ALDI FOODS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE - [2024] WASAT 27

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ALDI FOODS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2024] WASAT 27
MEMBER:   MR R POVEY, MEMBER
HEARD:   7 - 8 FEBRUARY 2024
DELIVERED          :   16 APRIL 2024
FILE NO/S:   DR 130 of 2023
BETWEEN:   ALDI FOODS PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning - Development application - Installation of security shutters to shopfront - Need for security - Activity centre - District centre - Compatibility with setting - Impact on amenity - Crime prevention through environmental design (CPTED) - Safety - Whether cogent reason to depart from local planning policy

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(c), cl 67(2)(fa), cl 67(2)(g), cl 67(2)(h), cl 67(2)(m), cl 67(2)(m)(i), cl 67(2)(m)(ii), cl 67(2)(n), cl 67(2)(n)(ii), cl 67(2)(n)(iii), cl 67(2)(r), cl 67(2)(w)
Planning and Development Act 2005 (WA), s 241(1), s 241(1)(a), s 252(1)
Shire of Serpentine Jarrahdale Local Planning Scheme No 3, Sch 4

Result:

Application for review is dismissed
Decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr J Hofland (Planning Advocate)
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Rowe Group (as Agents)
Respondent	:	McLeods

Case(s) referred to in decision(s):

Binocular Telescope & Optical World and Town of Vincent [2004] WATPAT 133
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 [2002] WASCA 276
Grace and City of Nedlands [2010] WASAT 53
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Newco Mills Pty Ltd and the Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

ALDI Foods Pty Ltd (applicant) seeks approval to install security shutters (proposed development or shutters) to the glazed shopfront of their Byford shop building (ALDI shop) at Lot 510 (No 845) South Western Highway, Byford (subject site). The proposed development is to roll down to obscure and protect the exterior of the glazed shopfront when the ALDI shop is closed.
On 5 July 2023, the Shire of Serpentine-Jarrahdale (respondent or Shire) refused to grant development approval.
The applicant seeks review of that decision pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
For the reasons given below, I have determined the 'correct and preferrable decision' is to dismiss the application for review and affirm the decision of the respondent.

The subject site, ALDI shop and car park

The relevant facts are, I find, as follows.
The subject site:
(a)accommodates the ALDI shop and associated car park. This development was approved in December 2016, and since 2018 developed in accordance with that approval;
(b)is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'District Centre' under the Shire of Serpentine Jarrahdale Local Planning Scheme No 3 (LPS 3); and
(c)is designated 'District Centre' under the Byford District Structure Plan (BDSP) and 'Town Centre' under the Byford Town Centre Local Structure Plan (BTCLSP).
The ALDI shop:
(a)has a north facing shopfront (oriented towards the car park) which is glazed for its entire length of approximately 23 metres, with clear glazing extending full height (floor to eaves) of the single storey façade. This façade incorporates the customer entry/exit. Smaller portions of glazing (also floor to eaves) extend from the northern frontage (southwards) on the eastern and western facades of the building for approximately 3 metres (glazed shopfront);
(b)retails groceries, household items and alcohol. The alcohol is located towards the front of the shop, abutting the customer entry/exit, but is not visible from outside;[1]
[1] Respondent's Statement of Issues Facts and Contentions (SIFC), para 13, Exhibit 2 and Applicant's SIFC, para 7, Exhibit 6.
(c)has current typical trading hours of:[2]
[2] Respondent's SIFC, para 17, Exhibit 2.
(i)All weekdays, other
than Thursday:         8.30 am to 8.00 pm;
(ii)Thursday:  8.30 am to 9.00 pm;
(iii)Saturday:  8.30 am to 5.00 pm;
(iv)Sunday:  11.00 am to 5.00 pm;
(d)is fitted with external CCTV and perimeter security lighting on the building which stays on all night. The internal lighting of the shop switches off automatically 15 minutes after closing and the external lighting switches off one hour after closing;[3] and
(e)experienced eight incidents involving vandalism, break-in or attempted break-in during the period 10 April 2022 to 5 June 2023. These events resulted in damage to the glazed shopfront and, for the break-ins, theft of a quantity of goods.[4]
[3] Applicant's SIFC, para 15, Exhibit 6.
[4] Applicant's SIFC, para 8, Exhibit 6.
The car park at the subject site is to the north of the ALDI shop and has vehicle access from George Street (which runs parallel to, and is to the west of South Western Highway) and has no vehicle access from South Western Highway.
Pedestrians can access the ALDI shop from the South Western Highway footpath (by a small descent) using steps or a ramp or from George Street, also via steps or ramp (by a small ascent), as the ALDI shop floor level is approximately mid-level between the two roads. The pathway between South Western Highway and George Street directly abuts the glazed shopfront. North of this pathway is a landscape strip incorporating several trees and shrubs and pedestrian access to the car park.

The proposed development

The proposed development is for shutters, which roll down, covering (and protecting) the exterior of the glazed shopfront. When not in use, the shutters are housed in a casing, designed not to be visible from surrounding streets. The shutters are 'basalt' (grey) colour, the same as the ALDI branded exterior.[5] The shutters are typically to be closed:[6]
All weekdays, other than:
Thursday:  9.30 pm to 7.00 am next morning;
Thursday:  10.00 pm to 7.30 am next morning;
Saturday:  6.00 pm to 10.00 am next morning;
Sunday:  6.00 pm to 7.30 am next morning.
[5] Respondent's s 24 Bundle of Documents, page 112, Exhibit 3.
[6] Applicant's SIFC, para 11, Exhibit 6. At the hearing the parties agreed a without prejudice draft condition, that if an approval is granted by the Tribunal, that the proposed development be allowed to be closed from 10.00 pm to 6.00 am the next morning, each day – ts 96 - 97, 8 February 2024.

The locality

In Ridgecity Holdings[7] the Tribunal stated:
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[.]
[7] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 at [42].
In this case, the planning experts do not agree the extent of the relevant locality. The respondent called Heather O'Brien, a planning expert, to give evidence. She describes the locality 'to comprise of the area between Evans Way to the north, Abernethy Road to the south, Sansimeon Boulevard to the west and the residential lots to the east and south-east which fit the locational criteria that I mentioned earlier'.[8] As to the locational criteria Ms O'Brien identifies, it is for residential properties which are:[9]
…
•Located to the east and south-east of the ALDI site;
•Located within 800m of the Byford train station; and
•Located north of Beenyup Road (residents south of Beenyup Road are likely to cross South Western Highway at Beenyup Road and approach the railway station along the west side of the railway)[.]
[8] Witness Statement of Heather O'Brien, para 18 and Attachment HJO 2, Exhibit 4.
[9] Witness Statement of Heather O'Brien, para 16, Exhibit 4.
Ms O'Brien says the reasons for this extent, in summary, involves consideration of the BTCLSP,[10] the Byford train station (train station) (currently under construction as part of METRONET, due for completion at the end of 2025) and an 800-metre walkable catchment from this train station. She asserts, '[t]he visual amenity and perceived safety which pedestrians can be expected to pass on their way to and from the train station, is in my opinion, a critical planning consideration …'.[11]
[10] Respondent's s 24 Bundle of Documents, pages 606 – 752, Exhibit 3.
[11] Witness Statement of Heather O'Brien, para 16, Exhibit 4.
The applicant called Mr Nathan Stewart as an expert planning witness. He also identifies what he considers the extent of the relevant locality (which, I observe, is significantly smaller than that identified by Ms O'Brien). He says it extends west to the western side of George Street, south to the northern side of Abernethy Road/Beenyup Road, east to include the rear boundary of properties fronting the eastern side of South Western Highway and north to Lot 91 South Western Highway (located on the eastern side of the highway) and Lot 4 South Western Highway (located on the western side of the highway).[12]
[12] Witness Statement of Nathan Stewart, Annexure 04, Exhibit 8.
Under cross-examination, Mr Stewart says physical barriers form part the locality and he identifies the railway forms 'a very significant physical barrier, mainly for pedestrians, as well as vehicles'. He also says, '[i]n terms of visual impact from the [proposed development], I think it is very limited'.[13] Mr Stewart opines visual impact is limited to those properties fronting the Highway. To the north, he says, the Dome Café (at Lot 3 South Western Highway) acts as a boundary and to the south, Abernethy Road/Beenyup Road.[14]
[13] ts 35, 7 February 2024.
[14] ts 35-36, 7 February 2024.
The evidence of the planning experts as to the relevant locality raises the two planning matters, being visual amenity and safety, which are at the heart of this case. I prefer, and accept, the evidence of Mr Stewart as to the extent of the relevant locality, for two reasons.
First, considering the proposed development in its context of the Byford town centre (town centre), the extent of visual amenity impact is, in my view, localised and does not impact the wider extent identified by Ms O'Brien. I accept the evidence of Mr Stewart (and as observed at the view) that from the western side of the railway line (which Ms O'Brien includes), 'it is very difficult to see the shopfront of the ALDI'.[15]
[15] Ibid.
Second, when considering safety, given the impact of the proposed development on safety is mainly, on the evidence before me, confined to an existing pedestrian pathway on the subject site (directly abutting the shutters) the relevant locality does not, in my view, extend beyond the properties on the eastern side of South Western Highway and George Street (to the west).
However, I do accept, in this case, understanding the subject site in its context is important. Both planning experts identify the train station (under construction) and that the subject site is located within an 800 metre walkable catchment of this station.[16] I also accept the context includes a residential area to the east of the subject site (on the other side of South Western Highway) and that residents are likely to cross the highway to access the town centre and, in future, the train station.
[16] Witness Statement of Heather O'Brien, para 16, Exhibit 4.

