[26] Deemed refusal arises under cl 75(2) of the Deemed Provisions.
[27] Respondent's SIFC, para 18, Exhibit 2.
The proposed development (as amended)[28] is now the subject of consideration and determination in this review.
The classification of land uses of the proposed development
[28] By the amended plans dated 3 May 2023, at Annexure B.
Before turning to the issues for determination in this matter, it is necessary to consider and determine the classification of the land uses in the proposed development. Although not raised as a contention in the respondent's SIFC, in closing submissions Mr Skinner draws attention to the way 'caretakers dwelling' is defined in LPS 3 which he raises concern, requires it to be related to an industry use and further, no industry use is proposed in this case.[29] Caretakers dwelling is defined in LPS 3 as:[30]
… a dwelling on the same site as a building, operation or plant used for industry, and occupied by a supervisor of that building, operation or plant[.]
[29] ts 179, 3 May 2023.
[30] LPS 3, Sch 1; Respondent's s 24 Bundle Documents, document 4, Exhibit 3.
Ms Moharich submits 'caretakers dwelling' should not be considered in this way, essentially for two reasons. First, the definition of caretakers dwelling is adopted from the Model Scheme Text[31] and therefore, by inference, has a wider application and not be limited to a caretakers dwelling only being associated with an industry.[32] Second, she submits the wording of the definition refers to 'building', 'operation' or 'plant used for industry' which should be read separately.
[31] LPS Regulations, Sch 1, cl 38.
[32] ts 194, May 2023.
The Tribunal[33] recently considered a caretakers dwelling in Mivianjama Pty Ltd and Shire of Mundaring [2022] WASAT 3 (Mivianjama). I observe in Mivianjama at [66] the applicable definition of 'caretakers dwelling' in the Shire of Mundaring Local Planning Scheme No 4 does not include reference to industry. This omission indicates a caretakers dwelling can be associated with uses other than industry under that Scheme.
[33] M Barton and M Povey.
However, in this case, on the plain reading of the definition of caretakers dwelling in LPS 3 it is clear 'building', 'operation' or 'plant' are the aspects associated with an industry, and in my view, the definition requires a caretakers dwelling to be associated with such a use. In this case, as no industry forms part of the proposed development, a caretakers dwelling is, in my view, incapable of approval, notwithstanding it is a discretionary 'D' use in the Rural Composite zone of the Zoning Table (Table 1) of LPS 3.
During closing submissions, the parties considered alternatively that 'single house' may in fact be the correct land use classification for the existing dwelling and the parties accept it is necessary for me to determine the correct land use classification in this case.[34]
[34] ts 195-197, 3 May 2023. See Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125 at [16] and Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [23].
It is uncontroversial no modifications are proposed to the existing single house and that 'single house' is a permitted 'P' use in the Rural Composite zone and is defined in the R-Codes as:[35]
A dwelling standing wholly on its own green title or survey strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with area held in common property.
[35] R-Codes, Appendix 1.
'Dwelling' is defined in the R-Codes as:[36]
A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family.
[36] R-Codes, Appendix 1.
The parties agree that when considering the nature of the proposed development against the definition of single house, this land use is to continue. Given this, no further approval, in my view, is required for this aspect of the proposed development, which I find is correctly classified as 'single house' use under LPS 3.
The remaining land use component of the proposed development, which is intended to operate as an additional use on the subject site, is 'garden centre' and is defined in LPS 3 to mean:[37]
… premises used for the propagation, rearing and sale of plants, and the storage and sale of products associated with horticulture and gardens[.]
[37] Schedule 1, LPS 3; Respondent's s 24 Bundle of Documents, document 4, Exhibit 3.
There is no dispute, and I accept, the correct classification of this use is 'garden centre'. What follows in these reasons will focus on this aspect of the proposed development.
Issues for determination
Four issues arise for determination by the Tribunal.
1)Is the proposed development compatible with its setting and consistent with the amenity of the locality?[38]
2)Is the proposed development consistent with the aims and provisions of LPS 3?[39]
3)Is the proposed development consistent with the requirements of orderly and proper planning?
4)What is the correct and preferable determination of the proposed development under cl 67(2) of the Deemed Provisions:
a)having due regard to the consideration of the matters in Issues 1 to 3; and
b)where the proposed development does not comply with a requirement prescribed under LPS 3, necessitating an exercise of discretion, under cl 5.5?
[38] The parties identify Issue 1 as two separate issues. However, in my view, in this case they are most appropriately considered as one issue and covering cl 67(2)(m) and cl 67(2)(n) of the Deemed Provisions.
[39] The parties also identify the issue 'Has the proposed development been [sic] demonstrated that it is a use appropriate to the area and that the commercial activity will not have a detrimental impact on the surrounding area?' This wording is from cl 5.13 of LPS 3 and is therefore addressed as part of Issue 2.
I will consider the issues in turn.
One further issue was identified by the parties. This issue was, 'what would be the likely effect of the proposed development on the environment?'.[40] However, at the hearing, and after considering the expert evidence of Mr Newsome and Mr Biagioni-Froundist, the respondent concedes, and I accept, environmental considerations are not determinative in this case and could be addressed by conditions should the Tribunal determine to approve the proposed development.[41] Mr Newsome's evidence is the dust management response is considered appropriate for the type of facility and if managed appropriately is likely to manage risks for adjacent residential dwellings.[42] Similarly, in relation to stormwater, Mr Newsome accepts the proposed method of capture and storage is considered to be consistent with best practice.[43] At the hearing, the parties agreed the relevant without prejudice conditions to address environmental management matters.
Issue 1 - Is the proposed development compatible with its setting and consistent with the amenity of the locality?
[40] Identified in the Respondent's SIFC, paras 49-50, Exhibit 2.
[41] ts 29, 1 May 2023.
[42] Witness Statement of Dale Newsome, para 15.8, Exhibit 5.
[43] Witness Statement of Dale Newsome, para 16.9, Exhibit 5.
The impact of the proposed development on the amenity of the locality is a central consideration in Issue 1. Amenity is defined in cl 1 of the Deemed Provisions as follows:
means all those factors which combine to form the character of an area and include the present and likely future amenity.
As the Tribunal[44] has previously observed, the case authorities on evaluating amenity are well-known and settled. For many years the leading authority was Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) where the former Town Planning Appeal Tribunal (at [304]) set out a three-step test in terms of evaluating amenity. The relevant steps are:
1)establish the existing amenity in an objective sense;
2)evaluate the manner in which the proposed development will affect the existing amenity; and
3)assess the degree of impact on the locality.
[44] M Willey (as he then was) in John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] (Sunbay) Barker J generally endorsed the approach to amenity set out in Tempora with one exception as to the assessment of existing amenity, which his Honour identified can be informed by lay residents in addition to expert witnesses[45] and confirmed that an evaluation of amenity should take account of future amenity.[46] The need to consider future amenity is expressly recognised in the definition of amenity.
[45] See Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48].
[46] Sunbay at [22].
When considering this issue, it is also necessary to identify the extent of the relevant locality. When determining the locality, Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [42] states:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
Mr Cake's evidence usefully identifies a development setting[47] (or an immediate locality) and a broader locality,[48] which he considers to be the surrounding Rural Composite zoned land. Mr Dykstra does not identify the extent of the locality in his witness statement, but in oral evidence agrees with the extent identified by Mr Cake.[49]
[47] Witness Statement of Reegan Cake, para 42 and Figure 1, Exhibit 6.
[48] Witness Statement of Reegan Cake, para 48 and Figure 2, Exhibit 6.
[49] ts 81-83, 2 May 2023.
Considering the evidence of the planning experts and the principles in Ridgecity, the extent of the locality in this case, in my view, is the area bounded by Tonkin Highway (to the west), the Hartfield Park bushland and Lot 102 Welshpool Road East (Lot 102) and Lot 101 Welshpool Road East (Lot 101) (to the north), No 740 (to the south-east) and (to the south) the lots located on the south side of Welshpool Road East from Tonkin Highway to Crystal Brook Road/Brentwood Road.[50]
Existing amenity of the locality
[50] The extent of the locality is largely reflected in Figure 1 of the Witness Statement of Reegan Cake, Exhibit 6, with the addition of Lot 101 and Lot 102 and of the Hartfield Park bushland.
Following the steps set out above,[51] it is necessary to first establish existing amenity of the locality in an objective sense. Mr Cake's evidence, which I accept, is that the amenity of the immediate locality is of rural properties of varying sizes with the predominant use of land being commercial businesses.[52]
[51] At [36].
[52] Witness Statement of Reegan Cake, para 50, Exhibit 6.
The immediate locality accommodates a range of uses which include:
1)A dwelling and equestrian training track (at No 740) to the south-east of the subject site.
2)A dog kennel (Swan Animal Haven) and storage on the two lots to the immediate west of the subject site.
3)Hartfield Park bushland to the north-west (which is gazetted as Bush Forever Site No 320).
4)On the southern side of Welshpool Road East (opposite the subject site) is:[53]
a)Magic Garden Supplies (garden centre) at No 721 Welshpool Road East;
b)The Arbor Centre (garden centre) at No 731 Welshpool Road East; and
c)R M Smith & Sons, stockfeed business at 14 Brentwood Road.
[53] Applicant's SIFC in Reply, para 9, Exhibit 8.
