ALH GROUP PROPERTY HOLDINGS PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL - [2018] WASAT 63

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ALH GROUP PROPERTY HOLDINGS PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASAT 63
MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY
MS M CONNOR (MEMBER)

HEARD:   29 - 31 MAY 2018
DELIVERED          :   16 JULY 2018
FILE NO/S:   DR 16 of 2018
BETWEEN:   ALH GROUP PROPERTY HOLDINGS PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning - Application to amend development approval so as to extend period within which development must be substantially commenced - Development approval for alterations and additions to Como Hotel, demolition of Como BWS Drive-through liquor outlet and construction of Dan Murphy's liquor outlet - Development approval imposed twoyear period for substantial commencement - Considerations in exercise of discretion as to whether to extend period within which development must be substantially commenced - Whether planning framework has changed substantially since development approval granted - Whether development would likely receive approval now - Land use classification under local planning scheme as amended since development approval granted - Whether proposed Dan Murphy's liquor outlet now properly classified as 'Liquor Store (Large)' and therefore prohibited or as 'Tavern' and therefore capable of approval in exercise of discretion (with consultation) - Proposed Dan Murphy's liquor outlet falls within definitions of both land use classes 'Liquor Store (Large)' and 'Tavern' - Deemed exclusion of use under local planning scheme provision from definition 'which by its more general terms might otherwise include such particular [u]se' - Which definition is relevantly more general and which definition is relevantly more specific - Whether applicant has actively and conscientiously pursued implementation of development approval - Whether applicant sought to 'warehouse' approval - Whether period for substantial commencement originally imposed was adequate - Como Hotel and Como BWS Drive-through liquor outlet subject to (unrestricted) tavern licence under Liquor Control Act 1988 (WA) - An 'alteration' in licenced premises requires prior approval of consent authority under s 77 of LiquorControl Act 1988 - Application for alteration and redefinition of tavern licence lodged six months after development approval granted - Application for alteration and redefinition of tavern licence still not determined by Liquor Commission over two-and-a-half years after it was lodged

Legislation:

City of South Perth Town Planning Scheme No. 6, cl 3.3(3), cl 3.3(6), Sch 1
Liquor Control Act 1988 (WA), s 41(1), s 41(2), s 48(2), s 48(3), s 48(4), s 55(1), s 58(1), s 77, s 77(1), s 77(3)(a), s 77(3)(b), s 77(5),
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 3(1), reg 5, reg 6, reg 7, reg 8, reg 17, reg 17(1)(a), reg 17(2)(a), reg 17(4), reg 18(2), reg 18(2)(a), reg 18(2)(c)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 47
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31, s 31(3), s 46(1)

Result:

Development approval amended to extend period within which development must be substantially commenced to two years from Tribunal's decision

Summary of Tribunal's decision:

ALH Group Property Holdings Pty Ltd (ALH) sought review by the Tribunal of the decision of the Metro Central Joint Development Assessment Panel (DAP) to refuse ALH's application to amend a development approval so as to extend the period within which the approved development must be substantially commenced. The development approval is for alterations and additions to the Como Hotel, demolition of the Como BWS Drive-through liquor outlet and construction of a Dan Murphy's liquor outlet on a property at the intersection of Canning Highway and South Terrace in South Perth. The development approval was granted by the DAP on 17 April 2015 and stated that its validity 'shall cease if construction is not substantially commenced within 24 months of the date of planning approval'.
The Tribunal found that the planning framework has changed substantially since the development approval was granted, because the Dan Murphy's liquor outlet is now properly classified as 'Liquor Store (Large)' under the local planning scheme, which is a prohibited use in the Highway Commercial zone which applies to the site under the scheme. Consequently, the development of the Dan Murphy's liquor outlet cannot now lawfully be approved on the site under the local planning scheme. The Tribunal observed that these findings are powerful considerations against approval of the extension application.
However, the Tribunal also found that ALH has actively and conscientiously pursued implementation of the development approval through applying for and prosecuting an application for alteration and redefinition of the tavern licence that applies to the premises on the site under the Liquor Control Act 1988 (WA) (which has still not been determined over twoand-a-half years after it was lodged) and that the two-year period for substantial commencement originally imposed was wholly inadequate, given the need to obtain approval for alteration and redefinition of the tavern licence before ALH could commence construction of the Dan Murphy's liquor outlet. The Tribunal observed that these findings, particularly in combination, are powerful considerations in favour of approval of the extension application. Given that the approved development involves the construction of premises requiring alteration and redefinition of a licence under the LiquorControl Act 1988 in order to operate, and the significant period of time it appears that an application under that Act takes to be determined, the construction of the Dan Murphy's liquor outlet development could not have been substantially commenced within the two-year period originally imposed.
The Tribunal determined that, on balance, in the exercise of discretion in all the circumstances of this case, the considerations in favour of granting the extension application outweigh the considerations against granting the application. The Tribunal therefore extended the period within which the approved development must be substantially commenced to a date two years from the Tribunal's decision.

Category: B

Representation:

Counsel:

Applicant	:	Mr M Howard SC and Mr H Jackson
Respondent	:	Mr T Russell and Dr S Willey

Solicitors:

Applicant	:	Squire Patton Boggs
Respondent	:	State Solicitor's Office

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

Best and Zygier v City of Malvern (1975) 1 VPA 284
Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138
Kantor v Murrindindi Shire Council [1997] VicSC 167; (1997) 18 AATR 285; [1997] VicAATRp 20
Kapila and City of Stirling [2016] WASAT 59
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