Planning framework

The relevant planning framework I have considered in determining this application includes:
(a)MRS;
(b)LPS 3, which includes the Deemed Provisions;[17]
(c)State Planning Policy 4.2 – Activity Centres (SPP 4.2);[18]
(d)State Planning Policy 7.0 – Design of the Built Environment (SPP 7.0);[19]
(e)Shire of Serpentine Jarrahdale Local Planning Strategy (LP Strategy);
(f)BDSP;
(g)BTCLSP;
(h)Local Planning Policy: 2.5: Serpentine Jarrahdale Activity Centres (LPP 2.5);
(i)Local Planning Policy 3.8: Byford Town Centre Built Form Guidelines (LPP 3.8); and
(j)Local Planning Policy No 24: Designing Out Crime (LPP 24).
[17] The 'Deemed Provisions' are contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
[18] SPP 4.2 also provides 'SPP 4.2 Implementation Guidelines' which at cl 4.3 (addressing Staging and Land Use Diversity and Residential Density), when considering applications for 'major developments', allows for 'interim development in a way that does not compromise the ultimate development of the activity centre' and in this context 'time limited approvals…. can be used' - Witness Statement of Nathan Stewart, para 75, Exhibit 8. I do not consider cl 4.3 relevant, in this case, as the proposed development is not, in my view, a 'major development', under SPP 4.2. SPP 4.2 and the SPP 4.2 Implementation Guidelines are Annexure 03 of Mr Stewart's Witness Statement, Exhibit 8.
[19] SPP 7.0 is supported by 'Safer Places by Design – Crime Prevention through Environmental Design Planning Guidelines' (Guidelines) published by the Western Australian Planning Commission in July 2023, Respondent's s 24 Bundle of Documents, pages 817 – 891, Exhibit 3.
Relevant provisions of the local planning policy framework are at Annexure A attached.[20]
[20] Where not quoted in the body of these reasons.
The matters in cl 67(2) of the Deemed Provisions which, in my view, are addressed in the parties' submissions and in the evidence before me, and to which I am to have due regard, are as follows:
(a)the aims and provisions of this Scheme … and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(fa)any local planning strategy for this Scheme endorsed by the Commission;
(g)any local planning policy for the Scheme area;
(h)any structure plan or local development plan that relates to the development;
…
(m)the compatibility of the development with its setting, including —
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following —
…
(ii)the character of the locality;
(iii)social impacts of the development;
…
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located[.]
Further, s 241(1) of the PD Act requires the Tribunal to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application. In this case, I observe, SPP 4.2 and SPP 7.0 are relevant State planning policies.

Procedural history and final hearing

An application for development approval for the proposed development was accepted by the Shire for assessment on 17 May 2023. It was refused on 5 July 2023 for three reasons:[21]
[21] Respondent's s 24 Bundle of Documents, page 135, Exhibit 3.
1.The proposal is inconsistent with Schedule 2, Part 9, Clause 67.2(n) of the Planning and Development (Local Planning Schemes) Regulations 2015, as the proposal will adversely impact on:
(i)The character of the locality.
2.The proposal is inconsistent with Clause 4.16 of Local Planning Policy 3.8 – Byford Town Centre Built Form Guidelines due to the following:
(i)The proposed shutters will reduce passive surveillance of the car park and street.
3.The proposal is inconsistent with Local Planning Policy 24 – Designing Out Crime due to the following:
(i)The proposal does not comply with Principle 1 – Surveillance as it reduces opportunity for surveillance and reduces sightlines to public realm areas; and
(ii)The proposal does not comply with Principle 4 – Target Hardening as the proposed shutters are not visually permeable nor sympathetic to the built form design of the building.
An Application for Review was made to the Tribunal on 19 July 2023.[22] Following mediation at the Tribunal, the matter was programmed for final hearing (hearing). The hearing was conducted on 7 and 8 February 2024 and I heard evidence from three witnesses, being the two planning experts, Ms O'Brien and Mr Stewart, and the third, Mr Radu Popescu. Mr Popescu was called by the applicant and is employed by the applicant as Director – Real Estate in Western Australia.
[22] Exhibit 1.
Prior to the hearing, each witness filed a witness statement (Mr Stewart also filed a supplementary witness statement) and at the hearing these statements were taken as their evidence-in-chief and the witnesses were crossexamined, the planning experts together.
At the commencement of the hearing on 7 February 2024, with the representatives of the parties and the witnesses,[23] I attended a view of the subject site (including part of the interior of the ALDI shop), the relevant locality and the context.
[23] Mr Popescu attended part of the view.
Also, during the hearing, the parties agreed two without prejudice draft conditions to be imposed if the Tribunal is minded to grant approval.[24] One of the agreed conditions relates to the times when the shutters are permitted to be closed, being 10.00 pm to 6.00 am the next day. The other, relates to a temporary approval period, being three years. While I accept this does not indicate a change in the parties' primary positions, I bear in mind a temporary approval period is agreed, if approval is granted. The evidence of the planning experts is also, if approval is granted it should be on a temporary basis, due to the development of the train station.[25] Considering the circumstances observed previously by the Tribunal in which a time limited approval may be appropriate,[26] I accept a time limit is likely appropriate in this case, should an approval ultimately be the 'correct and preferable decision'.
[24] ts 96 – 97, 8 February 2024.
[25] ts 43 and 83 - 84, 7 February 2024. Although, the planning experts differ in their opinion of the length of a temporary approval period.
[26] See Grace and City of Nedlands [2010] WASAT 53 at [70].

Issues for determination

The parties agree five issues arise for determination by the Tribunal in this proceeding:
(1)Is the proposed development compatible with the existing and desired future character and amenity of the locality? [27]
(2)Is the proposed development consistent with the planning policy framework applicable to the circumstances?
(3)Is the proposed development consistent with LPP 3.8?
(4)Will the ALDI shop comply with LPS 3 Sch 4 additional site and development requirement of adequate external articulation?
(5)Is the proposed development a last resort in the sense intended by LPP 24, and in any event what weight should be given to this factor?
[27] In Issue 1, I have adopted the applicant's wording, which uses 'compatible' instead of 'consistent', because 'compatibility' is used in cl 67(2)(m) of the Deemed Provisions – see [22].

I will consider and determine the issues in turn, except Issue 2 which I will return to determine after considering Issue 3 and Issue 5.[28]

Is the proposed development compatible with the existing and desired future character and amenity of the locality?
[28] Because Issue 3 and Issue 5 relate to aspects of the planning policy framework, the focus of Issue 2.

Amenity is defined in the Deemed Provisions[29] and:
means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
[29] At cl 1.
The case authorities on evaluating amenity are well-known and settled.[30] In Tempora[31] the former Town Planning Appeal Tribunal set out a threestep test in terms of evaluating amenity as follows:
(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.
[30] John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].
[31] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) at 304. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] – [22] Barker J generally endorsed that approach but added, relevantly, that consideration of amenity should take account of future amenity. This is now expressly recognised in the definition of amenity in cl 1 of the Deemed Provisions.
The respondent contends the presence of shutters obscuring extensive sections of glazing is inconsistent with existing character and amenity of the locality and not consistent with its desired future character and amenity.[32] Further, the respondent contends the proposed development, which it says is along a frontage highly visible in the public realm, tends to create a perception of alarming crime and danger and undermines the town centre as a safe and attractive place at night and removes an element of passive surveillance.[33]
[32] Respondent's SIFC, paras 30 - 31, Exhibit 2.
[33] Respondent's SIFC, paras 32 - 34, Exhibit 2.
The applicant contends the shutters are compatible in their setting (including consideration of current and future amenity)[34] and 'designed to conform with the existing façade and materiality of the ALDI [shop]', using the same basalt colour, sit in a case and not visible when not in use.[35] The applicant contends it has attempted all other options[36] and says the shutters are required to ensure the presence of broken windows do not give a perception of crime and danger in the town centre.[37]

Evaluation of amenity

[34] Applicant's SIFC, paras 23 - 27, Exhibit 6.

[35] Applicant's SIFC, para 21, Exhibit 6.

[36] Applicant's SIFC, para 19, Exhibit 6. This contention is considered at Issue 5, commencing at [106].

[37] Applicant's SIFC, para 22, Exhibit 6.