The lots in the locality (except for Hartfield Park bushland) are also zoned 'Rural' under the MRS and 'Rural Composite' under LPS 3. Mr Cake says that beyond the properties listed above and those abutting the subject site, the broader area including those properties subject to a Rural Composite zoning can be characterised as small rural lots, sparse development and land uses of low intensity with landscape and environmental values being of particular significance.[54]
[54] Witness Statement of Reegan Cake, para 15, Exhibit 6.
Mr Dykstra's evidence is consistent with that of Mr Cake, however he provides further detail of four key factors which he considers, and I accept, contribute to the amenity of this immediate locality.[55] These are:
a)Welshpool Road East as a major and relatively busy and noisy traffic route (identified as Other Regional Road in the MRS).
b)Semi-rural lifestyle lots interspersed with low scale commercial land use activities.
c)A noticeable cluster of low scale commercial activities fronting Welshpool Road East between Tonkin Highway (an MRS Primary Regional Road) and Crystal Brook Road.
d)The vegetated reserved lands located generally to the north of the subject site.
[55] Witness Statement of Henry Dykstra, para 38, Exhibit 11.
I accept the evidence of the planning experts, that the elements detailed above constitute the existing amenity of the relevant locality.
How will the proposed development affect existing amenity?
Second, it is necessary to evaluate the way the proposed development will affect the existing amenity. Mr Cake's evidence is that he does not consider the proposed development to be dissimilar to the existing uses within the immediate locality. However, he says the scale is inconsistent with the existing uses, particularly on the north side of Welshpool Road East.[56] Mr Cake's evidence is that the larger scale uses are located on the southern side of Welshpool Road East and to the west of Brentwood Road.[57] I accept this is presently the case, however it is necessary for me to consider the proposed development in the context of the identified locality and to then consider its impact on that defined locality.
[56] Witness Statement of Reegan Cake, para 51, Exhibit 6.
[57] Witness Statement of Reegan Cake, para 43, Exhibit 6.
Mr Dykstra's evidence is that the immediate locality contains a clustering of commercial uses which includes a garden centre (Magic Garden Supplies), the Arbor Centre (an arboriculture business), an animal feed business (R M Smith & Sons), all opposite the subject site, and a kennels establishment immediately adjoining to the west. Mr Dykstra considers, and I accept, the section of Welshpool Road East in the locality is highly trafficked and quite noisy particularly in daylight hours when the proposed development will be operating.[58]
[58] Witness Statement of Henry Dykstra, paras 36-37, Exhibit 11.
Further, Mr Dykstra, in his witness statement, usefully provides an assessment of the impact the proposed development is likely to have considering each immediately adjoining property.[59] Mr Cake's evidence does not contain this detailed assessment. In my view, careful consideration of the impact of the proposed development on the adjoining properties is important to ultimately answer the question posed by this issue in this case. I will now consider each of these adjoining properties.
[59] Witness Statement of Henry Dykstra, para 43, Exhibit 11.
The adjoining kennels facility is located immediately to the west of the subject site and fronts Welshpool Road East (Lot 2). It has commercial and other structures immediately up to its eastern boundary with the subject site. The proposed development incorporates a drainage basin abutting this area of the kennels facility. I accept the evidence of Mr Dykstra that this will minimise the impact of the proposed development on the neighbouring kennels site.
The vacant lot (Lot 1), at the rear of the kennels site, also shares its eastern boundary with the subject site. Mr Dykstra says this site is used for a variety of storage purposes, including machinery, equipment and stockpiled fill. There is a 3 metre to 4 metre high earth bund surrounding this property (which was observed during the view) and Mr Dykstra says, and I accept, the activities of the proposed development will not be visible from this site.[60] As a result, the proposed development will not, in my view, have an impact on the amenity of this site.
[60] Witness Statement of Henry Dykstra, para 43(c), Exhibit 11.
Mr Dykstra identifies Lot 102 (to the rear of the subject site) is currently used as a rural lifestyle lot and for storage of disused equipment and building materials.[61] This lot also includes a portion of Yule Brook running through it. The proposed development is to occupy the front portion of the subject site and Mr Dykstra identifies there will be a 150 metre separation between the proposed garden centre activities and the adjoining lot to the rear.[62] Additionally, the proposed development includes the revegetation of both sides of Yule Brook within the subject site. This rehabilitation includes planting of trees and shrubs for approximately for one quarter of the common boundary with Lot 102.[63] This, in my view, will enhance the amenity at the interface with this adjoining lot and also with the adjoining Bush Forever site, the Hartfield Park bushland.
[61] Witness Statement of Henry Dykstra, para 43(d), Exhibit 11.
[62] Measured from the northern edge of the proposed grassed overflow car parking area.
[63] Respondent's s 24 Bundle of Documents, page 60, Exhibit 3.
No 740 adjoins the south-eastern boundary of the subject site. Mr Dykstra's evidence is this lot is used for rural lifestyle purposes and includes an associated horse trotting training track and some storage uses, including in proximity to the boundary of the subject site.[64] Mr Dykstra's evidence, which I accept, is that the residence on this property is positioned approximately 27.5 metres from the side boundary of the subject site and is set back a similar distance from Welshpool Road East. He says the trotting track facility (which is located at the rear behind the residence) has a large interface with Welshpool Road East, but the proposed development will have only a small interface with the trotting track. This is demonstrated on the site plan for the proposed development,[65] which shows the internal access road of the proposed development does not extend to abut the straight section of the existing adjoining trotting track (which runs along the eastern boundary of the subject site).
[64] Witness Statement of Henry Dykstra, para 43(e) and Annexure HD2 - Site visit photographs, photos 1116, Exhibit 11.
[65] Amended plan dated 3 May 2023 and is included as Annexure B.
The common boundary interface between the sites is proposed to be a 1.8 metre high chain mesh fence, set 2 metres within the subject site. However, the evidence of Mr Dykstra is that the fencing should be modified to be a Colorbond or timberlap fence and that the 2 metre strip be landscaped to ameliorate visual impact of the proposed development on this adjoining lot.[66] Mr Dykstra's evidence also is that, as part of the development application, an acoustic report has been provided and this demonstrates compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations).[67] I accept this is the case. Mr Cake considers that a solid fence will go some way to lessening the impact of the proposed development on No 740, but it will not remove the impact entirely, which he says is noise and visual impact, particularly of trucks.[68]
[66] Witness Statement of Henry Dykstra, para 43(g), Exhibit 11.
[67] Witness Statement of Henry Dykstra, para 43(f), Exhibit 11. The acoustic report, prepared by Herring Storer Acoustics, Respondent's s 24 Bundle of Documents, pages 178-198, Exhibit 3.
[68] ts 127, 2 May 2023.
Clauses 5.13.2 b) and c) of LPS 3 provide requirements for fencing in the Rural Composite zone. In particular clause 5.13.2 c) provides:[69]
The use of fibre cement sheeting, wooden pickets and metal sheeting as fencing material is not permitted, unless specifically approved by the local government.
[69] Respondent's s 24 Bundle of Documents, LPS 3, page 44, document 4, Exhibit 3.
At the hearing there was no submission from the respondent or evidence from the planning experts that the use of solid fencing (either timberlap or Colorbond sheeting) is in some way inappropriate in this locality. At the view, I observed the neighbouring kennels facility at Lot 2 (to the west) has existing solid fencing extending along a part of the common boundary with the subject site, near its frontage with Welshpool Road East. In my view, considering the context of the subject site, the installation of a length of solid fencing, accompanied with landscaping, is an appropriate treatment that will, on the evidence before me, satisfactorily ameliorate the visual amenity impact of the proposed development.[70]
Evidence of Mrs Miller and the Miller's submission
[70] This is also addressed in the findings to Issue 4 at [148].
Mrs Miller, with her family, runs a smallscale trotting horse training business at No 740 and resides at the property. Mrs Miller's evidence is that she wishes to maintain the family business at her property, and she raises amenity concerns relating to noise, dust and traffic and access to the subject site (which is proposed to be located adjoining her existing driveway).[71]
[71] Witness Statement of Theresa Miller as amended, page 1; pages 5-6, Exhibit 20.
I also received the Miller's submission, made under s 242 of the PD Act.[72] In terms of the amenity of the area (which includes the subject site), the submission identifies that over the years Mrs Miller and her family have witnessed the environmental degradation of the subject site and an increase in dust in and around Mrs Miller's home during strong winds which they say characterises the foothills area.
[72] Section 242 submission made on behalf of Mrs Theresa Miller by Theresa Miller and James Miller (as amended by the Tribunal), Exhibit 19.
The Miller's primary concern is that the proposed development would negatively impact their trotting horse training business and render it inoperable.[73] The Miller's submit the proposed development, will involve over 300 vehicle movements per day including, they submit, 70 heavy haulage vehicle movements, and this will have an adverse impact on the Millers' family horses, causing them to become anxious, skittish and unpredictable and this would render the horse training business unsafe and potentially inoperable.[74]
[73] Exhibit 19, page 3.
[74] Exhibit 19, page 7.
The Miller's submit the constant noise generated by vehicular traffic, machinery and loading/unloading of materials for 10 hours a day, 7 days a week will most definitely disrupt the rural amenity and ambience of Mrs Miller's home and jeopardise the viability of their small-scale horse training business.[75]
[75] Exhibit 19, page 13 and page 1.