ALH Group Property Holdings Pty Ltd (ALH) seeks review by the Tribunal, pursuant to reg 18(2)(a) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regs), of the determination by the Metro Central Joint Development Assessment Panel (DAP) made on 21 February 2018 to refuse ALH's application to amend a development approval so as to extend the period within which the approved development must be substantially commenced.
The development approval is for alterations and additions to the Como Hotel, demolition of the Como BWS Drive-through liquor outlet and construction of a Dan Murphy's liquor outlet at No. 243 (now Lots 888 and 889) Canning Highway, South Perth (site) (development approval).
The site is located at the intersection of Canning Highway and South Terrace and has frontages to both of those roads (Canning Highway to the east and South Terrace to the south). The site also has a frontage to Norton Street (to the north).
The Como Hotel has occupied the north-western corner of the intersection of Canning Highway and South Terrace for almost 80 years. The property has been expanded to include adjoining and adjacent lots to the west and north, including to accommodate a drivethrough liquor outlet in the northern part of the site, which was constructed in 1965.
The Dan Murphy's liquor outlet is proposed to be located in the same general area as the existing BWS Drive-through liquor outlet, that is, in the northern part of the site. However, the floor area of the proposed Dan Murphy's liquor outlet (1,139.5 square meters of which approximately 790 square metres would be for the display and sale of packaged liquor for consumption off the premises) is significantly greater than the area of the existing BWS Drive-through liquor outlet (321.4 square metres). The Dan Murphy's liquor outlet would occupy part of the footprint of the Como BWS Drive-through liquor outlet and also areas outside that footprint currently used for car parking and driveways.
The development approval was granted by the DAP on 17 April 2015 subject to 33 conditions. Condition 33 of the development approval states as follows:
The validity of this approval shall cease if construction is not substantially commenced within 24 months of the date of planning approval.
The development approval lapsed on 17 April 2017, because construction of the approved development had not substantially commenced by that date.
On 26 October 2017, ALH applied to the DAP to amend condition 33 of the development approval so as to extend the period within which the development may be substantially commenced until 17 April 2019 (extension application).
Mr Reginald Bateman, an architect and the project manager responsible for the development, was called by ALH to give evidence. Mr Bateman explained in cross-examination that the reason why the extension application was not lodged before the development approval lapsed on 17 April 2017, or prior to 26 October 2017, was that 'during that period, we understood we were substantially commenced we had substantially commenced the process' (ts 43, 29 May 2018). Mr Bateman said that ALH 'took legal advice, and for the avoidance of doubt, the recommendation was to lodge the [extension] application' (ts 43, 29 May 2018). Mr Bateman's evidence in this respect was not questioned or contradicted and we accept that ALH mistakenly believed that the development approval had not lapsed until it sought and obtained legal advice.
As indicated below, reg 17(2)(a) of the DAP Regs enables an application to amend a development approval so as to extend the period within which the approved development must be substantially commenced to be made 'during or after the period within which the development approved must be substantially commenced'. Therefore, although the development approval lapsed about six-and-a-half months before the extension application was made, the extension application is competent.
On 1 February 2018, ALH sought review by the Tribunal of the 'deemed refusal' by the DAP of the extension application, as the DAP had deferred the extension application in order to obtain legal advice and had not determined whether to approve or refuse it.
Regulations 18(1) and 18(2) of the DAP Regs state as follows:
(1)In this regulation
decision-maker has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);
deemed refused DAP application means a DAP application that is taken under the Act or a planning instrument to have been refused because a determination of the application was not made, or notice of the determination was not given to the applicant, within the time allowed under the Act or planning instrument.
(2)A person who has made a DAP application or an application under regulation 17 may apply to the State Administrative Tribunal for a review, in accordance with Part 14 of the Act, of
(a)a determination by a DAP to refuse the application; or
(b)any condition imposed by a DAP in the determination of the application; or
(c)a deemed refused DAP application,
as if the determination or deemed refusal were a determination of a responsible authority.
…
Thus, reg 18(2)(a) and (c) of the DAP Regs confers rights of review to the Tribunal including review of 'a determination by a DAP to refuse [an] application' under reg 17 (which includes an application to amend a development approval so as to extend the period within which the development must be substantially commenced) and review of 'a deemed refused DAP application'. However, the term 'DAP application' is exhaustively defined in reg 3(1) of the DAP Regs to mean a 'development application' under reg 5 (that is, a development application for the approval of development that has an estimated cost above a nominated threshold, which must therefore be determined by a DAP under reg 8) or reg 6 (that is, a development application for approval of a development that has an estimated cost between nominated amounts, which an applicant may elect under reg 7 is to be determined by a DAP and which must therefore be determined by a DAP under reg 8). Significantly, the definition of the term 'DAP application' in reg 3(1) of the DAP Regs does not include an application made to a DAP under reg 17 of the DAP Regs.
The Director General of Planning advised ALH on 17 January 2018 that the extension application was deemed to have been refused by the DAP. Furthermore, it is an agreed fact between the parties that the extension application was 'deemed to be refused' on 24 January 2018, 'because 90 days has passed since the [e]xtension [a]pplication was accepted by the City [of South Perth] on 27 October 2017'. However, because the definition of the term 'deemed refused DAP application' in reg 18(1) of the DAP Regs incorporates the definition of the term 'DAP application' in reg 3(1) of the DAP Regs (which does not include an application under reg 17 of the DAP Regs), it appears that a person who has made an application under reg 17 of the DAP Regs, and whose application is not determined (by approval or refusal) by the DAP, has no right of review to the Tribunal of a 'deemed refusal' of the application.
On 21 February 2018, the DAP considered the extension application and refused it under reg 17(4) of the DAP Regs. In consequence of that determination, ALH has a right of review to the Tribunal under reg 18(2)(a) of the DAP Regs of 'a determination by [the] DAP to refuse the application'. On 31 May 2018, the Tribunal granted leave to ALH to amend the application for review to seek review of the refusal by the DAP of the extension application on 21 February 2018. The proceeding is therefore competent and the Tribunal has jurisdiction and power to determine whether the extension application should be approved or refused.
On 31 May 2018, the Tribunal also granted leave to ALH to amend the application for review to seek an extension of the period within which the development must be substantially commenced to a date two years from the date of the Tribunal's decision in this proceeding, rather than the date two years after the development approval lapsed (17 April 2019).