Returning to the three-step test in Tempora and considering firstly the existing character of the relevant locality, the planning experts agree the locality includes a mix of commercial and retail development. These include shops, fast food outlets, cafes/restaurants, health studios, liquor stores, offices, a bank and a service station.
Ms O'Brien's evidence, which I accept, is the town centre includes older and newer areas,[38] and the subject site (and relevant locality) is in the older part. Ms O'Brien identifies the ALDI shop and the Dome café[39] (a two-storey development) as newer developments in this older part.[40]
[38] The newer area is located to the west of the railway and outside of the relevant locality.
[39] The Dome Café is located on Lot 4, South Western Highway.
[40] Witness Statement of Heather O'Brien, para 23, Exhibit 4.
The planning experts agree the locality has buildings incorporating significant expanses of glazing, including full height glazing, and, in many cases, the glazing is obscured with signage and advertising.[41] Ms O'Brien's evidence is that despite the signage, 'there remains a degree of passive surveillance along the walkway, parking areas and the street'.[42] Mr Stewart identifies five premises with shutters, being a service station, a liquor store, a fast-food outlet and two shops.[43]
[41] Witness Statement of Heather O'Brien, para 24, Exhibit 4 and Witness Statement of Nathan Stewart, para 80, Exhibit 8.
[42] Witness Statement of Heather O'Brien, para 24, Exhibit 4.
[43] Witness Statement of Nathan Stewart, para 80, Exhibit 8.
In this case, South Western Highway, a major road, impacts the amenity of the locality with some developments (including the more recent ALDI shop and Dome café) designed to not have their main frontage (or entry) facing the highway.
Secondly, considering the manner in which the proposed development will affect existing amenity, both the planning experts identify the impact will be when the shutters are closed.[44] The planning experts, however, differ in their opinion of the effect on existing amenity of the closed shutters. Mr Stewart's evidence is:[45]
… I consider that the impact of the closed shutters on the existing character and amenity of the locality to be minimal. I have formed this view because the ALDI [shop] will be closed when the security shutters are closed. As a result, there would not be any passive surveillance from the store to the public realm anyway during these hours and there would also be CCTV and security lighting utilised at the same time, thus giving some perception of passive surveillance in this area.
[44] Witness Statement of Heather O'Brien, para 34, Exhibit 4 and Witness Statement of Nathan Stewart, para 81, Exhibit 8.
[45] Witness Statement of Nathan Stewart, para 81, Exhibit 8.
Ms O'Brien's evidence is based on a visual assessment of the character of the locality, and she asserts:[46]
… that the addition of blank shutters over the windows of Aldi during its closing hours would not be compatible or consistent with the existing locality or the design of the existing building.
In my view the blank shutters would create a hostile space, detracting from the existing character of the locality. Shutters would add no visual interest to the development or the streetscape.
[46] Witness Statement of Heather O'Brien, paras 34 - 35, Exhibit 4.
Ms O'Brien's evidence is also the proposed development is inconsistent with the established principles of 'Crime Prevention Through Environmental Design' (CPTED)[47] and she says, 'a 24 metre long stretch of blank shutters on a shop front tends to send a message, particularly to pedestrians in the evening and nighttime, of an unsafe environment'.[48]
[47] As identified in the Guidelines, Respondent's s 24 Bundle of Documents, pages 817 – 891, Exhibit 3.
[48] Witness Statement of Heather O'Brien, paras 36 – 37, Exhibit 4.
The definition of amenity requires consideration of likely future amenity.[49] The planning experts agree the future character of the town centre will continue to evolve and develop in line with expectations set out in the planning framework. Both identify the importance of the train station (anticipated completion late 2025) as a factor likely to stimulate town centre growth and development.[50]
[49] See [31].
[50] Witness Statement of Heather O'Brien, para 38, Exhibit 4, and Witness Statement of Nathan Stewart, para 82, Exhibit 8.
Ms O'Brien asserts, '[t]he policy framework sets a clear vision for a vibrant, activated, pedestrian friendly town centre by day and by night'.[51] Mr Stewart says, '[t]he locality, particularly in the southern area may eventually be redeveloped with more contemporary town centre development, with buildings brought closer to Abernethy Road and South Western Highway in accordance with the development standards set out in the [BTCLSP] and LPP 3.8. I consider there to be an aspiration for night life within the [town centre], including restaurants and bars. Multi-storey residential development or mixeduse development is also contemplated'.[52]
[51] Witness Statement of Heather O'Brien, para 39, Exhibit 4.
[52] Witness Statement of Nathan Stewart, para 82, Exhibit 8.
Thirdly, considering the degree of impact of the proposed development on the locality, Mr Stewart accepts the appearance of the shutters (when closed) may impact amenity of the town centre in the evening period.[53] As to businesses in the locality that contribute to nightlife, Mr Stewart's evidence, based on an evening inspection,[54] is one restaurant was open, but appeared to be closing, with alfresco dining furniture being packed away. Three other restaurants were closed, as was the bar 'Lavoro', immediately south of the subject site, as it does not trade Tuesday evenings, but on other evenings, it opens as late as midnight.[55]
[53] Witness Statement of Nathan Stewart, para 83, Exhibit 8. I observe the without prejudice draft condition (agreed by the parties) provides the shutters to be closed from 10.00 pm to 6.00 am the next day.
[54] Mr Stewart's witness statement confirms this occurred between 9.30 pm to 10.00 pm on 23 January 2024, being a Tuesday – Witness Statement of Nathan Stewart, para 7, Exhibit 8.
[55] ts 42 – 43, 7 February 2024.
While Ms O'Brien accepts at present there is limited activity and movement in the town centre at night,[56] her oral evidence is, 'because there's less activity, I think that emphasises the importance to make the space safe, should a pedestrian want to go and walk through there'.[57] She considers shutters a poor design outcome as they create spaces which appear hostile and add no visual interest. She says this was argued by the applicant in the original Development Application Report in 2016 which states (2016 statement):[58]
No security screens and bars are incorporated into the building design. These features are considered to degrade the appearance of the building and are not suitable or required.
[56] ts 72, 7 February 2024.
[57] ts 71, 7 February 2024.
[58] Witness Statement of Heather O'Brien, para 32, Exhibit 4.
In response, Mr Stewart (author of the 2016 statement) filed a supplementary witness statement.[59] The 2016 statement, he says, 'was made in the absence of any designs that included security shutters or bars, was a generalised statement and, in my opinion, is consistent with town planning principles'.[60] Further, he opines the 2016 statement did not consider whether the shutters would be open most of the day, concealed when open, the same colour as the ALDI branded exterior and now proposed in response to the vandalism and theft experienced. I accept the 2016 statement (while applicable to the ALDI shop and conveys an opinion with a degree of clarity), may not have considered at least some of these things, including the subsequent occurrences of vandalism, attempted break-in and break-in. I therefore accord it limited weight in determining this issue and this case.
[59] Exhibit 10.
[60] Supplementary Witness Statement of Nathan Steward, para 4, Exhibit 10.
Mr Stewart also asserts the closed shutters are a preferable amenity outcome to broken windows being visible in the town centre, because if it is necessary to install shutters to prevent vandalism and theft from closed businesses, he considers, 'it of benefit to install the shutters as these would have a lesser impact on the amenity of the locality'.[61] However, considering the oral evidence of Mr Popescu, that damaged glazing is repaired in a short period (three days to a week),[62] I do not accept the proposition one or two damaged glazing panels (which I accept has occurred eight times) has a greater negative amenity impact than covering the entire glazed shopfront each night. This is because repairs are made quickly and, on the evidence before me, damage is limited to very few of the panels of the glazed shopfront.[63]

Findings – Issue 1

[61] Witness Statement of Nathan Stewart, para 83, Exhibit 8.

[62] ts 27 – 28, 7 February 2024.

[63] Applicant's Bundle of Documents, pages 1 to 5, Exhibit 7. This Bundle of Documents shows five photos of damaged glazing at the subject site.

Considering the three-step test in Tempora and the evidence before me, I am satisfied, and I find, the proposed development (when closed) is not compatible with the existing and desired future character and amenity of the locality for five reasons.
First, the existing character of the locality is commercial with commercial and retail land uses and a mix of older and new buildings of one to two storeys in height. Full height glazing is common to the frontages of premises in the locality. However, while I accept shutters are present at five premises, they do not strongly contribute to the character or predominate in the locality.
Second, the proposed development will have a negative effect on the visual amenity of the locality. This is because, when closed, the shutters will transform the existing glazed shopfront into a continuous blank façade at night. This will be visible from South West Highway and from George Street and this is, in my view, inconsistent with the existing amenity where shutters are not a dominant window treatment at night.
Third, (and related to the second reason) the desired future character is reflected in contemporary buildings, being the ALDI shop and Dome café, and the shutters which cover the glazed shopfront, are not a treatment consistent with the desired future character of the locality because they create an extensive blank and unarticulated façade, visible from South Western Highway and George Street.
Fourth, and while I accept there currently is limited nightlife in the locality, there is one business adjoining the subject site with trading hours until midnight on some nights. Considering current amenity, the proposed development, on the evidence before me, does not assist providing a safe environment for pedestrians or contribute to vibrancy in the locality.
Fifth, considering future amenity which, the planning experts agree, will continue to evolve with (and be stimulated by) completion of the train station, the proposed development does not contribute to safety in the station's walkable catchment (an area, I accept, is a focus for development). Importantly, the proposed development abuts an existing pedestrian path in the walkable catchment connecting South Western Highway and George Street.

Is the proposed development consistent with the planning policy framework applicable to the circumstances?

The planning policy framework includes:
(a)LP Strategy;
(b)BDSP; and
(c)BTCLSP.
LPP 3.8 and LPP 24 are, I accept, also local planning policies applicable in this case. These are considered later under more specific issues – LPP 3.8 at Issue 3[64] and LPP 24 at Issue 5.[65] My findings to Issue 2 are, therefore, provided later at [126] - [132].
[64] Commencing at [74].
[65] Commencing at [106].
The respondent contends the shutters, when closed, are inconsistent with the local planning framework including:[66]
(a)LP Strategy (at cl 3.1, cl 3.1.1, cl 3.1.2, cl 3.5, cl 3.5.1 and cl 5.1) because the closed shutters compromise achievement of a high-quality urban design outcome, fails to enhance a sense of place, tends to engender a perception of crime and danger, discourages pedestrian activation and active modes of transport, and impedes the creation of a vibrant and well patronised activity centre.
(b)BDSP (at cl 1.1.3) as the closed shutters compromise achievement of a contemporary and connected place, a thriving district hub, a vibrant town centre and does not achieve a highquality shopfront environment or promote legibility of the urban environment (considering the context of the subject site with the train station and residential areas).
(c)BTCLSP (at cl 1.8 and cl 1.12.1) as the closed shutters compromise a permeable and efficient movement network, compromises the objective of achieving nighttime activity, are inconsistent with the desired amenity for the retail core area of the town centre and with a 'high-quality mixed use environment accommodating ground level retail'.
[66] Respondent's SIFC, para 35, Exhibit 2. Relevant clauses are at Annexure A.
The applicant contends the closed shutters are consistent with the planning policy framework and that the ongoing presence of broken windows greatly increases the perception of crime, impacts the sense of place and discourages alternative modes of transport. The applicant also contends the proposed development will maintain an equivalent level of surveillance, because the ALDI shop has ceased trading when the shutters are closed.[67]
[67] Applicant's SIFC, paras 34 – 36, Exhibit 6.
I will now consider the evidence of the planning experts as to the LP Strategy, the BDSP and the BTCLSP.