Mrs Miller says she is aware of the risks of entering and exiting her property on a busy 80 kilometres road (Welshpool Road East) on a bend and close to a major intersection. The Miller's submit the proposed location of the driveway of the proposed development (which is to directly abut Mrs Miller's driveway) will compound her fears and anxieties about access to and from her own site.[76]
[76] Exhibit 10, page 18.
I will return to these concerns shortly, when considering the degree of impact the proposed development will have on the locality.[77]
Future amenity of the locality
[77] See [63]-[71].
Future amenity is a consideration contained in the definition of 'amenity'[78] and as identified in Sunbay, an evaluation of future amenity is a relevant consideration. In this case, the evidence of the planning experts, which I accept, is that there is no expectation the existing amenity and character will be modified significantly in the short-term. Mr Cake's says that under the North-East Sub-Regional Planning Framework[79] the immediate locality is to remain 'Rural' and there are no amendments to LPS 3 being considered.[80]
Assessment of the degree of impact the proposed development will have on the locality
[78] See [35].
[79] Respondent's s 24 Bundle of Documents, pages 569-662, Exhibit 3.
[80] Witness Statement of Reegan Cake, para 50, Exhibit 6.
Considering the evidence before me and the Miller's submission, the impact of the proposed development on the locality is, in my view, almost entirely confined to the interface between the subject site and the adjoining site to the south-east, No 740, owned and occupied by Mrs Miller.
The garden centre use does not extend the full length of the common boundary between the two properties and does not extend to the straight section of the trotting track on Mrs Miller's property which directly abuts the subject site. I accept the expert evidence of Mr Dykstra, that Welshpool Road East is highly trafficked[81] and noisy.[82] Considering the location of the trotting training track which immediately abuts Welshpool Road East for a long length of the track, I cannot conclude, on the evidence before me, that the proposed development is likely to have a detrimental impact on the trotting training activities given the locational context. Additionally, in my view, the inclusion of solid fencing will remove almost all of the visual connection between the garden centre use on the subject site and the horse training activities at No 740, and this also reduces the likelihood of horses at No 740 being impacted by the proposed development.
[81] In oral evidence, Mr Dykstra stated Welshpool Road East carries 17,650 vehicles a day, ts 83, 2 May 2023.
[82] Witness Statement of Henry Dykstra, para 38a, Exhibit 11.
Further, the location of the 49-bay car park for the proposed development at the front of the subject site means that most customer vehicles visiting the site will not need to access beyond this car park and consequently these vehicles will not impact the amenity of No 740. Also, while I accept there will be some truck traffic associated with the proposed development,[83] the acoustic assessment takes this into account, and indicates its operations can comply with the Noise Regulations. This assessment includes consideration of nearest residential location, being the neighbouring dwelling at No 740.[84]
[83] The Transport Impact Statement (TIS) indicates it is anticipated up to 35 trucks will attend the site each day (a total of 70 truck movements), Respondent's s 24 Bundle of Documents, page 137, Exhibit 3.
[84] Respondent's s 24 Bundle of Documents, pages 178-198, Exhibit 3.
In respect to concerns about dust, I accept the expert evidence of Mr Newsome, referred to earlier,[85] which is that dust concerns are capable of being managed, including, in his opinion, the risks for adjacent dwellings.
[85] See [34].
In Woolworths Ltd v City of Joondalup [2009] WASAT 41; (2009) SR (WA) 38 at [76] the Tribunal observed:
Naturally, in many cases such as the present one, residents' objections are based on an apprehension or fear of what may happen and those views are something which councils, when considering the matter, and this Tribunal on review, must try and balance on the evidence before it.
Considering the evidence of Mrs Miller and the Miller's submission against the evidence of the town planning experts, the environmental expert, and the acoustic report, together with the context of the subject site, I am unable to conclude the proposed development will have a detrimental impact on the existing horse training activities and the ongoing residential occupation at No 740. Further, when considering the amenity of this locality, which the planning experts agree is characterised by a range of commercial activities, the addition of the proposed development will not, in my view, be inconsistent with the level of amenity, including noise, that can reasonably be expected in this locality.[86]
[86] See St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 at [57].
For completeness, the Miller's identify in their submission,[87] and Mrs Miller in her evidence,[88] a concern as to traffic safety, particularly possible conflicts between the location of the proposed crossover of the proposed development which will abut the existing crossover at No 740. This aspect was not raised by the parties as an issue for determination by the Tribunal or as a contention in the respondent's SIFC. This is presumably because, having assessed technical engineering aspects of the development application, which includes the proposed access/egress arrangements, the respondent is satisfied it meets the necessary technical requirements and engineering standards. There is no expert evidence before me that provides a contrary view. Considering the location of the proposed crossover and its amenity impact on No 740, in my view the degree of impact is acceptable, particularly when considering the accompanying mitigating measure of a solid fence and landscaping which will significantly address concerns of visual amenity impact associated with the internal accessway of the proposed development.
Assessment of impact on landscape and environmental qualities
[87] Exhibit 19, pages 4 and 18.
[88] Exhibit 20, pages 3 and 5.
When considering amenity impact, it is necessary to consider the zone objective for the Rural Composite zone, because this requires consideration of whether the proposed development (a commercial use, 'garden centre') will adversely impact the landscape and environmental qualities of the area.[89] It is uncontroversial the proposed development will not adversely impact the environmental qualities of the area and the parties agree environmental management can be satisfactorily resolved by appropriate conditions addressing noise, dust and landscaping. The parties also agree stormwater from the proposed development will be diverted away from Yule Brook and captured in a detention basin located at the front of the subject site.
[89] The zone objective is set out in full at [80].
Considering the landscape qualities of the area, the proposed development will not, in my view, significantly change those qualities because it does not involve removal of vegetation from the site but involves replanting in the vicinity of Yule Brook as well as in the proposed car park located at the front of the site. Further, the existing buildings on the subject site are to be reused to accommodate the garden centre activities, which, in my view, will also assist to maintain the existing visual character of the subject site.
Mr Cake, in his evidence, asserts the proposed development has a much larger provision of formalised parking.[90] This car park is located adjacent to the front of the property facing Welshpool Road East. However, the front of the subject site presently has an open landscape character with little vegetation.[91] The location of the car park and associated trees and screening vegetation (and the use of this car park) is not inconsistent, in my view, with the existing landscape character of the subject site and of lots in the immediate locality, which include storage and car parking areas facing Welshpool Road East.[92]
Findings - Issue 1
[90] Witness Statement of Reegan Cake, para 44, Exhibit 6.
[91] Annexure HD2, Photo 1, Witness Statement of Henry Dykstra, Exhibit 11.
[92] Aerial Photograph of 720 Welshpool Road East Wattle Grove, Exhibit 12. This photograph shows the subject site in context with the surrounding lots.
The proposed development is, I find, compatible with its setting and consistent with the amenity of the locality for two reasons.
First, considering the amenity of the locality and the proposed land use, the proposed development is, I find, consistent with the current and future amenity of the locality. The LP Strategy includes a strategy that the Rural Composite zone is to be used for 'space extensive' uses.[93] The current amenity of the locality, including the immediate locality reflects this. The garden centre component of the proposed development, while having a modest NLA of 350m2, is a space extensive land use, covering approximately 20,000m2. It does not, unlike the larger garden centre on the opposite side of Welshpool Road East, cover the entirety of the subject site. Approximately 42% of the subject site will not be used for garden centre purposes.[94] Further, considering the appropriateness of this land use in the Rural Composite zone, the LP Strategy expressly acknowledges that 'typically the land use activities found in this area include garden centres and related horticultural suppliers'.[95]
[93] Respondent's s 24 Bundle of Documents, page 389, Exhibit 3.
[94] See also [103]-[105].
[95] Respondent's s 24 Bundle of Documents, page 486, Exhibit 3.
Second, considering the immediate setting, the proposed development will not have a discernible detrimental impact on the amenity of neighbouring properties. On the evidence before me, the proposed development has no detrimental impact on Lot 1 and Lot 2 (located to the west of the subject site) and also no detrimental impact on Lot 102 (located to the north of the subject site). The proposed development includes landscaping works to Yule Brook which will improve the amenity of this property and with the interface with the adjoining Bush Forever site, the Hartfield Park bushland.
The impact on No 740 (to the south-east of the subject site), on the evidence before me, is limited to visual amenity impact associated with vehicle and truck movements, and potentially noise and dust. Noise and dust control, I find on the evidence before me, can be satisfactorily addressed through the implementation of relevant management plans required by conditions of approval. In respect to the visual amenity impact, I find this can be satisfactorily addressed by a condition of approval requiring the installation of appropriate solid screen fencing and landscaping along the common boundary for the extent of the proposed garden centre use. Further, this visual screening will, in my view, significantly address the concerns about the disturbance of horses and trotting training activities and of residential amenity at No 740 caused by movement of vehicles (including trucks) and the day-to-day operating activities at the proposed development.
Issue 2 - Is the proposed development consistent with the aims and provisions of LPS 3?