Factual background

On 19 March 2018, the parties filed the following statement of agreed facts (agreed facts) for the purposes of this proceeding:
1.BACKGROUND
Development Approval History
1.1The Como Hotel building was first constructed in 1939. The City of South Perth (City) has subsequently granted approval to various additions and alterations to this building. The existing drive through bottle shop at the Como Hotel was first approved in 1965.
1.2At its meeting on 17 April 2015, the [DAP] resolved to grant development approval for the demolition and redevelopment of a bottle shop and additions and alterations to the "Como Hotel" (the Development), which is located at Lots 888 and 889 (No. 243) Canning Highway South Perth (formerly Lot 253 (No. 243) Canning Highway and Lot 6 (No. 148) South Terrace, Como) (Property) (Approval).
1.3[Deleted]
1.4The Property is owned by [ALH], a subsidiary of ALH Group Pty Ltd.
1.5On 15 September 2015, the City filed an application in the Supreme Court of Western Australia for judicial review of the Approval (Supreme Court Proceedings).
1.6On 11 May 2016, Martino J delivered his reasons in the Supreme Court Proceedings and dismissed the City's application (City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141).
1.7On 30 May 2016, the City commenced an appeal of the decision of Martino J of 11 May 2016 in the Court of Appeal of the Supreme Court of Western Australia.
1.8On 22 June 2016, the City discontinued the Court of Appeal proceedings.
Liquor licensing process
1.9Once the Approval was in place, Australian Leisure and Hospitality Group Pty Ltd, which is also a subsidiary of ALH Group Pty Ltd, prepared an application for the alteration and redefinition of the existing unrestricted tavern licence at the Como Hotel, under section [77] of the Liquor Control Act 1988 (WA) (Liquor Application).
1.10On 30 October 2015, Australian Leisure and Hospitality Group Pty Ltd lodged the Liquor Application with the then Department of Racing, Gaming and Liquor (Licensing Authority).
1.11The Liquor Application was advertised between 20 January 2016 and 16 February 2016.
1.12On 3 June 2016, the Licensing Authority advised that the Liquor Application would be determined on the papers and a timetable was fixed for a document exchange process (Timetable).
1.13Under the Timetable,
(a)submissions and further evidence was to be filed and served by all parties by 24 June 2016;
(b)responsive submissions were to be filed and served by all parties by 8 July 2016; and
(c)closing submissions were to be filed by 22 July 2016.
1.14Following the filing of final submissions, the Liquor Application remained with the Licensing Authority for determination.
1.15On 31 March 2017, the Licensing Authority in accordance with section 24 of the Liquor Control Act 1988 (WA) referred the Liquor Application to the Liquor Commission for determination.
1.16On 6 April 2017 the Liquor Commission acknowledged receipt of the referral from the Licensing Authority and advised the parties that they may file and serve any final evidence by 31 May 2017.
1.17On 23 May 2017, the Liquor Commission advised the parties that the matter had been listed for hearing on 27 October 2017.
1.18The Liquor Application was heard on 27 October 2017 and the Liquor Commission ordered that a discreet hearing of the traffic evidence would take place on 29 March 2018.
1.19On 26 February 2018, solicitors for Australian Leisure and Hospitality Group Pty Ltd wrote to the Liquor Commission requesting that the traffic evidence hearing on 29 March 2018 be adjourned until after State Administrative Tribunal (SAT) has heard this matter on 17 April 2018.
1.20A copy of a letter [ALH's] solicitor sent to the Licensing Authority on 7 February 2017 requesting a progress update is attached at Tab 10 of the bundle of documents.
2.THE APPLICATION
2.1The Approval is subject to conditions. Condition 33 of the Approval provides that the substantial commencement period for the Development expired 24 months after the date of planning approval. The Approval lapsed on 17 April 2017.
2.2On 19 October 2017, [ALH] applied under Regulation 17 of the Planning and Development (Development Assessment Panel) Regulations 2011 to extend the time for substantial commencement of the Approval for a further 24 months, to 17 April 2019 (Extension Application). The City accepted the application on 27 October 2017.
2.3On 20 December 2017, the Metro Central JDAP heard the Extension Application and resolved to defer the hearing until 12 February 2018 for legal advice.
2.4On 9 January 2018, Squire Patton Boggs (AU) wrote to the DAP Secretariat and to the Director General of Planning on behalf of [ALH] requesting that the deferred JDAP hearing date be brought forward into January. The Director General of Planning refused the request on 17 January 2018 stating that the Extension Application was deemed refused.
2.5On 24 January 2018 the Extension Application was deemed to be refused because 90 days has passed since the Extension Application was accepted by the City on 27 October 2017. On 1 February 2018, the Applicant applied to the SAT for review of a deemed refusal of the Extension Application.
2.6By Order of SAT, on 21 February 2018, the Metro Central JDAP resolved to:
(a)Reconsider its decision dated 20 December 2017;
(b)Accept that the Extension Application is appropriate for consideration in accordance with regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011; and
(c)Refuse the Extension Application.
2.7The reasons for the Metro Central JDAP's refusal of the Extension Application are as follows:
‘(1)The proposed extension is contrary to Town Planning Scheme 6 which makes liquor store (large) a prohibited use on this site.
(2)As advised by Main Roads Western Australia:
(a)there are significant changes to the Canning Highway and Norton Street traffic flows and framework since the 2015 approval, which will have a substantial impact on traffic relating to the development.
(b)the approved development poses an unacceptable safety risk to all road users due to the changed circumstances.
(3)The holder of the development approval has not actively and relatively conscientiously pursued the implementation of the development approval.
(4)Under Amendment 58 to the City's Town Planning Scheme 6 which has been supported by Council and will be forwarded to the Minister for final approval of the proposed application could not be approved as the proposal would have to be considered as a liquor store ‘large' which is a prohibited use in this zone.
(5)Local Planning Policy P317 Licenced Premises was amended on 6 February 2018. The new extension is inconsistent with the objectives of the amended Policy particularly in regard to the design and location of a liquor store (large).'
3.THE PROPERTY
3.1The Property:
(a)is zoned Urban (Lot 888) and Primary Regional Roads reservation (Lot 889) under the Metropolitan Region Scheme.
(b)is zoned Highway Commercial R80 under City of South Perth Town Planning Scheme No. 6 (TPS6).
3.2A Tavern is a 'DC' ("Discretionary with Consultation") use in the Highway Commercial zone.
3.3Amendment 50 to TPS 6:
(a)introduced the land use Liquor Store (Large) (which is a prohibited 'X' use in the Highway Commercial zone); and
(b)amended the definition of 'shop' to exclude outlets that sell liquor.
4.THE PLANNING FRAMEWORK
4.1The town planning scheme applicable to the Property is TPS6.
4.2At a meeting of the council of the City (Council) on 24 March 2015, the Council considered the following motion:
"That:
(a) the Metro Joint Central Development Assessment Panel is advised that in principle Council does not support the development of a large format liquor outlet at the Como Hotel site as this will have unacceptable traffic and parking impact, noise and patron management issues and a negative social impact as a result of the cheap, bulk sale of alcohol.
(b) a report is prepared for the May meeting of Council which provides a strategic approach to the assessment of alcohol outlets in the City of South Perth, taking into account the current community alcohol profile (current outlets, their impacts and issues associated with them) and the future direction of the City. The report is to make recommendations which may include proposed draft town planning scheme provisions and/or a draft local town planning policy. Comment The City does not have in place policy or scheme provisions for the assessment of alcohol outlets and as such ad hoc decisions may be made without a fully formed strategic approach. The strategic approach is work that should be undertaken as a matter of urgency, so that DAP and SAT are aware that the Council considers that this is an extremely important issue."
4.3In response to the above motion, the following motion was made by the Council at the meeting:
"That:
(b) a report is prepared for the May meeting of Council which provides a strategic approach to the assessment of alcohol outlets in the City of South Perth, taking into account the current community alcohol profile (current outlets, their impacts and issues associated with them) and the future direction of the City. The report is to make recommendations which may include proposed draft town planning scheme provisions and/or a draft local town planning policy.
(c) Whilst a report will be prepared for the May meeting of Council (as per (b) above) the following Interim Policy is adopted by Council. It is acknowledged that the details and intention of this policy may change as a result of the work being undertaken in regard to the policy that officers are working on.
Interim Policy