LP Strategy

In relation to the LP Strategy (cl 3.1 – Urban areas and Townsites) Mr Stewart says when the shutters are closed the remainder of the building quality remains unchanged. He asserts, 'I do not think the impact of the closed shutters is significant and a high quality urban design outcome is still achieved'.[68] Ms O'Brien says the town centre 'is one of two key growth urban centres/town sites on which the greatest town planning focus and priority have been given, with an explicit focus on high quality urban design outcomes'.[69] I accept this evidence of Ms O'Brien because of the existence of LPP 3.8 (which I will come to at Issue 3)[70] which 'has been prepared to facilitate and coordinate desired built form and development outcomes within the [BTC]LSP area'.[71]
[68] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[69] Witness Statement of Heather O'Brien, para 40, Exhibit 4.
[70] Commencing at [74].
[71] Respondent's s 24 Bundle of Documents, page 757, Exhibit 3.
When considering cl 3.1.1 of the LP Strategy which addresses urban design, Mr Stewart relies on earlier evidence relating to cl 3.1 and identifies the contribution of the eastern façade of the ALDI shop, which he says incorporates high quality materials and landscaping over trellises.
Under cross-examination about the eastern façade, Ms O'Brien opines:[72]
I would agree with Mr Stewart's comment the eastern façade of the [ALDI shop] does have a high-quality design. I don't think that compensates for the adverse impact that the shutters would have on the – on the northern elevation. It's the main elevation of the building. The entrance to the building is quite prominent. It shouldn't be required to have a reduced level of visual interest because the eastern elevation looks – has good design[.]
[72] ts 62, 7 February 2024.
I agree, the quality of the existing eastern façade is not, in my view, a material consideration in this case. This is particularly so because I observe the eastern façade[73] (facing South Western Highway) does not contain windows (or major openings) and the northern glazed shopfront provides (in its entirety) a major opening which is also the customer entry/exit.
[73] Witness Statement of Heather O'Brien, Attachment HJO 3 – photographs 'Aldi Store as viewed from South Western Highway', Exhibit 4.
Clause 5.0 of the LP Strategy addresses 'Prosperity' and cl 5.1 'Activity Centres', identifies the town centre as a 'District Centre'.[74] Mr Stewart, when considering cl 5.1 (which includes Table 22 – Activity Centre: Strategy and Actions Summary)[75] says when the shutters are closed the ALDI shop is also closed and 'any activation at street level would be from other uses in the area'.[76] Passive surveillance, he says, given the ALDI shop does not operate overnight, 'is provided in other ways such as lighting and CCTV' and the shutters do not prevent pedestrian movements between George Street and South Western Highway.[77] Ms O'Brien's evidence is, and I accept, there is no external lighting to the pedestrian pathway adjacent to the glazed shopfront/shutters[78] and, as the applicant identifies, the external lighting is switched off one hour after closing.[79]
[74] Respondent's s 24 Bundle of Documents, pages 333 – 334, Exhibit 3. I observe this designation is consistent with SPP 4.2, Appendix 1 (at page 17), Witness Statement of Nathan Stewart, Annexure 03, Exhibit 8.
[75] Respondent's s 24 Bundle of Documents, page 335, Exhibit 3.
[76] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[77] Ibid.
[78] Witness Statement of Heather O'Brien, para 50, Exhibit 4.
[79] Applicant's SIFC, para 15, Exhibit 6.

Ms O'Brien's evidence also considers cl 5.1, and she asserts, '[i]n the context of 'prosperity', businesses and land uses should not just be focused on their own perceived operational needs but should be conscious that they affect the attractiveness to others of setting up and succeeding in business'.[80] She says closed shutters send a message of an unsafe and unwelcoming environment which subtly deters other potential businesses and land uses from establishing and/or flourishing.[81]
[80] Witness Statement of Heather O'Brien, para 40, Exhibit 4.
[81] Ibid.
Given the town centre context of the ALDI shop, the evidence of Ms O'Brien is that, and I agree, it is necessary to consider the impact of the closed shutters beyond the operational needs of one business. This is not a case where the ALDI shop operates in a large centre complex where, as Mr Popescu confirms in oral evidence, security arrangements commonly are taken care of by shopping centre security.[82] Prosperity in a traditional town centre requires a wider perspective, one which considers (in addition to the operational needs of a business and the mix of commercial land uses) a range of design factors that combine to achieve a high quality built environment with an amenity which, by design, optimises safe pedestrian movement.[83]

BDSP

[82] ts 23, 7 February 2023.

[83] See, for example, SPP 7.0 at cl 8 Safety, Respondent's s 24 Bundle of Documents, page 816, Exhibit 3. Further, this is consistent with the approach adopted by the former Town Planning Appeals Tribunal in Binocular Telescope & Optical World and Town of Vincent [2004] WATPAT 133 (Binocular Telescope) at [56] – [58], a case which also involved shutters in a traditional town (district) centre.

The BDSP at cl 1.1.3 provides 'Vision and Objectives'.[84] The planning experts agree the objective for provision of 'high quality shop front environments' is relevant. Mr Stewart considers 'that whilst the windows will be covered when the shutters are closed, the [ALDI shop] would have ceased trading at that time and any activation at street level would be from other uses in the area'.[85] Ms O'Brien asserts the closed shutters would not, in her view, be considered a high quality shopfront environment.[86] Her reasoning is explained when considering parts of LPP 3.8 addressing façade design (LPP 3.8 - R4.3.1, R4.3.3, R4.7.1, R4.16.5 and R4.16.7).[87]
[84] See Annexure A.
[85] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[86] Witness Statement of Heather O'Brien, para 40, Exhibit 4.
[87] Witness Statement of Heather O'Brien, para 44, Exhibit 4.
Considering this explanation, I prefer Ms O'Brien's evidence that when closed, the shutters will not present a high-quality shopfront environment. I also observe the objective does not differentiate between different times (day or night), or if a premises is closed or open. Further, the significant extent of the closed shutters covering the glazed shopfront is a strong factor, in my view, weighing against approval in this case because the closed shutters cover entirely what the planning experts agree is, at present, a high-quality shopfront.

BTCLSP

Considering cl 1.8 (Objectives), Mr Stewart opines:[88]
The ALDI [shop] is open during the day and evening hours most days. This type of use (a supermarket) is a key attractor in an activity centre. In order to continue street level activation outside of normal trading hours, other uses (such as restaurants, bars, gyms) and residential development are required. These other uses would generate some night activity. The proposal does not prevent other uses from opening and the proposal would not change the level of activity at the ALDI [shop] since it would have ceased trading at that time and any activation at street level would be from other uses in the area. Therefore, it is my view that the proposal satisfied this objective.
[88] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
Ms O'Brien says the BTCLSP includes an objective which identifies a coordinating function, and this supports an idea that departing from the objectives and provisions for one development can compromise the realisation of the vision. Ms O'Brien also asserts, and I accept, the BTCLSP includes an objective that the town centre is to be developed with nighttime amenity in mind. Ms O'Brien opines that at night the shutters would be noticed by visitors 'as an unattractive and uninviting feature'.[89]
[89] Witness Statement of Heather O'Brien, para 40, Exhibit 4.
As to cl 1.19 (Priority frontages for activated and sleeved development), Mr Stewart says when the shutters are closed the ALDI shop will have ceased trading and there is no internal activation to be observed from outside and, because of this, he says this provision is satisfied. While I accept a shop may have window treatments (such as internal blinds) which obscure or prevent visibility to the interior when not trading, the proposed development, in my view, has a greater impact because it covers the glazed shopfront making it illegible. Therefore, I do not accept the proposed development meets cl 1.19 and I also observe this clause links to LPP 3.8[90] (considered next at Issue 3).
[90] Expressed as 'Byford Town Centre Design Guidelines LPP 31', which (I presume) reflects an earlier version and/or numbering of LPP 3.8.
Having considered the relevant provisions of the planning framework (including LP Strategy, BDSP and BTCLSP) Ms O'Brien concludes:[91]
… the key themes that repeatedly emerge include the provision of high quality shop fronts and streetscapes, the activation of spaces and the creation of a vibrant and safe town centre. I hold the view that blank security shutter[s], notwithstanding their use, after opening hours, are inconsistent with the prevailing themes throughout the planning framework.
[91] Witness Statement of Heather O'Brien, para 41, Exhibit 4.
Mr Stewart's written evidence, I observe, does not provide a similar reflective opinion. Nevertheless, I understand his collective evidence on this issue to be - the proposed development, in the circumstances of this case, sufficiently meets the planning policy framework to warrant approval, at least for a temporary period, principally because it will be closed only at night when the ALDI shop has ceased trading and when limited activity occurs in the locality.
As mentioned, findings to Issue 2 will be provided later at [126] – [132] (after considering Issue 3 and Issue 5).

Is the proposed development consistent with LPP 3.8?