The respondent contends that the proposed development fails to meet the objective and the requirements of the Rural Composite zone due to its excessive scale and intensity.[96] The applicant contends the proposed development does not significantly exceed the maximum NLA or have a detrimental impact on the surrounding area and is entirely appropriate given the surrounding land uses.[97]
[96] Respondent's SIFC, paras 42 and 37(b), Exhibit 2.
[97] Applicant's SIFC in Reply, para 37(b), Exhibit 8.
Table 1 sets out the relevant permissibility for various land uses in particular zones. For the 'Rural Composite' zone, Table 1 identifies 'garden centre' as an 'A' use. The Deemed Provisions[98] define a class A use in relation to a zone to mean:
… a use identified in the zoning table for this Scheme (regardless of the symbol used) as a use that is not permitted in the zone unless the local government has exercised its discretion by granting development approval after advertising the application in accordance with clause 64;
Relevant aims and provisions of LPS 3
[98] Deemed Provisions, cl 1.
The aims of LPS 3 are at cl 1.6 and set out in the evidence of Mr Cake.[99] While these are uncontroversial Mr Skinner, in opening submissions, identifies the relevant aims of LPS 3, in this case, as being:[100]
(a)To zone the Scheme area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the suitable provisions for the use of land within the Scheme area.
(b)To secure the amenity, health and convenience of the Scheme area and the residents thereof.
…
[99] Witness Statement of Reegan Cake, para 20, Exhibit 6.
[100] ts 23, 1 May 2023. This was not contradicted in the applicant's submissions or the evidence of Mr Dykstra.
The objective of the 'Rural Composite' zone is as follows:[101]
To provide for small semi-rural lots that can accommodate a limited range of rural and low scale commercial land uses in a manner that will not adversely affect the landscape and environmental qualities of the land are appropriate to the area.
[101] LPS 3, cl 4.2.2; Respondent's s 24 Bundle of Documents, document 4, Exhibit 3. The objective of the Rural Composite zone is considered further at [87]-[90].
Clause 5.13 of LPS 3 deals with the Rural Composite zone and relevant to this review provides:[102]
In this zone it is recognised that there is a mix of semi-rural and commercial land uses which the local government seeks to maintain as a balance in a rural setting. Commercial land uses within the zone will only be considered for approval when it has been demonstrated that the use is appropriate to the area and that the commercial activity will not have a detrimental impact on the surrounding area.
[102] Respondent's SIFC, para 24, Exhibit 2.
The parties agree the relevant land use and development provisions for the Rural Composite zone are set out in cl 5.13.2 as follows:[103]
The following provisions shall apply specifically to all land included in the Rural Composite Zone in addition to any provisions which are generally more applicable to the land under the Scheme.
…
h)Commercial development proposals will only be considered in accordance with clause 5.14 'Commercial Zones' of the Scheme. In addition, the following development requirements will apply:
(i)the maximum amount of net lettable area (NLA) is 300m2;
…
(iii)the use of land outside any building for the display, sale or storage of materials, goods or equipment, will require the prior approval of the local government[.]
[103] Respondent's SIFC, para 25, Exhibit 2 and Applicant's SIFC in reply, para 25, Exhibit 8.
NLA is defined in the Deemed Provisions and[104]
… means the area of all floors within the internal finished surfaces of permanent walls but does not include the following areas —
(a)stairs, toilets, cleaner's cupboards, lift shafts and motor rooms, escalators, tea rooms and plant rooms, and other service areas;
(b)lobbies between lifts facing other lifts serving the same floor;
(c)areas set aside as public space or thoroughfares and not for the exclusive use of occupiers of the floor or building;
(d)areas set aside for the provision of facilities or services to the floor or building where those facilities are not for the exclusive use of occupiers of the floor or building;
[104] Deemed Provisions, cl 1.
Clause 5.5 of LPS 3 provides for variations to site and development standards and requirements and this clause is set out and considered further at Issue 4.[105]
[105] See [132]-[149].
Clause 5.7 of LPS 3 contains provisions relating to car parking requirements. Clause 5.7.1 provides parking specifications and states in part:[106]
A person shall not develop or use any land or erect, use or adapt any building unless car parking bays as specified in Table 3 are provided and such bays are constructed and maintained in accordance with local government requirements[.]
[106] Respondent's SIFC, para 27, Exhibit 2.
Clause 5.7.2 of LPS 3 provides:
The local government may apply at its discretion, a greater or lesser requirement for car parking than that stipulated as the minimum requirement in Table 3, if in its opinion the proposed use is likely to demand a greater or lesser need for car parking bays having due regard to the scale and nature of the intended use or uses.
The parking requirements for the proposed development are in Table 3 of LPS 3. Relevantly, a garden centre has a car parking standard of two bays per 100m2 of display and sales area plus one bay per staff member. Prior to the amended plans, the total display and sales area was calculated to be 4,796m2. This requires 96 car bays under the car parking standard, with a further eight car bays for staff, bringing the total to 104 car bays to meet the LPS 3 parking standards.[107] As previously mentioned 59 car bays are proposed. With the amended plans, which reduces the display and sales area by 141m2, there is now a calculated variation of 43 car bays against LPS 3 requirements.[108] Nothing turns on this change.
The objective of the Rural Composite zone
[107] Respondent's s 24 Bundle of Documents, page 15, Exhibit 3.
[108] At [12]. The calculated car parking variation is based on the amended plans, dated 3 May 2023, at Annexure B.
In closing submissions, Mr Skinner submits there is a strong line of Tribunal decisions emphasising the importance of zone objectives.[109] Specifically, he cites Warr and Town of Cambridge [2020] WASAT 126 (Warr), WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 (WA Timber Supplies) and Brikmakers (A Division of BGC (Australia) Pty Ltd) and City of Swan [2021] WASAT 66 (Brikmakers). Zone objectives have the effect 'as if enacted by the [PD] Act'.[110] Zone objectives are to be read and applied in a broad fashion, consistent with its town planning purpose.[111]
[109] ts 185, 3 May 2023.
[110] Warr at [29] and Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; (2018) 232 LGERA 395 at [125] para 9.
[111] Warr at [68].
As the Tribunal also observed in Warr, 'whether a use is consistent or otherwise with the zone objectives is really an evaluative judgment and is not intended to be the product of a mathematical inquiry or finegrained economic analysis'.[112] I accept the respondent's submissions, that given the land use 'garden centre' is discretionary, the zoning objective plays an important role to inform the exercise of discretion[113] and should, as a matter of orderly and proper planning, be said to be consistent (or 'sufficiently consistent') with the zone objectives if approval is to be granted. This is reflected in the Tribunal's decisions in Warr,[114] WA Timber Supplies,[115] and Brikmakers.[116]
[112] Warr at [68].
[113] ts 183, 3 May 2023.
[114] Warr at [215].
[115] WA Timber Supplies at [146].
[116] Brikmakers at [105].
As mentioned, the objective of the Rural Composite zone, in cl 4.2.2 of LPS 3 is as follows:
To provide for small semi-rural lots that can accommodate a limited range of rural and low scale commercial land uses in a manner that will not adversely affect the landscape and environmental qualities of the land are appropriate to the area.
To establish if the proposed development is consistent with the zone objective, it is necessary to consider and determine if it is a low scale commercial land use. The other aspect of the zone objective, the impact of the proposed development on the amenity of the area, which includes landscape and environmental qualities, is considered at Issue 1.[117]
Is the proposed development a 'low scale commercial land use'?
[117] At [70]-[72].
The concern at the heart of the respondent's case[118] is whether the proposed development can correctly be characterised as a low scale commercial land use, with reference to the objective of the Rural Composite zone.
[118] Respondent's opening submissions; ts 29, 1 May 2023.
Low scale is not a term defined in LPS 3 or as a commonly combined dictionary term.[119] Considering dictionary definitions of the words separately,[120] 'low' in this context can be regarded as 'small in amount'. 'Scale' in this context is 'a certain relative size or extent'. In the context of this case, considering the individual definitions, 'low scale', in my view, has the meaning of 'small relative size or extent'. Mr Cake, in his evidence, identifies a range of size and extent factors which he asserts points to the proposed development not being 'low scale'. I will now consider these in the context of the Rural Composite zone objective and the relevant development requirements of LPS 3.
[119] The term 'low scale' is not found in either the Macquarie Dictionary Online or the Oxford Dictionary Online.
[120] Macquarie Dictionary Online.
Mr Cake's evidence is that the development requirements of cl 5.13.2 of LPS 3 are intended to guide development in the Rural Composite zone to achieve the zone objective (set out in cl 4.2.2).[121] When considering the question of the scale of the proposed development, Mr Cake says the variations to the development requirements of cl 5.13.2 contribute to the proposed development not, in his opinion, constituting a low scale commercial land use.[122]
[121] See [90].
[122] Witness Statement of Reegan Cake, paras 37-38, Exhibit 6.
When considering commercial activities, Mr Dykstra's evidence is that LPS 3 has five zones which are zoned Rural under the MRS and of these five zones, it is only the Rural Composite zone in LPS 3 where the objective of the zone (in cl 4.2.2) includes commercial activities.[123] I accept this is the case and that certain commercial land uses may be appropriate in this zone, as is facilitated by the LPS 3 provisions, and this includes consideration of whether the commercial activity is low scale.
[123] Witness Statement of Henry Dykstra, para 25, Exhibit 11.