Large format liquor outlets are to be located in the District Centre Commercial Zone only, in particular any sites adjacent to residential areas will not be supported for this type of liquor outlet. The following information is to be provided for any liquor outlet planning application (for either on or off premises consumption):
• A traffic and parking impact assessment;
• A demand assessment;
• An amenity assessment taking into account adjoining land uses, and issues including but not limited to noise and patron management; and
• A social impact and harm minimisation strategy."
4.4At the Ordinary Meeting of Council on 26 May 2015, the Council resolved to:
(a)endorse a new draft planning policy P317 Licensed Premises (Appendix 2) for advertising for community comment; and
(b)initiate a 'Scheme Amendment' to insert relevant definitions Schedule 1 and land uses into Table 1 to give greater control over the permissibility of alcohol outlets in the various zones.
4.5At an Ordinary Meeting of Council on 25 August 2015, the Council resolved, amongst other things, that:
(a) the Council of the City of South Perth, in pursuance of Section 75 of the Planning and Development Act 2005, amend the City of South Perth Town Planning Scheme No. 6 by introducing the new land uses of 'Liquor Store Small', 'Liquor Store Large' and 'Small Bar', inserting relevant definitions, modifying the definition of 'shop' and modifying the land use permissibility table and car and bicycle parking ratios accordingly.
(b) the Report on Amendment No. 50 to the City of South Perth Town Planning Scheme No. 6, containing the draft amending clauses, comprising Attachment (a), be adopted;
(c) in accordance with section 81 of the Planning and Development Act 2005, Amendment No. 50 be forwarded to the Environmental Protection Authority for assessment under the Environmental Protection Act 1986;
(d) Amendment No. 50 be forwarded to the Western Australian Planning Commission for information; and
(e) adopted Policy P317 'Licensed Premises'.
4.6The definitions for "Liquor Store Small" and "Liquor Store Large" proposed in Amendment 50 were from the Model Scheme Text provisions in the draft ‘Planning and Development (Local Planning Schemes) Regulations 2015'.
4.7On 4 March 2016, Amendment 50 was gazetted.
4.8Shortly following receipt of the Extension Application, on 14 November 2017, a Special Meeting of Council was held to:
•Consider the immediate advertising of an Amendment to the City of South Perth Town Planning Scheme No. 6 related to ensuring that the intent of Amendment No. 50 is reflected in the text of the Scheme (see pages 6 and 7 of Minutes of Meeting).
•Request the CEO to forthwith contact the Department of Main Roads to:
oObtain an actual or indicative timing for the implementation of the Department's timed bus bay in the grassed verge adjacent to the Como Hotel in Canning Highway, and
oProgress at the earliest opportunity the Department's proposal to extend the Canning Highway median strip northeast to a point past Norton Street to prevent a right turn into and out of Norton Street at the intersection with Canning Highway (see pages 6 and 7 of Minutes of Meeting).
•Approve an allocation of $30,000 from city funds towards the joint funding of the implementation of the department's proposal for Canning Highway median strip lengthening (see pages 6 and 7 of Minutes of Meeting).
•Consider amendments to Policy P317 Licensed Premises in order to address the "'loophole' for large format liquor stores".
4.9At the Special Council Meeting, the Council resolved to, relevantly:
(a)initiate the following amendments to TPS6:
a) modifying the definition of 'Liquor Store (Large)' contained in schedule 1 of the scheme text by:
i. deleting the existing definition; and
ii. substituting it with the following definition: 'Liquor Store (Large)' means premises: (a) the subject of a liquor licence granted under the Liquor Control Act 1988, including but not limited to a liquor store licence, tavern licence or hotel licence; and (b) where the area used to display and sell packaged liquor has a net lettable area of more than 300 square metres.
b) modifying the definition of 'Tavern' contained in schedule 1 of the scheme text by:
i. deleting the existing definition; and
ii. substituting it with the following definition: 'Tavern' means any land or building the subject of a tavern licence granted under the Liquor Control Act 1988, but does not include a Liquor Store (Large). For the avoidance of doubt a Tavern may display and sell packaged liquor provided that the area used to display and sell packaged liquor has a net lettable area of not more than 300 square metres.
c) modifying the definition of 'Hotel' contained in schedule 1 of the scheme text by:
i. deleting the existing definition; and
ii. substituting it with the following definition: 'Hotel' means premises the subject of a hotel licence other than a small bar or tavern licence granted under the Liquor Control Act 1988 including any betting agency on the premises, but does not include Tourist Accommodation or Liquor Store (Large). For the avoidance of doubt a Hotel may display and sell packaged liquor provided that the area used to display and sell packaged liquor has a net lettable area of not more than 300 square metres
d) modifying the definition of 'Shop' contained in schedule 1 of the scheme text by:
i. deleting the existing definition; and
ii. substituting it with the following definition: 'Shop' means premises used for the sale of goods by retail, for the hire of goods, or to provide hairdressing or beauty therapy services and the like, but does not include Showroom, Liquor Store (Large), Liquor Store (Small), Tavern, Hotel or any other uses specifically defined elsewhere in this Scheme,
(Amendment 58)
(b)Adopt the draft modified local planning policy P317 Licenced Premises, as set out in Attachment (a), for public comment; and
(c)Request the Chief Executive Officer to commence discussions with Main Roads in relation to the proposed timing of implementing the timed bus bay adjacent to the Como Hotel, on Canning Highway; and the proposal to extend the Canning Highway median strip northeast to a point past Norton Street to prevent a right turn into and out of Norton Street at the intersection of Canning Highway (the Median Strip Works).
4.10Subsequent to the Special Council Meeting, on 21 November 2017 the amendments to P317 Licensed Premises were advertised.
4.11On 12 December 2017, the advertising period for the amendments to P317 Licensed Premises closed.
4.12On 6 February 2018, at a Special Council Meeting, the Council resolved to adopt the draft amended Local Planning Policy P317 Licensed Premises (copy at Tab 16 of the bundle of documents).
4.13Also on 6 February 2018, the public consultation period for Amendment 58 closed.
4.14On 20 February 2018, at a Special Meeting of Council, the Council resolved to support Amendment 58 without modification and request that the Minister for Planning grant final consent to Amendment 58.
4.15Also on 20 February 2018 the City published a Notice of adoption of revised Local Planning Policy P317 Licensed Premises in the Southern Gazette.
5.TRAFFIC MANAGEMENT
5.1Main Roads Western Australia (MRWA) provided comments on the development application and suggested conditions in a letter to the City, dated 1 April 2015 (MRWA Letter). The MRWA Letter stated that:
'Main Roads would support this development subject to the following conditions being imposed:
1. Norton Street and Canning Highway intersection is restricted to left-in-left-out only. This would be achieved by extension of the central median on Canning Highway past the intersection of Norton Street.
2. The crossover on Canning Highway is removed and accesses to the development are limited to and from Norton Street and South Terrace.
3. No development or car parking other than landscaping shall be permitted on the land as shown required for future road purposes on the enclosed drawing at Appendix A of the RSA (drawing 301012-01375 Sheet 3).
4. The area required for future road purposes is not to be included in the specific car parking requirements for this development.
If JDAP is not supportive of this measure as per condition 1 and 2 above, then the following condition must be adopted:
Full access may be retained in the interim subject to the applicant entering into a Deed of Agreement with Main Roads WA, City of South Perth, DoP and PTA that no compensation can be sought for loss of business at such time as the crossover to Canning Highway is removed and Norton Street / Canning Highway intersection is restricted to left-in-left-out as detailed on the Ultimate Planning Design Concept.'
5.2In its responsible authority report to the Respondent dated 'November 2014', the City recommended refusal of the development approval based on, inter alia, the following reason for refusal:
'The additional traffic generated by the proposal, particularly from the proposed 'Dan Murphy's' bottle shop, will unreasonably contribute to greater traffic congestion in the immediate locality and adversely affect the amenity of surrounding residential streets. Accordingly, the proposal does not comply with clause 7.5(t) of Town Planning Scheme No. 6'.
5.3In granting the Approval on 17 April 2015, the [DAP] rejected the City's recommendation.
5.4In its referral advice dated 22 November 2017, MRWA advised that it did not support the Extension Application for the following (summarised) reasons:
(a)the swept path modelling was based on an incorrect vehicle design with resultant impacts on circulation and functionality of access; and
(b)the Development places increased pressure on the Norton Road/Canning Highway intersection and poses an unacceptable safety risk for all road users.
5.5On or about 26 January 2018, the Median Strip Works were carried out.