The respondent contends the proposed development is inconsistent with a 'high quality mixed use environment accommodating ground level retail', and for public spaces to be framed by welcoming architecture and well-connected by pedestrian links (and therefore inconsistent with the Built form concept at cl 2.2).[92] The respondent also contends because the proposed development tends to engender a perception of crime and danger, it compromises connectivity between attractions and thereby achievement of an integrated town centre (inconsistent with cl 3.1, Local character).[93]
[92] Respondent's SIFC, para 35 (points 26 – 27), Exhibit 2.
[93] Respondent's SIFC, para 35 (point 28), Exhibit 2.
Further, the respondent contends the proposed development is inconsistent with more specific provisions in the following respects:[94]
[94] Respondent's SIFC, para 36, Exhibit 2.
(1)uniform blank shutters are not consistent with any of the recommended materials, textures and forms identified in the 'Design Source' section (R3) of [LPP 3.8];
(2)architecturally, the proposal would not reinforce a contemporary rural town feel: [LPP 3.8] [cl] R4.1.1;
(3)the styling would not be contemporary, and would not reference the simple forms and styling of traditional rural architecture: [LPP 3.8] [cl] R4.1.1;
(4)the proposal is inconsistent with the proscription of extensive expanses of blank and flat facades facing the public realm, and fails to articulate at intervals of six to ten metres: [LPP 3.8] [cl] R4.3.1;
(5)as a quasi-corner-development, the proposal would fail, through incorporation of any design element, to reinforce both street frontages so as to enhance the streetscape and add visual interest: [LPP 3.8] [cl] R4.3.2;
(6)whilst the security shutters are lowered, the development would fail to have a clear and identifiable building entrance: [LPP 3.8] [cl] R4.7.1;
(7)whilst the security shutters are lowered, the building would fail to provide direct physical and visual connections between street and entry: [LPP 3.8] [cl] R4.7.2;
(8)whilst the security shutters are lowered, building entrances would not be distinguishable and would not be under passive surveillance: [LPP 3.8] [cl] R4.16.5;
(9)the proposal would create places where intruders may loiter or be concealed, due to the lack of 'cross-corner' visual permeability or perceived visual permeability: [LPP 3.8] [cl] R4.16.7;
(10)since it is evident that part of the purpose of the security shutters is to prevent vandalism to the shopfront, it can be inferred that vandalism to the security shutters themselves would be of much lower priority to the [applicant] – whereas building resistance to vandalism is a policy requirement of [LPP 3.8] [cl] R4.16.8;
(11)the proposal negates, during closing hours, existing throughblock site line connections: [LPP 3.8] R4.16.12;
The applicant contends the proposed development is consistent with LPP 3.8 and identifies the relevant design objective as cl 4.16 (Crime prevention) and policy requirement R4.16.2.[95] The applicant contends the glazed shopfront (and the closed shutters) faces the car park (and setback 13.5 metres from George Street and 7 metres from South Western Highway) and that the windows on the western side of the building (facing George Street) will provide a perception of passive surveillance to this street. The applicant also contends because the ALDI shop is not staffed at night (and CCTV and security lighting are in place) there will be no change to the level of passive surveillance.[96]

Consideration of the proposed development against LPP 3.8

[95] The reference to R4.16.2 appears an error, as this 'policy requirement' relates to the use of bay windows and balconies, which are not applicable in this case. I have taken this to be a reference to R4.16.12 'Through block connections must provide a clear sightline from one end to the other, for surveillance and accessibility. Through block connections must have a minimum width of 3.0 metres, clear of any obstructions'. See Respondent's s 24 Bundle of Documents, page 774, Exhibit 3.

[96] Applicant's SIFC, paras 37 – 39, Exhibit 6.

As to cl 4.1 (Architectural character) and policy requirement R4.1.1, Mr Stewart concedes the closed shutters, 'may be perceived as having an impact on the amenity'. However, he considers the impact of the closed shutters to be less than broken windows in a shopfront, which he says the applicant identifies has occurred eight times. However, as I observed at Issue 1, I do not accept the amenity impact of the proposed development to be less than broken windows, for reasons already explained.[97] Ms O'Brien says in terms of architectural character (at cl 4.1) none 'include or are consistent with uniform blank shutters'.[98] Considering policy requirement R4.1.1, I accept this evidence, and therefore the proposed development is inconsistent with this aspect of LPP 3.8.
[97] See [47].
[98] Witness Statement of Heather O'Brien, para 44, Exhibit 4.
As to cl 4.3 (Building articulation and Building materials) and policy requirement R4.3.6 (addressing materials for exterior walls), Mr Stewart says the existing development complies (which I accept it does), and because the shutters cover the glazed shopfront only at certain times, he considers compliance with this provision is achieved.[99] Ms O'Brien opines the glazed shopfront provides a mix of materials and articulation but the proposed development does not 'add any articulation or colour to the existing building' and removes the desired articulation resulting in a flat façade, contrary to LPP 3.8.[100] Considering this policy requirement, I accept this evidence of Ms O'Brien, and the proposed development is therefore inconsistent with this aspect of LPP 3.8. Further, I observe R4.3.6 does not provide for façades to be covered (even temporarily) at differing times. The robustness of the glazed shopfront is a design consideration relating to building materials and is considered later at [86] and at Issue 5.[101]
[99] Witness Statement of Nathan Stewart, para 84, Exhibit 4.
[100] Witness Statement of Heather O'Brien, para 44, Exhibit 4.
[101] Commencing at [106].
Considering cl 4.7 (Entrances and Pedestrian access) and policy requirement R4.7.1, Mr Stewart concedes with the shutters closed, the ALDI shop 'may be somewhat less identifiable because the entrance will be covered'.[102] This notwithstanding, he is of the opinion that for anyone observing, 'it would be a fair and reasonable assumption that they would understand the entrance to the building is behind the shutters' and further, when the shutters are closed, the ALDI shop will have ceased trading and people will not be trying to gain access.[103] Ms O'Brien says of the walkway (abutting the proposed development) which provides pedestrian connectivity from South Western Highway to George Street, that this connection will be further utilised when the train station is completed and the proposed development reduces the perception of passive surveillance.[104]
[102] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[103] Ibid.
[104] Witness Statement of Heather O'Brien, para 44, Exhibit 4.
'Passive surveillance' is defined in the Guidelines as follows:[105]
also known as "natural/informal surveillance", passive surveillance is the incidental or informal surveillance of a location through overlooking from neighbouring uses ('eyes on the street'). This approach relies on clear sightlines, lighting and considered urban design to avoid the creation of hidden or isolated spaces.
[105] Respondent's s 24 Bundle of Documents, page 887, Exhibit 3.
Mr Stewart's evidence as to cl 4.9 (Building orientation) and policy requirements R4.9.1 and R4.9.2, is that the entrance to the ALDI shop is towards the car park. Mr Stewart says when the shutters are closed the ALDI shop will have ceased trading and there will be no staff to provide surveillance and passive surveillance is provided by existing security lighting and CCTV.[106] I do not accept this evidence for two reasons. First the evidence of Mr Popescu[107] and Ms O'Brien[108] indicates there may be times when staff are in the ALDI shop after hours. On those occasions passive surveillance can be provided through the glazed shopfront. Second, passive surveillance attributed to existing lighting is very limited because, as mentioned,[109] the lighting to the pathway (adjacent to the glazed shopfront) is turned off one hour after the ALDI shop closes. As to the applicant's contention that a perception of passive surveillance is maintained by windows facing George Street,[110] these windows are highlight windows and do not provide the ability to, or perception of a, view to George Street or to the pedestrian pathway adjoining the glazed shopfront.[111]
[106] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[107] Witness Statement of Radu Popescu, para 9, Exhibit 9.
[108] ts 52, 7 February 2024.
[109] See [63].
[110] See [76].
[111] Witness Statement of Nathan Stewart, Annexure 5 - photograph 3, Exhibit 8 and Witness Statement of Heather O'Brien, Attachment HJO3 – photograph 'Subject site: Aldi Store: west elevation', Exhibit 4.
Policy requirement R4.9.3 provides for transparent elements to make up at least 60% of a ground level façade to make the inside easily discernible to the passer by. Mr Stewart's evidence is that the existing glazed shopfront complies with this requirement, and that variations were approved (in 2016) for the eastern and western façades because of back of house and shelving requirements. Mr Stewart concedes with the shutters closed, the existing building 'would not be compliant with this provision'. However, in his opinion, a variation is justified because of the vandalism and theft that have occurred since the building opened and because there is not an established nightlife in the town centre.[112]
[112] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
I accept a variation to this provision is required if the proposed development is approved. Further, I accept, a policy cannot replace the discretion available to a decision-maker, in that a policy cannot be inflexibly applied. However, as Barker J observes in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 [2002] WASCA 276 (Clive Elliot Jennings) at [24], 'the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.
Incidents of vandalism and theft and the limited nightlife in the town centre at present may, I accept, provide a basis (or reason) to consider varying policy requirement R4.9.3 as to the percentage of transparent elements in the façade (at least to some extent). However, the closed shutters will cover the entire glazed shopfront, in circumstances where other parts of the policy framework (in LPP 24) require 'target hardening' to be used as sparingly as possible and as a last resort. This is considered at Issue 5.[113] Further, LPS 3 (Sch 4) requires the external building to be adequately articulated, and the closed shutters will cover the articulation of the glazed shopfront. This is considered at Issue 4.[114]
[113] Commencing at [106].
[114] Commencing at [93].
At cl 4.16 (Crime prevention), policy requirement R4.16.7 requires the avoidance of entrapment spots or places where intruders may loiter or be concealed. Here, Mr Stewart says, '[t]he entrance of the building, even with the [shutters] being closed, is still visible from South Western Highway and George Street'.[115] I do not accept this evidence because the closed shutters cover the glazed shopfront and entirely obscure identification of the entry. Ms O'Brien's evidence, which I accept, is the closed shutters will create a secluded area likely to encourage anti-social behaviour and not enhance personal safety of pedestrians[116] because, as the applicant accepts, '[w]hen closed, the security shutters will not allow sightlines into the building'.[117] This, in my view, impedes views through the two corners of the glazed shopfront, adjacent to the pedestrian path and creates secluded areas.
[115] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
[116] Witness Statement of Heather O'Brien, para 44, Exhibit 4.
[117] Applicant's SIFC, para 32, Exhibit 6.
Policy requirement R4.16.8 relevantly provides '[b]uildings shall be constructed from materials that are resistant to vandalism'.[118] Here I observe, the evidence of Mr Stewart does not address the existing glazed shopfront being the choice of material used.[119] The evidence of Mr Popescu is the ALDI shop is a generic store design and the use of glazing across the whole shopfront is the preferred look and feel for ALDI because it creates an open and inviting shopfront for customers and provides natural light.[120] Ms O'Brien's evidence is that other businesses in the town centre appear to successfully manage without approaching the Shire to request shutters and she identifies, and I accept, '[e]xtensive glazing is inherently more susceptible to vandalism than other more robust materials'.[121] In this case, as the glazed shopfront is existing, evidence as to remedial measures is considered in the context of LPP 24 at Issue 5.[122]

Findings – Issue 3

[118] Respondent's s 24 Bundle of Documents, page 774, Exhibit 3.