In relation to the development requirements of cl 5.13.2, Mr Cake identifies two principal concerns.[124] First, he says the NLA exceeds the 300m2 permitted by LPS 3 and second, he says the proposed development has a 44 car bay shortfall against the parking requirements for garden centre set out in Table 3 of LPS 3.[125]
[124] 'Low scale commercial land use' is used in cl 4.2.2 which forms a part of the objective of the Rural Composite zone.
[125] Witness State of Reegan Cake, para 39, Exhibit 6. Although Mr Cake's evidence states a 44 car bay shortfall, however, as mentioned, the shortfall, based on the amended plans is 43 car bays, see [106]. Nothing turns on this difference.
Additionally, Mr Cake's asserts the proposed development is not a 'low scale commercial land use' for four further reasons.[126]
[126] Witness Statement of Reegan Cake, para 39, Exhibit 6.
First, he says the extent of open-air display and landscape supply storage bins (while he accepts these do not contribute to NLA) is not low scale and he says this results in a parking requirement under LPS 3 of 103 car bays.[127]
[127] With the amended plans (3 May 2023) the car parking requirement of 102 car bays. Nothing turns on this difference.
Second, Mr Cake argues the proposed operating hours from 7.00 am to 5.00 pm Monday to Saturday and 8.00 am to 5.00 pm on Sundays and public holidays is not consistent with a low scale commercial use and are more extensive than other commercial uses in the immediate locality.
Third, Mr Cake identifies the applicant's TIS shows expected daily vehicle movements to be 302 vehicles, including 70 truck movements.[128]
[128] Respondent's s 24 Bundle of Documents, page 137, Exhibit 3.
Fourth, he asserts the proposed development footprint of approximately 20,000m2 is larger than other commercial uses within the immediate locality, except for Magic Garden Supplies at No 721 Welshpool Road East (located directly opposite the subject site).
I will now consider these aspects.
NLA and the development footprint
The NLA of the proposed development is 350m2 and is 50m2 above the development provisions set out in cl 5.13.2(h)(i) of LPS 3. It is accepted by the planning experts the NLA development provision of LPS 3 acts to constrain built form.[129] Mr Dykstra says, and I accept, this development standard assists in maintaining the openness of the rural setting and an open landscape character.[130] Ms Moharich submits, and I accept, that the reason for the increase from 300m2 to 350m2, in this case, is the reuse of the existing buildings on the subject site.[131] Under cross-examination, Mr Cake's concerns with the scale of the proposed development was not with the 50m2 increase in NLA, but with the overall development footprint, the number of parking bays and the operating hours.[132] I will return to the overall development footprint next and then consider car parking and operating hours. However, considering the oral evidence of Mr Cake, I accept the applicant's submission that a 50m2 increase in NLA above the LPS 3 development requirements should not be viewed as fatal.[133] When I consider this locality,[134] which, as Mr Cake accepts,[135] includes large shed structures used for commercial purposes, and the proposed development which will reuse existing modestly scaled buildings, I accept an NLA of 350m2 is appropriate in this instance. I will return to this variation to NLA later at Issue 4, as it requires the exercise of discretion under cl 5.5 of LPS 3.[136]
[129] ts 77 and 79, 2 May 2023.
[130] ts 79, 2 May 2023.
[131] ts 171, 3 May 2023.
[132] ts 81, 2 May 2023. The operating hours of the proposed development is not identified as an issue or a contention by the respondent in its SIFC, Exhibit 2. While Mr Cake provides witness evidence on this aspect, the operating hours is also not a matter the respondent seeks to restrict through its Without Prejudice Draft Conditions (Exhibit 7). Mr Cake in his oral evidence does not identify a variation to the draft condition if the proposed development was to be approved by the Tribunal, see ts 149-150, 2 May 2023.
[133] ts 171, 3 May 2023.
[134] See [40]-[45] for locality.
[135] ts 80-81, 2 May 2023.
[136] See [132]-[149].
Turning to the overall development footprint (which, on the evidence of Mr Cake, is approximately 20,000m2),[137] it is uncontroversial that the development footprint is not controlled by the development provisions of cl 5.13.2. The applicant submits there is good reason for this because had the drafters of LPS 3 wanted to impose further constraints on commercial land uses they would have done so.[138] The applicant also identifies relevant parts of the LP Strategy to support its position. While the timing of the endorsement of LP Strategy[139] by the Western Australian Planning Commission (WAPC) post-dates LPS 3, the LP Strategy identifies the Rural Composite zone is found only in a small area of Wattle Grove adjacent to Welshpool Road East and says, 'Typically, the land use activities found in this area include garden centres and related horticultural suppliers'.[140] The LP Strategy also contains vision statements for 'Rural' areas and this includes the strategy to, 'Promote the use of the Rural Composite zone for 'space extensive' uses in rural areas'.[141]
[137] Witness Statement of Reegan Cake, para 7(c), Exhibit 6.
[138] ts 171-172, 3 May 2023.
[139] The LP Strategy is to be given due regard under cl 67(2)(fa). The LP Strategy was endorsed by the WAPC in 2010 (see ts 166, 3 May 2023) and which the parties agree post-dates gazettal of LPS 3, which occurred in March 2007.
[140] Respondent's s 24 Bundle of Documents, page 486, Exhibit 3.
[141] Respondent's s 24 Bundle of Documents, page 389, Exhibit 3.
Under cross-examination, Mr Cake concedes, correctly in my view, based on the LP Strategy there is an expectation that a garden centre will have an expansive area in this location and in this zone.[142] Additionally, considering the immediate locality, which the planning experts agree includes an approved garden centre, Magic Garden Supplies (located directly opposite the subject site, to the south) and which has a larger development footprint (Mr Cake's evidence is that it covers the entire 32,912m2 site area),[143] I do not accept the development footprint of the garden centre use, which occupies part of the subject site (approximately 20,000m2 or 58%), is inconsistent in this locality, with the Rural Composite zone or with the spatial context envisaged in the LP Strategy for this zone.
Car parking provision
[142] ts 77, 2 May 2023.
[143] Witness Statement of Reegan Cake, para 14, Exhibit 6.
The evidence of Mr Cake is that there is a variation of 44 car bays, with 59 car bays provided and 103 car bays is required under Table 3 of LPS 3.[144] The actual variation resulting from the amended plans, which reduces the sales and display area by 141m2, is 43 car bays, however, as mentioned, nothing turns on this difference. Mr Cake says this is one of the reasons why he says the proposed development is not low scale.[145] There is no suggestion in the evidence of the town planning experts that the variation of 43 car bays will result in a practical shortfall and a car parking problem. Under cross-examination, Mr Cake accepts the proposed development is not a garden centre that is of a retail nature and that it is intended customers will purchase mulch by the trailer load.[146] Further cross-examination on this point resulted in the following exchange:[147]
[144] Witness Statement of Reegan Cake, para 36, Exhibit 6.
[145] ts 74, 2 May 2023.
[146] ts 75, 2 May 2023.
[147] ts 76, 2 May 2023.
MS MOHARICH: [applicant's counsel]
But as a planner, Mr Cake, you would understand that the need for car parking arises when people get out of their car, and the longer the period people are out of their car to browse or have a coffee, etcetera, etcetera, the more car parking that's required?
MR CAKE: Yes. I do (indistinct) yes.
MS MOHARICH: Yes. And you would accept then that there are some garden centres that would have a much higher absolute requirement, regardless of what the scheme ratio said, because are, you know, lingering there to look and buy and experience.
MR CAKE: Yes. Yes.
MS MOHARICH: All right. And on that basis, you would agree that the actual requirement of car parking on this site is probably going to be more like the Magic Garden Supplies across the road.
MR CAKE: Potentially. Yes. If it's - - -
MS MOHARICH: Yes.
MR CAKE: - - - customers just coming with a trailer - - -
MS MOHARICH: Yes.
MR CAKE: - - - and filling it.
MS MOHARICH: And so if that is then is it fair to say that it's not an appropriate assessment tool to use the number of bays required to determine whether or not this particular land use is low scale?
MR CAKE: I – I do accept that it could be a potential misrepresentation of the required number of car bays at the site[.]
The proposed development involves extensive areas of landscape supply storage bins and customers will access these bins directly with their vehicle (and trailer). I accept the oral evidence of Mr Cake that applying car parking requirements based on Table 3 of LPS 3 for a garden centre of this nature could be a misrepresentation when considering the question of whether the proposed development is low scale.
Further, when considering the availability of car parking, the site plan shows a grassed overflow car parking area at the rear of the subject site. In the unlikely event a car parking problem occurs I accept this overflow parking area can be accessed on occasion. I have already considered the impact of the car park on the visual amenity of the locality under Issue 1.[148] I will return to the variation in car parking provision later, at Issue 4, as it requires the exercise of discretion under cl 5.5 of LPS 3.[149]
Vehicle movements
[148] See [72].
[149] See [132]-[149].