Further to paragraphs 2.2 and 2.3 of the agreed facts, 51 objecting submissions and two supporting submissions were made in relation to the extension application.
As indicated at paragraphs 3.2 and 3.3 of the agreed facts, under the City of South Perth Town Planning Scheme No. 6 (TPS 6 or Scheme) (and, in particular, in Table 1 Zoning Land Use), the land use class 'Tavern' is designated by the symbol 'DC' in the Highway Commercial zone and the use class 'Liquor Store (Large)' (which was introduced by Amendment No. 50 to TPS 6 on 4 March 2016) is designated by the symbol 'X' in the Highway Commercial zone. Clause 3.3(3) of TPS 6 explains the meanings of the symbols 'DC' and 'X' in Table 1 Zoning Land Use as follows:
The symbols used in the cross-reference in Table 1 have the following meanings:
…
'DC'indicates a Discretionary Use with Consultation and means that the Use is not permitted unless the local government has exercised its discretion by granting development approval after giving special notice in accordance with Deemed Provisions clause 64.
'X'indicates a Prohibited Use and means that the use is not permitted by the Scheme.
Further to paragraphs 3.2, 3.3 and 4.7 of the agreed facts, the definitions of the land use classes 'Liquor Store Small', 'Liquor Store Large', 'Shop' and 'Tavern' in Sch 1 of TPS 6 introduced or amended by Amendment No. 50 to the Scheme on 4 March 2016 are as follows:[1]
'Liquor Store (Large)['] : means premises the subject of a liquor store licence granted under the Liquor Control Act 1988 with a net lettable area of more than 300 sq. metres.
'Liquor Store (Small)' : means premises the subject of a liquor store licence granted under the Liquor Control Act 1988 with a net lettable area of not more than 300 sq. metres.
'Shop' : means premises used for the sale of goods by retail, for the hire of goods, or to provide hairdressing or beauty therapy services and the like, but does not include a Showroom, Liquor Store (Large), Liquor store (Small), or any other uses specifically defined elsewhere in this Scheme.
'Tavern' : means any land or building the subject of a Tavern Licence granted under the provisions of the Liquor Control Act 1988, as amended.
[1] The title of the 'Liquor Control Act 1988' changed from the 'Liquor Licensing Act 1988' on 7 May 2017 and the title of this Act was amended in the definitions of 'Liquor Store (Large)', 'Liquor Store (Small)' and 'Tavern' in TPS 6 by Amendment No.54 to TPS 6 which was gazetted on 12 January 2018. The definitions of these terms did not otherwise change.
Further to paragraph 4.14 of the agreed facts, in programming orders made on 13 April 2018, the Tribunal directed the presiding member of the DAP to file with the Tribunal and give to ALH 'a witness statement concerning the current status of Amendment No. 58 [to TPS 6]'.
On 23 May 2018, the presiding member of the DAP filed a witness statement by Ms Lee O'Donohue, who is a town planner and who holds the position of Director of the Schemes and Amendments team within the Department of Planning, Lands and Heritage. Ms O'Donohue gave evidence that Amendment No. 58 was initiated by the City of South Perth (City or Council) on 14 November 2017, was advertised in accordance with reg 47 of the Planning and Development (Local Planning Schemes) Regulations 2015 and was submitted to the Western Australian Planning Commission (Commission) for consideration on 9 March 2018. She said that Amendment No. 58 was considered by the Statutory Planning Committee of the Commission at its meeting on 1 May 2018 and that the Commission recommended that the Minister for Planning (Minister) should require modifications to the Amendment before being resubmitted for final approval.
Ms O'Donohue also gave evidence that, on 9 May 2018, the Minister required Amendment No. 58 to be modified in the manner recommended by the Commission, before being resubmitted for the Minister's approval. On 11 May 2018, the Commission informed the City of the Minister's decision and that the modifications to Amendment No. 58 required by the Minister do not require further advertising.
Ms O'Donohue gave evidence that, once the City had undertaken the required modifications, Amendment No. 58 'will be resubmitted to the Minister for determination' and that it was 'anticipated that Amendment No. 58 will be submitted to the Minister for approval in late May 2018'.
Ms O'Donohue was not required for cross-examination.
It was common ground between the parties at the hearing on 29-31 May 2018 and, in light of Ms O'Donohue's evidence, plainly the case that the gazettal of Amendment No. 58 in the form required to be modified by the Minister was both certain and imminent. Indeed, on 19 June 2018, within three weeks of the conclusion of the hearing, Amendment No. 58 was gazetted in the form that the Minister required it to be modified. The gazettal notice states that Amendment No. 58 was 'finally approved' by the Minister on 1 June 2018.
On 19 June 2018, Amendment No. 58 replaced the definitions of 'Liquor Store (Large)', 'Tavern', 'Hotel' and 'Shop' in Sch 1 of the Scheme so that the definitions of those land use classes now state as follows:
'Liquor Store (Large)' means premises –
(a)the subject of a liquor licence granted under the Liquor Control Act 1988; and
(b)in which the whole of, or a portion of, the premises with a net lettable area of more than 300 square metres is used to display and sell packaged liquor for consumption off the premises.
'Tavern' means premises subject of a tavern licence granted under the provisions of the Liquor Control Act 1988.
'Hotel' means premises subject of a hotel licence other than a small bar or tavern licence granted under the provisions of the Liquor Control Act 1988 including any betting agency on the premises.
'Shop' means premises other than a bulky goods showroom, a 'Liquor Store (Large)' or a 'Liquor Store (Small)' used to sell goods by retail, to hire goods, or to provide services of a personal nature, including hairdressing or beauty therapy services.