[119] Witness Statement of Nathan Stewart, para 84, Exhibit 8.

[120] ts 22, 7 February 2024.

[121] Witness Statement of Heather O'Brien, paras 44 and 54, Exhibit 4.

[122] Commencing at [106].

The proposed development is, I find, not consistent with LPP 3.8 for five reasons.
First, the closed shutters negatively impact the architectural character of the existing ALDI shop and renders its character inconsistent with the desired 'contemporary rural town feel' described in cl 4.1 – Architectural character and policy requirement R4.1.1.
Second, the closed shutters are contrary to cl 4.3 - Building articulation and Building materials and policy requirement R4.3.6, because the shutters are not an external material identified and, when closed, result in a blank and unarticulated façade.
Third, the closed shutters do not enhance pedestrian access in the town centre, contrary to cl 4.7 (Entrances and Pedestrian access) and policy requirement R4.7.1 because the resulting blank façade does not enhance the pedestrian connection that exists on the subject site between South Western Highway and George Street and removes opportunities for passive surveillance and the ability to identify the entry of the ALDI shop (notwithstanding trading has ceased when the shutters are closed).
Fourth, the closed shutters do not provide any transparency contrary to cl 4.9 (Building orientation) and policy requirement R4.9.3 which requires ground level facades to have at least 60% being transparent elements.
Fifth, on the evidence before me, the closed shutters have the potential to create places where people may loiter, contrary to cl 4.16 (Crime prevention) and policy requirement R4.16.7 because concealed areas are created at each end of the existing pedestrian pathway and views through the glazed corners of the shopfront are removed by the shutters.

Will the ALDI shop comply with LPS 3 Sch 4 additional site and development requirement of adequate external articulation?

The respondent contends the proposed development is not consistent with LPS 3 at cl 32 and Sch 4 and that it compromises objectives of the District Centre zone (at cl 16, Table 2) because it engenders a perception of crime and danger or is directly inconsistent, as it compromises activity and accessibility at street level, including pedestrian links with public transport.[123]
[123] Respondent's SIFC, para 38, Exhibit 2
The applicant contends the shutters do not cause the ALDI shop to be inconsistent with these provisions of LPS 3 because they are closed only outside of trading hours.[124]

Consideration of Sch 4 additional site and development requirements

[124] Applicant's SIFC, para 31, Exhibit 6.

The relevant 'additional site and development requirement' for the District Centre zone in Sch 4 is as follows:[125]
…
•The external building shall be adequately articulated with varying colours and materials, major openings and awnings to the satisfaction of the local government in accordance with the objectives of the District Centre zone.
…
[125] Respondent's s 24 Bundle of Documents, page 207, Exhibit 3.
The relevant objectives of the District Centre zone are as follows:[126]
[126] Respondent's s 24 Bundle of Documents, page 150, Exhibit 3.
•Provide a community focal point for people, services, employment and leisure that are highly accessible and do not adversely impact on adjoining residential areas.
•Provide for district centres to focus on weekly needs and services for a wider district catchment.
…
•Ensure a mix of commercial and residential development, which provides for activity and accessibility at the street level and supports the provision of public transport and pedestrian links.
…
Ms O'Brien's opinion is the existing building meets the provision of Sch 4.[127] However, she asserts with the closed shutters the ALDI shop would not be consistent with Sch 4 because they remove the appearance of the major opening and do not add varying colours or materials.[128]
[127] Witness Statement of Heather O'Brien, para 46, Exhibit 4.
[128] Witness Statement of Heather O'Brien, para 47, Exhibit 4.
Mr Stewart's evidence is that with the shutters closed, the existing building will still comply with Sch 4 'because the major openings will still exist, but the major openings will be covered …'.[129] Mr Stewart also considers one zone objective relevant, being:
•Ensure a mix of commercial and residential development, which provides for activity and accessibility at the street level and supports the provision of public transport and pedestrian links.
[129] Witness Statement of Nathan Stewart, para 84, Exhibit 8.
He concludes the closed shutters comply with the objective because activity in the ALDI shop has ceased. However, this evidence does not, in my view, squarely address the impact of the closed shutters on the pedestrian pathway (between South Western Highway and George Street).
Mr Stewart's evidence also does not address the planning intent of the provision. The plain meaning in Sch 4 is not consistent, in my view, with covering the articulation (the entire glazed shopfront, in this case) on a regular basis, even temporarily. The Sch 4 provision, when understood 'as a whole and in the context which, and for the purpose which, it was enacted'[130] is, in my view, for the articulation of the building to be a permanent and observable feature.
[130] See Newco Mills Pty Ltd and the Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160 at [32].
I therefore prefer the evidence of Ms O'Brien.

Findings – Issue 4

I find the existing ALDI shop would not comply with the relevant Sch 4 additional site and development requirement of adequate articulation, if the shutters are installed (and closed when the ALDI shop has ceased trading) for three reasons:
First, as the planning experts agree, the articulation of the glazed shopfront, and the major opening which comprises the whole of this façade (which contains the entry) will be entirely covered by the closed shutters.
Second, the closed shutters result in a blank appearance for the shopfront with no articulation, no variation in colour or materials and no distinguishable major opening.
Third, the additional site and development requirement in Sch 4 does not specify the required articulation (including varying colours, materials, and major openings) can be entirely covered at certain times, such as when the premises may be closed. The clear planning intent of the Sch 4 provision is for the articulation of the building to be a permanent and observable feature.

Is the proposed development a last resort in the sense intended by LPP 24, and in any event what weight should be given to this factor?

LPP 24 has three objectives:[131]
•Encourage urban development within the Shire to incorporate designing out crime principles.
•Provide guidance in relation to built outcomes that support the reduction in actual and perceived crime and anti-social behaviour.
•Offer guidance on design and assessment of planning proposals.
[131] Respondent's s 24 Bundle of Documents, page 892, Exhibit 3.
I observe this approach to design of the urban environment, which aims to minimise crime, is consistent with (and supported by) SPP 7.0 (at cl 8 Safety)[132] and the Guidelines, which aim through the application of CPTED to 'minimise crime and fear of crime for enhanced community safety'.[133]
[132] Respondent's s 24 Bundle of Documents, page 816, Exhibit 3.
[133] Respondent's s 24 Bundle of Documents, pages 822, Exhibit 3.
Clause 2.0 of LPP 24 provides 'Background', and states:[134]
[134] Respondent's s 24 Bundle of Documents, page 892, Exhibit 3.
Amongst many considerations during development, the Shire of Serpentine Jarrahdale recognises the need to adopt environmental design principles to reduce the likelihood of crime occurring.
Crime Prevention Through Environmental Design or CPTED is based on the idea that peoples' behaviour is influenced by the design of their environment. This can occur on both perspectives whether it be the perception of safety or conversely the likelihood of committing a crime.
Supporting the reduction in anti-social behaviour through appropriate design decisions improves the liveability, vitality, accessibility, diversity and social wellbeing of the Shire's communities. This is particularly important for vulnerable groups as the fear of crime inhibits their ability to move freely and enjoy the opportunities that should be available to everyone.
There is no prescriptive method to designing out crime and as such, each planning application will need to be dealt with on a case by case basis. However, there are five key principles which inform crime prevention through environmental design in all instances. These are:
•Surveillance.
•Access control.
•Territorial reinforcement.
•Target hardening (securing measures).
•Management and maintenance[.]
Relevantly, LPP 24 addresses target hardening at cl 6.7 (principle 4) which states:[135]
Target Hardening is often provided for at the detailed planning stage and usually includes security doors, roller shutters, security cameras and security fencing. The objective is to ensure that buildings are secure and access is denied to offenders. By incorporating these elements into the urban form it can have an adverse affect on the behaviour that is being discouraged. It is important to strike a balance between designing out crime principles and together with other outcomes to ensure the amenity of an area is not adversely affected.
If required, target hardening elements including fencing and roller shutters should be utilised as sparingly bas [sic] possible, be visually permeable and sympathetic to the built form design. Target hardening should be [the] last approach taken, after all other designing out crime principles have been utilised.
[135] Respondent's s 24 Bundle of Documents, page 896, Exhibit 3.
This provision also contains relevant 'micro principles':[136]
[136] Ibid.
•Should be based on and justified by individual need assessment.
•Incorporate shuttering and window barring as integral design elements where openings are susceptible to break-in and concealed crime exit.
…
•Install closed circuit television where natural surveillance is poor.
…
The respondent contends the applicant's choice of glazing as a façade material, while not inconsistent with LPP 3.8, makes the shopfront somewhat vulnerable to damage, vandalism and break-in and there is nothing in LPP 3.8 requiring such extensive use of glazing.[137] The respondent also contends placement of alcohol in immediate proximity of the entry/exit of the ALDI shop (close to the glazed shopfront) has significantly contributed to the premises being a target for break-in and theft.[138] As to the vulnerability of the glazed shopfront, the respondent contends other remedies exist, including revising the design and materials and/or relocating or target hardening the internal location of alcohol.[139] The respondent also contends that even if target hardening (as is proposed) is regarded as a last resort, the factor should, on its overall merits, be afforded less weight than the other countervailing considerations which the respondent has identified and relies upon.[140]
[137] Respondent's SIFC, paras 39 – 40, Exhibit 2.
[138] Respondent's SIFC, para 42, Exhibit 2.
[139] Respondent's SIFC, para 43, Exhibit 2.
[140] Respondent's SIFC, para 44, Exhibit 2.
The applicant contends the proposed development is consistent with LPP 24 because it is a last resort and complies with the three relevant 'micro principles' (in cl 6.7),[141] together with use of security lighting and security patrols, and that LPP 24 should be given due regard under cl 67(2)(g) of the Deemed Provisions.[142]

Is the proposed development a last resort as LPP 24 intends?