The TIS[150] indicates, from figures provided by the applicant using average sales data of similar developments, that the proposed development is estimated to generate about 302 daily vehicle trips, based on 100 customers, eight staff and up to 35 trucks.[151] In closing submissions, Mr Skinner submits the vehicle numbers have not been verified by the planners or by traffic engineers and that the Tribunal should be cautious relying on this information.[152] Ms Moharich, in reply, submits the operator of the proposed garden centre is experienced and the figures are derived from this experience at a nearby garden centre site in Hale Road which is closing down.[153] On the evidence before me, there is nothing to cast doubt on the veracity of the number of traffic movements stated in the TIS or that the impact of these traffic movements on the surrounding road network is in any way problematic. The TIS indicates that, based on the latest available traffic data provided by Main Roads WA (MRWA), Welshpool Road East in 2020/2021 carried approximately 17,650 vehicles per day. The TIS identifies that an increase from the proposed development is regarded to be insignificant, based on the criteria set out in the WAPC Transport Impact Assessment Guidelines Volume 1 (2016).[154] This was not disputed by the respondent, and I accept the estimated vehicle movements can be accommodated on the existing road network.
[150] Prepared for the applicant by Transcore, Respondent's s 24 Bundle of Documents, pages 128-153, Exhibit 3.
[151] Respondent's s 24 Bundle of Documents, page 137, Exhibit 3. The TIA estimates staff vehicle movements based on staff working two shifts each day.
[152] ts 186, 3 May 2023.
[153] ts 198-199, 3 May 2023.
[154] Respondent's s 24 Bundle of Documents, page 138, Exhibit 3.
The key concern with the estimated 302 vehicle movements is the impact on the neighbouring property, No 740, and the fact that the crossover for the proposed development is to be located immediately adjacent to this site and also immediately adjacent to the existing crossover of this site. While the respondent does not raise concerns as to safety, they do raise concern as to the amenity impact on No 740 and submit there is an opportunity for the crossover of the proposed development to be relocated, which the respondent says is relevant in assessing the impact of the proposed development.[155]
[155] ts 187, 3 May 2023.
However, in respect to relocation of the crossover elsewhere, I accept the submission from Ms Moharich that the location of the driveway, including access and traffic, are not raised by the respondent in their SIFC. Had they been, the applicant submits, then evidence would have been provided identifying the need for, and extent of, the slip lane on Welshpool Road East as is proposed. The applicant submits, in these circumstances the respondent is suggesting the Tribunal should consider an alternative proposal, one which is not before me. The applicant submits, and I accept, the decision of the former Town Planning Appeal Tribunal[156] in SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138 (2003) 35 SR (WA) 32 at [90] is relevant:
… The function for the Tribunal is not, of course, to determine whether a proposed development is the best possible development, having regard to all issues, that might conceivably be placed on the subject site. What the Tribunal must do is to assess whether, in the interests of all orderly and proper planning, and the amenity of the area, and having regard to all applicable planning instruments, a development should be approved. Thus, unless it can be said that a proposed development is contrary to any of those considerations, it should be approved notwithstanding that some may think that a better development of the site might be possible.
[156] Deputy Chair, JA Chaney SC (as he then was), M Brown and M Graham.
On the evidence before me, I do not accept the number of vehicle movements per se, as estimated for the proposed development, is in some way inappropriate in this locality or for a low scale commercial activity in the Rural Composite zone, because a similar scale garden centre business already operates in the immediate locality. The location of the crossover (and associated internal accessway) also involves consideration of its amenity impact. This is addressed at Issue 1.[157]
Operating hours
[157] At [63]-[69] and [76].
Mr Cake says that the proposed operating hours are not consistent with a low scale commercial land use and says they are more extensive than other commercial uses in the immediate locality.[158] Mr Cake asserts the other garden centre in the immediate locality, Magic Garden Supplies, has lesser operating hours, based on a Google search, which he says are 8.00 am to 5.00 pm Monday, Tuesday, Thursday, Friday and Saturday and then 10.00 am to 2.00 pm on Sunday and closed on Wednesday.[159] The operating hours for the proposed development is an additional 20 hours per week,[160] with the proposed operating hours being from 7.00 am to 5.00 pm Monday to Saturday and 8.00 am to 5.00 pm on Sundays and public holidays. Under cross-examination, Mr Dykstra accepts the busiest times of operation of the proposed development are likely on weekends and public holidays.[161]
[158] Witness Statement of Reegan Cake, para 39, Exhibit 6.
[159] ts 72-73, 2 May 2023.
[160] Mr Cake's oral evidence incorrectly indicates the difference to be 'almost an additional 22 hours a week', ts 73, 2 May 2023.
[161] ts 86-87, 2 May 2023.
While on one level, I accept that operating hours is a factor which may indicate an intensity of a land use, the respondent does not raise this as a particular issue or contention in their SIFC, nor seek through their draft without prejudice conditions to curtail the operating hours. Further, the operating hours of the existing garden centre, opposite the subject site, is not, on the evidence before me, restricted to the hours identified by Mr Cake, through a condition imposed on its planning approval. The planning approval, granted in September 1992, for this garden centre does not include a condition restricting its operating hours.[162]
[162] Planning approval - Proposed Garden supply centre No 721 Welshpool Road [East], Wattle Grove, Exhibit 16.
Ms Moharich, in closing submissions, says the applicant does not agree that the operating hours are so excessive as to suggest the intensity is anything other than low scale, and that even if the applicant was wrong on this, it would be open to the Tribunal to impose a condition reducing the operating hours and that this is not a reason to refuse the proposed development, but for the imposition of a condition.[163] I agree with this submission. Mr Skinner, in closing submissions, relies on the evidence of Mr Cake, and says the trading hours of the proposed development are greater than the Magic Garden Supplies business opposite but he does not go on to submit this aspect should be remedied through the imposition of a more restrictive condition.[164] In my view, the proposed operating hours reflect a typical garden centre activity and, considering the submissions and the evidence before me (including the unrestricted operating hours of the garden centre opposite), the proposed operating hours are reasonable in the circumstances of this land use and in this case.
Findings - Issue 2
[163] ts 174, 3 May 2023.
[164] ts 191, 3 May 2023.
The proposed development which involves the continued use of an existing single house and an additional use 'garden centre' is, I find, consistent with the aims and provisions of LPS 3, including the objective of the Rural Composite Zone (at cl 4.2.2) for five reasons.
First, the development footprint of the proposed development is consistent with the locality and other development in the Rural Composite zone, including an existing larger garden centre located immediately opposite the subject site. The proposed garden centre use will not occupy the entire area of the subject site (occupying approximately 58%) and the proposed development provides for revegetation abutting Yule Brook.
Second, the LP Strategy expressly recognises a garden centre land use is appropriate in the Rural Composite zone and that this zone is envisaged to be used to accommodate space extensive land uses, such as the proposed development.
Third, considering the intended operation of the proposed development which involves some display areas and large areas of bulk landscape supplies which will be accessed directly by customers in their vehicles (with trailers), the provision of car parking is appropriate in this instance. The proposed overflow car parking area can be utilised if additional car parking is required on occasion.
Fourth, the vehicle movements of the proposed development (estimated to be 302 vehicles per day which includes customers and deliveries), are consistent with the nature of a low scale commercial activity such as a garden centre use particularly when considered in the context of existing traffic on Welshpool Road East (which carries 17,650 vehicles per day).
Fifth, the operating hours of the proposed development is consistent with a low scale commercial activity garden centre use because, on the evidence before me, they are not, in my view, unreasonably outside of the usual trading hours expected of this type of activity, and includes an existing garden centre located immediately opposite the subject site, which on the evidence before me, has operating hours not restricted by a condition of its planning approval.
Issue 3 - Is the proposed development consistent with the requirements of orderly and proper planning?
The respondent contends the proposed development is not consistent with the requirements of orderly and proper planning because it involves a relatively high intensity land use that exceeds the NLA, is inappropriate in the area and conflicts with the LP Strategy. In this regard, the respondent submits the LP Strategy has identified Wattle Grove as an area for future development to accommodate population growth, identifying part of the area as an urban investigation area, which has since been named 'Crystal Brook'.[165] The CBCP is identified as relevant.[166] However, at the hearing, in opening submissions, this aspect of this issue was not pressed by the respondent.[167]
Planning evidence
[165] Respondent's SIFC, paras 30 and 43-44, Exhibit 2.
[166] Respondent's SIFC, paras 31-35, Exhibit 2.
[167] ts 29, 1 May 2023.
Expert evidence on future planning was provided by Mr Dykstra who asserts that the CBCP outlines a preferred development outcome based on community input. He says this document also acknowledges that progression of these community-based development preferences and ideas would still require a significant level of planning and consideration by the City's Council.[168] I accept this is the case. The CBCP itself states it 'is a preliminary and conceptual instrument which will not lead to any planning changes'.[169] Therefore, I accord little weight to the CBCP in my findings on this issue.
[168] Witness Statement of Henry Dykstra, para 21, Exhibit 11.
[169] Respondent's s 24 Bundle of Documents, page 667, Exhibit 3.
Mr Cake's evidence does not address future planning of the locality when considering the question of orderly and proper planning and does not expand on his reasons, other than repeating the considerations he identifies in his evidence in Issue 1.[170]
Orderly and proper planning
[170] Witness Statement of Reegan Cake, para 41, Exhibit 6.
As mentioned earlier, I accept the respondent's submissions, that given the garden centre use under consideration is discretionary, the zoning objective plays an important role to inform the exercise of discretion and should, as a matter of orderly and proper planning, be said to be consistent (or 'sufficiently consistent') with the zone objectives if approval is to be granted.[171]
[171] See [88]-[89].