Legal framework and principles

Regulation 17 of the DAP Regs states, in part, as follows:
(1)An owner of land in respect of which a development approval has been granted by a DAP pursuant to a DAP application may apply for the DAP to do any or all of the following
(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
…
(2)An application under subregulation (1)
(a)may be made during or after the period within which the development approved must be substantially commenced; …
…
(4)The DAP may determine an application under subregulation (1) by
(a)approving the application with or without conditions; or
(b)refusing the application.
…
As indicated earlier, reg 18(2)(a) of the DAP Regs confers a right of review to the Tribunal of the decision made by the DAP on 21 February 2018 to refuse the extension application under reg 17(4) of the DAP Regs in the following terms:
(2)A person who has made a DAP application or an application under regulation 17 may apply to the State Administrative Tribunal for a review, in accordance with Part 14 of the Act, of
(a)a determination by a DAP to refuse the application; …
The principles which are applicable in relation to an application to amend a development approval granted by a DAP so as to extend the period within which the approved development must be substantially commenced are not in dispute.
In Kapila and City of Stirling [2016] WASAT 59 the matter before the Tribunal was an application for review of the refusal by a local government to grant a further extension of the term of a development approval under a specific provision of the local planning scheme which enabled '[a] written request [to] be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period …'. The Tribunal observed in Kapila and City of Stirling at [38] that the local planning scheme which authorised the local government to extend the term of a planning approval did not 'prescribe any particular matters for consideration in the exercise of discretion as to whether to extend the term of a development approval'. The DAP Regs also do not prescribe any particular matters for consideration in the exercise of discretion as to whether to amend a DAP approval so as to extend the period within which the approved development must be substantially commenced. However, in Kapila and City of Stirling the Tribunal also observed that it was [38]:
… common ground between the parties that the three considerations identified by the Tribunal in Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 (Claymont), in the context of determining whether to approve an application to amend a development approval by stipulating an additional period of six months for substantial commencement of the approved development under the East Perth Redevelopment Scheme, are each also relevant considerations in the exercise of the Tribunal's discretion under cl 10.5.2 of LPS 3 in this case. …
In Kapila and City of Stirling, the Tribunal held as follows [39]:
We agree that the three considerations identified in Claymont, namely:
•whether the planning framework has changed substantially since the development approval was granted;
•whether the development would likely receive approval now; and
•whether the holder of the development approval has actively and relatively conscientiously pursued the implementation of the development approval,
are each relevant matters to be considered and balanced in the exercise of discretion under cl 10.5.2 of LPS 3.
In Kapila and City of Stirling, the Tribunal then held as follows [40]:
However, the range of considerations under cl 10.5.2 of LPS 3 is not closed. …
The principles stated in Kapila and City of Stirling were followed and applied by the Tribunal in Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138 in an application for review of the refusal by a DAP of an application under reg 17(1)(a) of the DAP Regs to amend a development approval so as to extend the period within which the approved development must be substantially commenced. In Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel, the Tribunal held as follows [58][60]:
58The following three considerations are each relevant matters to be considered and balanced in the exercise of the Tribunal's discretion under reg 17(4) of the DAP Regulations:
(a)whether the planning framework has changed substantially since the development approval was granted;
(b)whether the development would likely receive approval now; and
(c)whether the holder of the development approval has actively and relatively conscientiously pursued the implementation of the development approval.
See Kapila and City of Stirling [2016] WASAT 59 at [38]-[40] (Kapila) following Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 at [51]-[53] (Claymont).
59However, the range of considerations was not closed in Kapila: see [39].
60It is also noted that Kapila is not authority for the proposition that each of the three relevant considerations must be satisfied before an extension of time may be given: see for instance Teimoori v Moreland City Council [2015] VCAT 1969 at [2] and [20].
As indicated in the final paragraph of the passage set out immediately above, it is not necessary for each relevant matter for consideration to be answered in favour of an applicant for the decision-maker to be satisfied that an extension application should be approved. The considerations are not conditions precedent to the availability or the exercise of a discretion. Rather, the findings in relation to each relevant matter for consideration must be taken into account and balanced in the exercise of discretion conferred by reg 17(4) of the DAP Regs as to whether to approve the extension application, with or without conditions, or refuse the extension application.
As held in Kapila and City of Stirling at [40], 'the range of considerations' in the exercise of discretion as to whether to extend the period within which an approved development must be substantially commenced 'is not closed'. In this case, ALH contends (and the presiding member of the DAP does not dispute) that there are two other relevant considerations in relation to the exercise of discretion under reg 17(4) of the DAP Regs.
The first further consideration has been identified in Victorian planning authorities since at least 1975 and was stated in Best and Zygier v City of Malvern (1975) 1 VPA 284 (Town Planning Appeals Tribunal) as follows 286:
Whether the time originally limited was in all the circumstances reasonable and adequate taking into account the steps which would be necessary before the construction could actually commence.
In Kantor v Murrindindi Shire Council [1997] VicSC 167; (1997) 18 AATR 285; [1997] VicAATRp 20, this consideration in relation to an application to extend the term of a development approval was endorsed by the Supreme Court of Victoria (Ashley J) as follows 314:
… whether the time limit for use or development originally imposed (and, if it be the case, as thereafter extended) was adequate in all the circumstances. The mere fact that a particular limit was set must no doubt be relevant. But whilst not impugning the limit originally set (and the effect of any extensions) consideration of all the circumstances might persuade a responsible authority that more time ought to be allowed for the owner of land to proceed.
The second further consideration referred to by ALH (and not contested as a relevant matter by the presiding member of the DAP) was stated by Ashley J in Kantor v Murrindindi Shire Council as follows 313:
… a responsible authority
…
•may rightly consider
…
•as a factor tending against the grant of an extension, any material which suggests that the owner of land is seeking to "warehouse" a permit. The objectives of the Planning Act do not include giving to an owner of land in respect of which there exists an unused permit for use or development the opportunity by grant of an extension of obtaining a windfall by selling the land.
We will now discuss and make findings in relation to each of the five relevant considerations we have referred to. We will then address two submissions made to the Tribunal by the owners of adjoining properties under s 242 of the Planning and Development Act 2005 (WA) (PD Act). Finally, we will determine whether to approve or refuse the extension application in the exercise of the discretion conferred by reg 17(4) of the DAP Regs, having regard to and balancing our findings in relation to the relevant matters for consideration.