[141] See [110].

[142] Applicant's SIFC, paras 45 – 47, Exhibit 6.

As to the security measures implemented by the applicant, Mr Popescu's evidence is:[143]
Since the store opened in 2018, the store has experience[d] anti-social behaviour which we have tried to resolve. The following security measures have been implemented during this time:
•Installation of a CCTV system prior to the initial opening of the store.
•Installation of additional security cameras to try deterring further incidents.
•Employment of security guards for business and non-business hours.
•Use of security lighting outside of business hours.
•Security alarm system to be armed when the store is closed, and staff have left the building.
[143] Witness Statement of Radu Popescu, para 8, Exhibit 9.
Ms O'Brien is of the opinion the shutters are not a 'last resort',[144] and identifies four concerns. Firstly, she says limited information is provided by the applicant as to other methods considered to address incidents of vandalism.[145] Considering the evidence of Mr Popescu which, in my view, is limited in detail, I agree. For example, no information is provided on the location, or number, of additional security cameras (and this was not identified in evidence at the hearing) or the extent of use of security guards, or of any other measures tried since April 2022, when the first incident of vandalism to the glazed shopfront occurred.[146]
[144] Witness Statement of Heather O'Brien, para 58, Exhibit 4.
[145] Witness Statement of Heather O'Brien, para 50, Exhibit 4.
[146] Applicant's SIFC, para 8, Exhibit 6.
Secondly, she says LPP 24 identifies passive surveillance as one of the most important principles in crime prevention and, notwithstanding the ALDI shop is closed at night, the glazed shopfront increases the perception of surveillance. Here, Ms O'Brien also identifies lighting to the pathway, which abuts the glazed shopfront, is of a low level (and supports this observation with photographs taken at night)[147] and she opines increasing the level of external lighting (combined with the glazed shopfront) would increase the perception of surveillance and make the space feel safer for pedestrians.[148]
[147] Photographs - 9.30pm, 5 November 2023, Witness Statement of Heather O'Brien, para 50, Exhibit 4.
[148] Witness Statement of Heather O'Brien, paras 52 - 53, Exhibit 4.
Thirdly, Ms O'Brien accepts CCTV cameras are in operation (two were observed at the view, one being at the glazed shopfront)[149] but says they are not clearly visible to pedestrians and could be made more visible and prominent.[150]
[149] ts 15, 7 February 2024.
[150] Witness Statement of Heather O'Brien, para 54, Exhibit 4.
Fourthly, Ms O'Brien asserts the choice of extensive glazing (which she says is inherently more susceptible to vandalism) gives rise to certain responsibilities. She says, 'there is no requirement for the very significant expanse of glazing' and a redesign of the shopfront, to remove an amount of glazing, is an option in this case.[151]
[151] Witness Statement of Heather O'Brien, paras 55 - 56, Exhibit 4 and ts 63, 7 February 2024.
Mr Stewart accepts cl 6.7 is to be interpreted to provide for target hardening (such as the proposed development) 'where all other possible options have failed'. He also says the other test under LPP 24 is striking a balance between designing out crime principles with other outcomes to ensure the amenity of an area is not adversely affected.[152] When considering the proposed development, Mr Stewart asserts:[153]
In my opinion as a town planner, if it can be demonstrated that a proponent for a development can comply with the provisions of LPP 24 for a development, then the development does experience crime and the proponent has taken steps to attempt to reduce that crime but is unsuccessful, then I think that security shutters should be considered as an appropriate response. In this instance, the original ALDI [shop] development complied with the relevant provisions of LPP 24. However, the development experienced crime through vandalism and theft. The Applicant appears to have taken mitigation measures to resolve this which have been unsuccessful and is now proposed security shutters. I am of the view that the Applicant has demonstrated an appropriate response and I think the proposed security shutters are a last resort.
[152] Witness Statement of Nathan Stewart, para 88, Exhibit 8.
[153] Witness Statement of Nathan Stewart, para 89, Exhibit 8.
Under cross-examination, Mr Stewart, says the shutters are an appropriate interim response, because in future they can be taken down, whereas modifications to the glazed façade are more permanent. He opines, '… you can take [the shutters] off when the time is right within the centre that there is all these other night-time activities going on within the centre, there is that nightlife activity'.[154]
[154] ts 65, 7 February 2024.
I prefer the evidence of Ms O'Brien because, in my view, she is more thorough in identifying, and carefully considering, a range of options available (which include improved lighting, more prominent CCTV and possible modifications to the glazed shopfront) sufficient to demonstrate the proposed development is not, by any means, a 'last resort' in the sense intended by LPP 24. Further, considering the extensive use of target hardening proposed, this does not, in my view, demonstrate it is being applied 'as sparingly as possible' as required by cl 6.7 (even considering the shutters will be open when the ALDI shop is trading).
I accept LPP 24, is a local planning policy addressing matters relevant in this case and is therefore to be given due regard as required by cl 67(2)(g) of the Deemed Provisions. As to the weight to be accorded LPP 24, in coming to my findings to Issue 5 and in determining this case, I accord it significant weight as a relevant policy, and in my view, it is based on sound planning principles.[155]
[155] Consistent with cl 8 of SPP 7.0 and the Guidelines.
As mentioned,[156] the correct approach to the application of policy is, I accept, as outlined in Clive Elliot Jennings.[157] As to the application of LPP 24 in this case, while I accept incidents of vandalism and theft have occurred (this being the reason advanced by the applicant for the proposed development), on the evidence before me, other alternatives and improvements exist which have not been tried and therefore the proposed development is not, I find, a last resort in the terms expressed in LPP 24. As the proposed development is not a last resort, it is not necessary to consider what weight should be given to this factor.
[156] At [83].
[157] Clive Elliot Jennings at [24].
The shutters being closed only at nighttime (when the ALDI shop has ceased trading) does not, in my view, given their prominence and extent, provide a cogent reason to depart from LPP 24, because of the town centre context of the subject site.[158] Similarly, a temporary approval period (aligned to end at a time soon after completion of the train station) is not a cogent reason to depart from LPP 24, because shutters are not a last resort in this case.
[158] Consistent with the observations in Binocular Telescope at [56] – [58].
On the evidence before me, no other cogent reason exists why LPP 24 should not be applied.

Findings – Issue 5

The proposed development, I am satisfied, and I find, is not a 'last resort' in the sense intended by LPP 24 because, on the evidence before me, other options exist which include improved external lighting, CCTV being located more prominently, and modifications to the glazed shopfront to improve its robustness.

Findings – Issue 2

Returning now to Issue 2, and having considered the relevant provisions of LPP 3.8 (at Issue 3)[159] and LPP 24 (at Issue 5),[160] I find the proposed development, in the circumstances of this case, is not consistent with the applicable planning policy framework for six reasons:
[159] See [74] – [92].
[160] See [106] – [125].

First, considering the LP Strategy and the town centre context of the subject site and the locality, the proposed development (when closed), given its significant extent, is not consistent with the creation of a vibrant town centre or of a high-quality urban design outcome envisaged by the LP Strategy. The closed shutters, given their prominence and extent, on the evidence before me, convey a sense of an unsafe environment, which will likely impede encouragement of nighttime activities and pedestrian activation in the locality and, therefore, the future prosperity and vibrancy of the town centre.
Second, considering the BDSP, the proposed development (when closed) does not present as a high-quality shopfront environment, contrary to the vision and objectives for the town centre at cl 1.1.3 because it will present as a continuous unarticulated and solid façade by entirely covering the existing glazed shopfront (which both planning experts agree is a high quality shopfront).
Third, considering the BTCLSP, the proposed development (when closed) is not compatible with the creation of a town centre environment which supports day and night activity. While the proposed development will be closed after the ALDI shop ceases trading, the extent of the closed shutters covering the entire glazed shopfront will, on the evidence before me, be detrimental to encouraging nighttime activity in the town centre because it creates a perception of an unsafe environment and is of particular relevance given the existing pedestrian path on the subject site between South Western Highway and George Street.
Fourth, considering my findings to Issue 3, the proposed development is not consistent with LPP 3.8 for the reasons outlined at [87] – [92].
Fifth, considering my findings to Issue 5, the proposed development is not consistent with LPP 24 for the reasons outlined at [125].
Sixth, considering the proper application of policy, on the evidence before me, there is no cogent reason in this case to depart from the policy framework and, therefore, no reason why the planning policy framework should not be applied.