When considering orderly and proper planning, the principles outlined by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179] - [182] (Marshall) are relevant:
179… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
(Footnotes omitted)
Orderly and proper planning is also a relevant consideration in cl 67(2)(b) of the Deemed Provisions. In respect to this clause, which includes consideration of a future planning scheme (or scheme amendment) that may be being considered for adoption, it is uncontroversial there is no current proposal to amend LPS 3. The evidence of Mr Dykstra, which I accept, is that the NESRPF still identifies the subject site and immediate surrounds as Rural and that the CBCP, which provides a concept plan and indicates potential for future progressive intensification of the locality will require a significant level of further planning and decision-making.[172] Accordingly, and as mentioned, I do not accord the CBCP significant weight in arriving at my decision. I also accept the evidence of Mr Dykstra that garden centre uses (such as the proposed development), due to their minimal amount of built form and infrastructure, can function as a transitional land use.[173]
[172] Witness Statement of Henry Dykstra, para 31, Exhibit 11.
[173] Witness Statement of Henry Dykstra, para 32, Exhibit 11.
In this case, when considering the issue of orderly and proper planning, the submissions of the parties and the evidence before me does not extend beyond the relevant matters contained in the planning framework. Therefore, when considering orderly and proper planning, the proposed development should be considered against this framework, which includes LPS 3 and the LP Strategy. These have been considered under Issue 1 and Issue 2. I have found the proposed development meets the aims and provisions of LPS 3,[174] including the zone objective of the Rural Composite zone (in cl 4.2.2), and that it is compatible with its setting and with the amenity of the locality.[175]
Findings - Issue 3
[174] See [116]-[121].
[175] See [73]-[76].
The proposed development is, I find, consistent with orderly and proper planning for two reasons.
First, having considered the proposed development against the relevant aims and provisions of LPS 3, as identified in Issue 2,[176] on the evidence before me, I consider the proposed development meets the relevant objective of the Rural Composite zone in cl 4.2.2.
[176] See [77]-[121].
Second, considering the relevant matters identified in cl 67(2) of the Deemed Provisions, and in particular cl 67(2)(m) and cl 67(2)(n), which are addressed in Issue 1,[177] the proposed development is, in my view, appropriate in its setting in the Rural Composite zone and in its locality, and its impacts can be acceptably managed through the imposition of appropriate conditions of approval.
Issue 4 - What is the correct and preferable determination of the proposed development under clause 67(2) of the Deemed Provisions:
(a) having due regard to the consideration of the matters in Issue 1 to 3; and
(b) where the proposed development does not comply with a requirement prescribed under LPS 3, necessitating an exercise of discretion, under clause 5.5?
[177] See [35]-[76].
The respondent contends, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, the proposed development does not merit an exercise of discretion to grant approval as it does not comply with the required provisions for parking bays nor the maximum NLA and requires a variation to the maximum.[178]
[178] Respondent's SIFC, para 53, Exhibit 2.
I now return to cl 5.5 of LPS 3, which as mentioned earlier,[179] provides for variations to site and development standards and requirements and states:[180]
[179] At [84].
[180] LPS 3, cl 5.5.1, cl 5.5.2 and cl 5.5.3, Respondent's s 24 Bundle of Documents, Document 4, Exhibit 3.
5.5.1Except for development in respect of which the Residential Design Codes apply and development in a Bushfire Prone Area, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the local government may, despite the non-compliance, approve the application unconditionally or subject to such condition as the local government thinks fit.
5.5.2In considering an application for planning approval under this clause, where in the opinion of the local government, the variation is likely to affect any owners or occupiers in the general locality or adjoining the site which is the subject of consideration for the variation, the local government is to:
a)consult the affected parties by following one or more of the provisions for advertising uses pursuant to clause 9.4; and
b)have regard to any expressed views prior to making its decision to grant the variation.
5.5.3The power conferred by this clause may only be exercised if the local government is satisfied that -
a)approval of the proposed development would be appropriate having regard to the criteria set out in clause 10.2; and
b)the non-compliance will not have an adverse effect upon the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality.
The criteria set out in cl 10.2 referred to in cl 5.5.3 a) are the matters to be considered by local government, which since the introduction of the Deemed Provisions in 2015 are the matters listed in cl 67(2) of those provisions.
Mr Cake's evidence is that because the proposed development does not meet the development requirements set out in LPS 3 relating to NLA and car parking this means the development does not meet the Rural Composite zone objective. He also says that varying the provisions of LPS 3 is not consistent with orderly and proper planning and finally, that the scale of the proposed development and its location being on the northern side of Welshpool Road East results in it being incompatible with its setting.[181]
[181] Witness Statement of Reegan Cake, para 58, Exhibit 6.
Mr Dykstra's evidence is that having due regard for the compliance of the proposed development with the objectives of the Rural Composite zone, the use class table discretion, the relevant Scheme provisions, the merits of the proposed variations to NLA and the compatibility of the land use with the surrounding area, the proposed development does merit the exercise of discretion to be approved, with conditions, which he says should include a condition for solid fencing and a landscaped strip along the common boundary with No 740.[182]
[182] Witness Statement of Henry Dykstra, para 45, Exhibit 11.
In this case, it is ultimately for me, sitting in the place of the local government, and considering the submissions, the evidence before me, and my findings to Issues 1 to 3, to determine if discretion under cl 5.5 of LPS 3 should be exercised to arrive at the correct and preferrable decision in this case. I shall now turn to one remaining relevant matter listed under cl 67(2) not considered earlier.
Relevant State planning policies
Clause 67(2)(c) of the Deemed Provisions and s 241(1) of the PD Act[183] requires due regard to be given to any State planning policy which may affect the subject matter of this application. In this case, SPP 2.5, SPP 3.7 and the R-Codes are relevant. Compliance with SPP 3.7 is not in contention in this case, and I have already referred to the R-Codes.[184]
[183] Section 241(1) of the PD Act directs that the Tribunal is to have due regard to relevant planning considerations including any State planning policy which may affect the subject application.
[184] See [27]-[28].
At the commencement of the hearing, I raised SPP 2.5 with the parties and invited submissions as SPP 2.5 was not identified in the respective SIFCs or in the witness statements of the expert town planners. The parties submit, and I accept, that in this case SPP 2.5 is of only peripheral relevance. This is because, although the subject site is zoned 'Rural' under the MRS (and therefore subject to SPP 2.5), the City's local planning framework considered the relevant parts of SPP 2.5 when it was formulated, and in terms of development control, the parties accept the proposed land use 'garden centre' is a land use that can be contemplated under LPS 3 in the Rural Composite zone.[185]
Findings - Issue 4
[185] ts 161 and ts 178-179, 3 May 2023.
The correct and preferrable determination, considering the relevant matters under cl 67(2) of the Deemed Provisions and my findings on Issues 1 to 3, and cl 5.5 of LPS 3 is, I find, to approve the proposed development for nine reasons.
First, considering the findings in Issue 1, the proposed development is compatible with its setting, including with the adjoining land and with the desired future character, the consideration under cl 67(2)(m).
Second, also considering the findings in Issue 1, the proposed development will not have a detrimental impact on the amenity of the locality, including the environment and the character of the locality, relevant considerations under cl 67(2)(n).
Third, reflecting the findings to Issue 2, approval of the proposed development satisfies the aims and provisions of LPS 3, the consideration under cl 67(2)(a).
Fourth, reflecting the findings to Issue 3, approval of the proposed development is consistent with the requirements of orderly and proper planning, the consideration under cl 67(2)(b).
Fifth, considering the planning matters raised in submissions (a relevant consideration under cl 67(2)(y)), the relevant remaining concerns raised are, in my view, capable of resolution through conditions of approval including those relating to environmental management matters.
Sixth, in relation to the NLA of the proposed development, having considered the general development requirements of LPS 3 in cl 5.13.2(h), the NLA sought, being 350m2, is in my view an acceptable and minor variation to the LPS 3 general development requirement of 300m2 that has no demonstrated detrimental impact on the amenity of the locality.
Seventh, in relation to the provision of car parking, having considered the car parking requirements of Table 3 of LPS 3 and the nature of the operation of the proposed development, which it is accepted, includes some customers accessing the subject site in cars with trailers to collect landscaping supplies, the provision of 59 car bays is, in this instance, acceptable and will not have a detrimental impact on the amenity of the locality.
Eighth, in relation to the use of solid fencing close to part of the common boundary with No 740 abutting the garden centre activity, having considered the context of the locality, which also includes solid fencing on the western boundary of the subject site, it is appropriate to vary cl 5.13.2(c) of LPS 3 to permit the use of solid fencing (timberlap or Colorbond sheeting) in this instance as it will have no detrimental impact on the amenity of the locality.
Ninth, the proposed development will not, on the evidence before me, have an adverse effect upon the occupiers or users of the development, the inhabitants of the locality or the likely future development of the locality. This is a relevant consideration under cl 5.5.3 b) of LPS 3.
Conclusion
The proposed development involves a proposed 'garden centre' use (and associated works) as an additional use to the existing single house at the subject site. I consider the proposed development meets the relevant objective of the Rural Composite zone because it is a low scale commercial activity which will not adversely impact the environmental or landscape qualities of the locality and has also demonstrated that it will not have a detrimental impact on the locality.