Has the planning framework changed substantially since the development approval was granted?

In the statement of issues filed on 2 March 2018, the presiding member of the DAP contends that, in considering whether the planning framework in relation to the development on the site has changed substantially since the DAP granted development approval on 17 April 2015, the Tribunal will need to consider the significance and effect of:
•Amendment No. 50 to TPS 6 (which was gazetted on 4 March 2016);
•the City's Local Planning Policy P317 Licenced Premises (LPP 317) (which was adopted by the City on 25 August 2015 and amended by the City with effect from 20 February 2018); and
•what was until its gazettal on 19 June 2018 'proposed' Amendment No. 58 to TPS 6.
As ALH submits (and as the presiding member of the DAP did not ultimately contest), Amendment No. 50 to TPS 6 did not change the planning framework relevant to the development on the site at all, much less 'substantially'. Certainly, as indicated in paragraphs 4.3 4.5 of the agreed facts, the City's goal in formulating and progressing Amendment No. 50 was to restrict large liquor outlets (such as Dan Murphy's) to the District Centre Commercial zone and to preclude such developments in all other zones under TPS 6 (including the Highway Commercial zone). As indicated earlier, Amendment No. 50 to TPS 6 prohibited development classified as 'Liquor Store (Large)' on land zoned Highway Commercial under the Scheme. However, as also indicated earlier, the definition of the land use class 'Liquor Store (Large)' introduced by Amendment No. 50 stated as follows:
'Liquor Store (Large)['] : means premises the subject of a liquor store licence granted under the Liquor Control Act 1988 with a net lettable area of more than 300 sq. metres.
(Emphasis added)
The Como Hotel and the Como BWS Drive-through liquor outlet on the site both operate under a single tavern licence (Licence No. 6020039131) which was granted under the Liquor Control Act 1988 (WA) (LC Act) on 15 April 2014.[2] Mr Bateman gave evidence, which was not questioned or contradicted and which we accept, that the proposed Dan Murphy's liquor outlet would not be the subject of a 'liquor store licence' under the LC Act. Rather, it would be the subject of the tavern licence which currently applies to the site and which, as indicated in the agreed facts at paragraphs 1.9 1.20, is the subject of an application under s 77 of the LC Act for alteration and redefinition in order to authorise, for the purposes of the LC Act, the 'alteration' in the licenced premises corresponding to the development approval for alterations and additions to the Como Hotel, demolition of the Como BWS Drive-through liquor outlet and construction of the Dan Murphy's liquor outlet on the site.
[2] The title of the LC Act was 'Liquor Licensing Act 1988' until 6 May 2017.
Therefore, the Dan Murphy's component of the development which was approved by the DAP on 17 April 2015 would not have been properly classified as 'Liquor Store (Large)' under TPS 6 following Amendment No. 50 (and until the gazettal of Amendment No. 58 see below), because the Dan Murphy's liquor outlet would operate under the altered and redefined 'tavern licence', rather than under a 'liquor store licence', under the LC Act.
As TPS 6 stood following Amendment No. 50 (and until the gazettal of Amendment No. 58 see below), the proposed Dan Murphy's liquor outlet was properly classified as 'Tavern' under TPS 6, which is identified in Table 1 Zoning Land Use by the symbol 'DC' in the Highway Commercial zone and is therefore 'a Discretionary Use with Consultation' under cl 3.3(3) of the Scheme. As indicated earlier, the land use class 'Tavern' was defined following Amendment No. 50 (and prior to the gazettal of Amendment No. 58) as follows:
'Tavern' : means any land or building the subject of a Tavern Licence granted under the provisions of the Liquor Control Act 1988, as amended.
The Dan Murphy's liquor outlet would have been properly classified as 'Tavern' under TPS 6 following Amendment No. 50 (and until the gazettal of Amendment No. 58 see below), because it would constitute 'land or building the subject of a Tavern Licence granted under the provisions of the Liquor Control Act 1988, as amended'.
Furthermore, because the definition of the land use class 'Shop' (see [20] above) expressly excluded 'any other uses specifically defined elsewhere in this Scheme', and as the Dan Murphy's liquor outlet would have been specifically defined in TPS 6 after Amendment No. 50 was gazetted (and prior to the gazettal of Amendment No. 58 see below) as 'Tavern', it was not properly classified as 'Shop' for the purposes of TPS 6.
As ALH submits (and as the presiding member of the DAP does not seriously contest), LPP 317 also does not involve a substantial change to the planning framework for the purposes of the proposed Dan Murphy's liquor outlet on the site.