Conclusion

The proposed development is for the installation of security shutters to the exterior of the glazed shopfront of the ALDI shop in the town centre. The shutters will be closed when the ALDI shop is not trading, otherwise they will be in an open position.
The applicant's main argument is the shutters are required as a 'last resort' to address incidents of vandalism and theft experienced at the ALDI shop. However, on the evidence before me and as I have explained, the proposed development is not in any way a last resort in the sense provided for in LPP 24.
Notwithstanding my findings on the various matters that require consideration under the Deemed Provisions, which includes the local planning framework, I acknowledge I retain a discretion to approve the proposed development.
However, considering my findings to Issues 1 to 5, the evidence before me, and the relevant matters under cl 67(2) of the Deemed Provisions, and the planning considerations of relevant State planning policies, SPP 4.2 and SPP 7.0 (as required by s 241(1)(a) of the PD Act), I conclude the correct and preferrable decision, for the reasons I have outlined, is to dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
For these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
16 APRIL 2024

Annexure A
Planning policy framework

LP Strategy
3.1 Urban Areas and Townsites
…
It is important for each of these urban centres and townsites to be developed with a distinctiveness and unique local identity which offers a different living environment. Providing a diversity of housing opportunities to suit a range of demographics, household types and lifestyle preferences will be important in achieving this urban structure. Proposals for new development or infill should also give consideration to the design of both the built form and the public realm to achieve high quality urban design outcomes, as well as the protection of the natural landscape.
…
3.1.1 Urban Design
Objectives
+Achieve distinctive and locally responsive built form and public realm that enhances sense of place, community identity and the character of the urban areas and townsites.
…
+Preserve and enhance existing character areas within existing urban areas and townsites and sensitively manage density transitions.
+Create well-designed, walkable and safe streetscapes and public realm with a high level of amenity.
+Achieve a high standard of building and urban design throughout the Shire.
…
+Create well-planned, connected communities that optimise liveability.

3.1.2 Byford
Objectives
+Achieve greater housing densities in proximity to the Byford Town Centre, neighbourhood activity centres, schools, community facilities, public open space and transport nodes and corridors to improve accessibility and enhance community connections.
…
+Encourage a mix of land uses and increased residential densities to create a vibrant and activated Byford Town Centre

3.5 Transport
Rationale
…
Active modes of transport such as walking and cycling are supported for short distance journeys within urban areas. Providing safe, accessible and interconnected pedestrian and cycle links between residential areas and destinations such as schools, shops, public transport stops and parks is essential in encouraging greater pedestrian and cycling activity[.]
…
3.5.1 Road and Freight
Objectives
…
+Achieve a legible, connected and easily accessible street network which facilitates safe and activated streetscape[.]

5.1 Activity Centres
Rationale
…
District centres have been identified in Byford and Mundijong, being the two largest urban areas in the Shire which are both projected to experience significant population growth.
…
All activity centres should be designed to activate the streetscape and public realm to maximise pedestrian traffic and create a vibrant, well patronised activity centre[.]
Objectives
…
+Create activated, vibrant, and economically thriving activity centres which concentrate retail and commercial uses and are also a community hub.
+Create quality streetscapes and public spaces which provide a high amenity and comfortable environment and encourage pedestrian activity and easy access.
…

Table 22: Activity Centre: Strategy and Actions Summary
Strategies
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g.Ensure that active primary frontages interface with major streetscapes, public spaces and pedestrian pathways to create activated, interesting places with a high level of surveillance.
…

BDSP (Part Two Explanatory Section)
1.1.3 Vision and Objectives
…

A Lifestyle Area of Choice
+A contemporary and connected place that is growing significantly but sustainably as an area of choice[.]
+A progressive model Centre of activity emerging respectfully from a long history as a unique rural setting at the foot of the Darling Scarp[.]
+A thriving district hub for business, education and community life which respects its historical and natural context and the lifestyle aspirations of the surrounding community[.]
…
A Vibrant and Integrated District Centre
+A vibrant town centre containing a mix of retail, commercial, civic, recreation, residential uses consistent with its role as a District Centre

…
+The location of major store anchors, high quality shop front environments and car parking areas contribute to an active main street environment

…
A Safe Pedestrian and Transit Oriented Centre
…
+The street network and urban environment provides high levels of connectivity and legibility

BTCLSP
1.8 Objectives
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-Provide for increased densities of residential development within proximity of the Byford Town Centre and proposed Byford metropolitan railway station/transit node.

…
-Provide for a permeable, efficient and effective movement network throughout the LSP area.

…
-Facilitate and coordinate the progressive subdivision, development and redevelopment of land within the LSP area.

…
-Provide a "Main Street" that creates the environment for mixed-use, day and night activity.

1.12.1 Town Centre (Retail Core)
The Retail Core area will be the priority area for retail and commercial development. Complimentary residential development, in the form of mixed-use development, is encouraged to assist with surveillance and after-hours activation.
…

1.19 Priority Frontages for Activated and Sleeved Development
…
Active frontages include entrances, ground floor shop windows or transparent frontages so that the activity within the building is visible from the street. Ideally, they should also include opportunities for activity to spill out onto pavements through street cafes and shop displays. These active frontages could include ground floor retail spaces, cafes, restaurants and bars, and may also include civic and cultural facilities and include public artwork. The Byford Town Centre Design Guidelines LPP 31 should be referred to for detailed provisions.

LPP 3.8
2.2 Built Form Concept
…
The urban core within the Town Centre area is a high quality mixed use environment accommodating ground level retail providing opportunity for multi-unit residential dwellings[.]
…
Public spaces are framed by welcoming architecture and well connected by pedestrians links and network of open space corridors. Pedestrianorientated environment and public space are facilitated and the impact of vehicle traffic and car parking within the Town Centre is minimised.

3.0 Design Source
3.1 Local Character
…

Connectivity between attractions is important as it creates an integrated Town Centre with unique sense of place[.]

4.0     General Policy Provisions[161]
[161] Relevant 'Design Objectives' (O) and 'Policy Requirements' (R).
4.1     Architectural Character
R4.1.1The architectural style of new buildings should reinforce the contemporary rural town feel. Styling shall be simple and contemporary, referencing on the simple forms and styling of traditional rural architecture.   Developers shall demonstrate an understanding and interpretation of this context (refer to Design Source).
R4.1.2The contemporary rural architectural character should:
-Emphasise the local identity through the appropriate use of built form, building materials, articulation and colour (refer to Design Source);
-Respond to the local climatic conditions providing protection against the strong easterly winds whilst taking advantage of the views toward foothills.

R4.1.3Inconsistent architectural styles with the theming of the LSP area, such as Tudor, Mediterranean, Santa Fe and Tuscan are not supported.

…
4.3Building Articulation and Building Materials
R4.3.1Extensive expanses of blank and flat facades facing the public realm must be avoided. As a guide, facades at street level should articulate at intervals of 6.0 to 10.0 metres.
R4.3.2Corner Developments shall through the incorporation of a design element reinforce both street frontages to enhance the streetscape and add visual interest.
R4.3.3 Facades facing the public realm shall have balanced proportions and architectural integrity and shall be modulated to add variety and interest. This may include but is not limited to:
-Projections and/or recessions;
-Balconies, roof gardens and verandahs;
-Tower elements on corner sites. Increased street wall heights at corners must take into consideration solar access requirements and shall not exceed an add[i]tional 4.0 metres in height (the equivalent of one storey);
-Shade devices (including awnings), noise barriers and privacy screens;
-Expression of building entries with awnings, porticos, recesses, blade walls and projecting bays;
-Deep window reveals;
-Interesting roof forms; and varied colours and materials.
…

4.7Entrances and Pedestrian Access
R4.7.1Building entrances are to be designed as a clear and identifiable element of the building in the street.
R4.7.2Provide direct physical and visual connections between street and entry. Pedestrian entrances to buildings must be clearly visible and identifiable within a 180 degree line-of-site from each entry point. Minor obstructions to views are acceptable.
…
4.9Building Orientation
R4.9.1 All building facades at ground floor level shall be oriented towards the street and public open spaces (including the town square, multiple use corridors and wetlands) to encourage surveillance. On corner sites, buildings must address both street frontages.
R4.9.2 Ground level facades should be designed to have transparent elements (i.e. doors, windows or display panels) so that a visual and/or physical connection is created between the activity within the building and the public realm. The use of bi-fold doors or similar is encouraged.
R4.9.3 Transparent elements for commercial premises within the LSP area should comprise of at least 60% of the ground level facade to make the inside easily discernible to the passer-by. The use of reflective and highly tinted glass is not permitted.
…
4.16Crime Prevention
O4.16.1 Create an environment which is safe and secure for residents and visitors.
O4.16.2 Provide for surveillance (actual and perceived) between individual developments and the public domain and minimise opportunities for concealment and entrapment.
…

R4.16.5 Building entrances shall be easily distinguishable, well lit and under passive surveillance from surrounding buildings where possible to enhance personal safety of occupants and visitors.
…
R4.16.7Avoid creating entrapment spots or places where intruders may loiter or be concealed.
R4.16.8Buildings shall be constructed from materials that are resistant to vandalism. The use of anti-graffiti coatings is encouraged.
…
R4.16.12Through block connections must provide a clear sightline from one end to the other, for surveillance and accessibility. Through block connections must have a minimum width of 3.0 metres, clear of any obstruction.
5.0Precinct Areas
…
5.3.1South Western Highway Precinct Policy Provisions
…
5.3.1.4 Building Orientation
(a)Active ground floor uses shall be provided to address South Western Highway, George Street and the POS corridor.
…