I conclude that having due regard to the relevant aims and provisions of LPS 3 and the relevant matters in cl 67(2) of the Deemed Provisions and weighing up my findings in respect to the four issues for determination, the correct and preferrable decision is to grant approval of the proposed development, subject to conditions.
Conditions
In the event the Tribunal determined that the development should be approved, the respondent provided 19 draft without prejudice conditions.[186] At the hearing, after conferral between the parties, the applicant filed its response to the draft without prejudice conditions, which included one further draft condition.[187] These conditions were the subject of further consideration by the parties and the planning experts at the hearing where the wording of several of the without prejudice draft conditions was refined and agreed.[188] One minor amendment is necessary to specify the height of the solid fence (condition (q)), which is to be 1.8 metres. I accept these conditions are appropriate and are reflected in the orders which follow.
[186] Respondent's Draft Without Prejudice Conditions, Exhibit 7.
[187] Applicant's Response to Respondent's Draft Without Prejudice Conditions, Exhibit 14.
[188] ts 41-42, 139-150, 2 May 2023.
The approved plans, drawings and documents referred to in condition (a) are listed in 'Annexure A'. The two updated plans (provided by the applicant after the conclusion of the hearing), which also form part of the approval, are included in 'Annexure B'.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The refusal of the proposed development by the respondent on 13 December 2022 is set aside and development approval is granted for an additional use 'garden centre' and associated works at No 720 Welshpool Road East, Wattle Grove, under the Metropolitan Region Scheme and the Shire of Kalamunda Local Planning Scheme No 3 subject to the following conditions:
(a)The development must be carried out in accordance with the plans, drawings and documents listed (including any recommendations made in those documents) in Annexure A and the drawings included in Annexure B.
(b)A Dust Management Plan is required to be submitted to the City of Kalamunda for approval prior to the issue of the building permit. Once approved the plan is to be implemented to the satisfaction of the City of Kalamunda.
(c)Prior to the issue of an occupancy permit, the applicant is required to submit a Site and Soil Evaluation in accordance with AS/NZS 1547 On-Site Domestic Wastewater Management. The Site and Soil Evaluation is to be conducted during the wettest time of the year and provide guidance on the most suitable placement and sizing of the effluent disposal land application area for the development.
(d)Prior to the occupation of the development, a Noise Management Plan must be submitted to, and approved by, the City of Kalamunda. Once approved, the plan is to be implemented to the satisfaction of the City of Kalamunda.
(e)The Garden Centre is permitted to operate Monday to Saturday, 7.00 am until 5.00 pm, and Sundays and Public Holidays, 8.00 am until 5.00 pm.
(f)The Asset Protection Zone (APZ) shall be implemented and maintained to the satisfaction of the City of Kalamunda in accordance with the APZ standards set out under Element 2 Siting and Design in the Guidelines for Planning in Bushfire Prone Areas Appendices Version 1.4.
(g)The Garden Centre must be constructed with the finished floor levels matching the approved plans. Any additional proposed cut and fill to the site does not form part of this development approval and if required, amended plans must be submitted to the City of Kalamunda for approval.
(h)Prior to lodgement for the building permit, a detailed drainage design must be submitted based on geotechnical investigations and incorporating water sensitive design principles ensuring all stormwater is contained on site, or appropriately treated and connected to a local drainage system, to the specification of the City of Kalamunda in consultation with the Department of Water and Environmental Regulation. The drainage basin design must address dissolved nutrient retention.
(i)Prior to issue of the occupancy permit, all car parking areas must meet the following requirements:
(i)The provision and maintenance of a minimum of 59 car parking spaces, must be designed, constructed sealed, kerbed, drained and line marked in accordance with the Australian/New Zealand Standards.
(ii)The provision and maintenance of two accessible car parking spaces, that are designed, constructed, sealed, kerbed, drained and line marked that are dedicated to people with disabilities that are designed in accordance with the Australian/New Zealand Standard AS/NZ 2890.6:2009, Parking Facilities Part 6 off street parking.
(iii)Vehicle parking, manoeuvring and circulation areas are to be suitably constructed, sealed, kerbed, drained and line marked to the specification and satisfaction of the City of Kalamunda and Australian Standard AS AS2890.
(j)Car parking areas must always be available for their intended purpose and must not be used for any alternative purpose at any time.
(k)Prior to the issue of the occupancy permit, the requirements of the Transport Impact Statement must be implemented to the satisfaction of the City of Kalamunda.
(l)Prior to the issue of the building permit, the applicant/landowner must submit detailed drawings of the deceleration lane to the satisfaction of the City of Kalamunda.
(m)Prior to the issue of the occupancy permit, construction of approved works outlined in condition (l) are to be carried out and completed at the applicant/landowners cost.
(n)Prior to the issue of the occupancy permit, all crossovers must be designed and constructed to the specification and satisfaction of the City of Kalamunda.
(o)The approval does not permit vehicles entering and exiting the site that exceed 19 metres in length.
(p)Prior to the issue of the building permit, the submitted landscape plan shall be approved by the City of Kalamunda. All the landscaping noted in the approved landscape plan must be planted prior to occupation of the development, or as otherwise agreed in writing by the City of Kalamunda, and maintained thereafter, to the satisfaction of the City of Kalamunda. Any species which fail to establish within the first two planting seasons following implementation must be replaced at the applicant/landowners cost and to the satisfaction of the City of Kalamunda.
(q)Fencing on the boundary between No 720 Welshpool Road East and the adjoining site, No 740 Welshpool Road East, up to and including the location of the grassed overflow parking area shown on the approved plans, must be of Colorbond or Timberlap type, 1.8 metres in height to provide a visual screen between the development on No 720 Welshpool Road East and No 740 Welshpool Road East and must be offset from the boundary by 2 metres. Landscaping of the 2 metre strip between the fence and boundary must be included in the landscape plan referred to in condition (p).
(r)A Revegetation and Rehabilitation Landscape Plan for the rear portion of the site abutting the Yule Brook water course, must be submitted to, and approved by the City of Kalamunda, in consultation with Department of Water and Environmental Regulation and implemented prior to issuance of the building permit, or as otherwise agreed in writing by the City of Kalamunda. The Revegetation Plan and Rehabilitation Landscape Plan must include:
(i)The area proposed to be revegetated on the northern side of Yule Brook, in accordance with the area identified as Plan 20843-04A dated 30 June 2021.
(ii)A landscaped area of 5 metres width along the western boundary of the subject site from the location where the Yule Brook revegetation ends, to the grassed overflow car parking area. The density of planting within the landscaped area must include a screen of shrubs (in the form of a hedge or otherwise) capable of at least 2 metre height and groundcover, to reduce the transmission of weeds to the adjoining Hartfield Park.
(iii)The revegetation area and the landscaped area must be monitored and maintained for three summers. Any species which fail to establish within the first three summers following implementation must be replaced at the landowners cost and to the satisfaction of the City of Kalamunda.
(s)This development approval does not authorise the removal of any vegetation other than any marked for removal on the approved plan(s). The vegetation identified on the plans for retention shall be protected in accordance with AS 4970-2009 prior to works commencing on site.
(t)Apart from the revegetation areas that are identified in relation to condition (r), the area of the site to the rear of the grassed overflow parking area shown on the approved plans is not included as part of this approval and is not to be used for any purpose associated with the Garden Centre, or for storage of any goods or equipment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
18 JULY 2023
Annexure A
List of approved plans, reports and documents referred to in condition (a).
| Plan/Doc No | Title | Revision | Date | Prepared By |
| 20843-01 | Site Plan | M | 3/05/2023 | Harley Dykstra |
| 20843-01 | Part Site Plan (enlargement) | M | 3/05/2023 | Harley Dykstra |
| 20843-01 | Elevations & Floor Plan | D | 28/01/2021 | Harley Dykstra |
| 20843-03 | Landscape Plan | E | 27/10/2022 | Harley Dykstra |
| 16191 | Acoustic Assessment | 3 | 25/10/2022 | Herring Storer Acoustics |
| T16.340 | Transport Impact Statement | r01f | 3/11/2022 | Transcore Pty Ltd |
| n/a | Preliminary Design Stage (Stage 2) Road Safety Audit | n/a | November 2022 | Transcore Pty Ltd |
| 20PER-18016 | Bushfire Management Plan | V3 | 10/11/2022 | Eco Logical Australia |
| PC16017- CI-1100 | General Arrangement Plan – left in/left out crossover | J | 16/07/2022 | Peritas |
| PC16017 - LER001 | Applicants Traffic Responses to Traffic Issues | 0 | 11/03/2022 | Peritas |
| PC16017- LER003 | Applicants Traffic Responses to Traffic Issues | 1 | 22/04/022 | Peritas |
| PC16017- LER004 | Applicants Traffic Responses to Traffic Issues | 0 | 22/08/2022 | Peritas |
| PC16017- CI-SK4 | 19m Semi Trailer Turning Movements | F | 18/06/2022 | Peritas |
| PC16017- CI-SK5 | 19m Semi Trailer Turning Movements | F | 18/06/2022 | Peritas |
| DVCLG401 | Consultant Technical Note | 1 | 11/07/2022 | DV Consultants |
| KAL | Technical Response to Traffic Matters | A | 30/09/2022 | City of Kalamunda |
Annexure B
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