LPP 317 consists of four sections. Section 1 of LPP 317 simply refers back to the land use permissibility prescribed by the Scheme. Section 3 of LPP 317 concerns the provision of information as part of the application process for development approval for licenced premises. Section 4 of LPP 317 concerns car and bicycle parking requirements. The most significant aspect of LPP 317 in relation to the Dan Murphy's component of the development approval is in terms of section 2 which sets out matters that 'the City will take into consideration' when assessing a development application under TPS 6 in relation to the location and design of licenced premises.
However, we accept the opinion expressed by Ms Rachel Chapman, a qualified and experienced town planner called by ALH, that:
As [LPP 317] only provides guidance on information requirements for an application and refers back to TPS 6 for development requirements, I do not consider it to be a substantial change in the planning framework.
Mr Stephen Allerding, a qualified and experienced town planner called by the presiding member of the DAP, did not express a contrary opinion.
We consider that Amendment No. 58, which, as indicated earlier, was gazetted on 19 June 2018, has substantially changed the planning framework in relation to the Dan Murphy's liquor outlet development on the site, because it has the effect of prohibiting the Dan Murphy's liquor outlet development as a 'Liquor Store (Large)' (as that term is now defined).
As indicated earlier, Amendment No. 58 replaced the definitions of the land use classes 'Liquor Store (Large)' and 'Tavern' in Sch1 of TPS 6 with the following:
'Liquor Store (Large)' means premises –
(a)the subject of a liquor licence granted under the Liquor Control Act 1988; and
(b)in which the whole of, or a portion of, the premises with a net lettable area of more than 300 square metres is used to display and sell packaged liquor for consumption off the premises.
'Tavern' means premises subject of a tavern licence granted under the provisions of the Liquor Control Act 1988.
It is common ground between the parties and clearly the case that the Dan Murphy's liquor outlet falls within the current definitions of both land use classes 'Liquor Store (Large)' and 'Tavern'.
The Dan Murphy's liquor outlet falls within the definition of 'Liquor Store (Large)', because it involves 'premises … the subject of a liquor licence granted under the [LC Act]; and … in which the whole of, or a portion of, the premises with a net lettable area of more than 300 square metres is used to display and sell packaged liquor for consumption off the premises'. As indicated earlier, 'Liquor Store (Large)' is a prohibited use on the site under TPS 6.
However, the proposed Dan Murphy's liquor outlet also falls within the definition of the land use class 'Tavern', because it involves 'premises subject of a tavern licence granted under the provisions of the [LC Act]'. As indicated earlier, 'Tavern' is a discretionary use with consultation and, therefore, capable of approval in the exercise of planning discretion under TPS 6.
Fortunately, there is a legislative mechanism under TPS 6 for resolving this apparent 'Gordian knot' of land use classification under the Scheme. The legislative mechanism is provided by cl 3.3(6) of TPS 6, which states as follows:
Where a particular Use is defined in Schedule 1 it is deemed to be excluded from any other Use which by its more general terms might otherwise include such particular Use.
As ALH correctly submits, under cl 3.3(6) of TPS 6, '[p]ut more simply, where a land use falls within two definitions, the more specific definition is to prevail over the more general'.
ALH submits that, for the purposes of cl 3.3(6) of TPS 6, the 'particular [u]se' of the Dan Murphy's liquor outlet is deemed to be excluded from the definition of 'Liquor Store (Large)', because that definition refers to premises 'the subject of a liquor licence granted under the [LC Act]', meaning that the premises may be the subject of any type of liquor licence under the LC Act, whereas the definition of 'Tavern' refers to 'premises subject of a tavern licence granted under the provisions of the [LC Act]' and is therefore more specific in that it only nominates one type of liquor licence under the LC Act, namely, a tavern licence.
As ALH submits, there are several licences which may be granted under the LC Act permitting (in some cases subject to conditions) the sale of packaged liquor for consumption off the premises. These comprise:
•a 'hotel licence' (under s 41(2) of the LC Act);
•a 'hotel restricted licence' (prohibiting the sale of packaged liquor to persons other than lodgers) (under s 41(1)(b) of the LC Act);
•a 'tavern licence' (under s 41(1)(a) of the LC Act);
•a 'club licence' (permitting the sale of packaged liquor to members of the club) (unless it is a 'club restricted licence' in which case the Director of Liquor Licensing may still authorise the sale of packaged liquor to members '[w]here the Director is satisfied that members of a club which holds a club restricted licence cannot, without great inconvenience, obtain supplies of packaged liquor': s 48(9) of the LC Act) (under s 48(2), (3), (4) and (9) of the LC Act);
•a 'producer's licence' (under s 55(1) of the LC Act); and
•a 'wholesaler's licence' (under s 58(1) of the LC Act).
As ALH therefore correctly submits, a 'tavern licence' is 'but one of the several licences that fall within the Minister's modified land use definition of "Liquor Store (Large)'''.
In consequence, ALH submits that the definition of 'Liquor Store (Large)' 'must be seen as more general than that of "[T]avern" which permits only one of those various licences within its scope' and that, therefore, under cl 3.3(6) of TPS 6, the Dan Murphy's liquor outlet is deemed to be excluded from the 'more general terms' of the definition of 'Liquor Store (Large)'.
In contrast, the presiding member of the DAP submits that, for the purposes of cl 3.3(6) of TPS 6, the 'particular [u]se' of the Dan Murphy's liquor outlet is deemed to be excluded from the definition of 'Tavern', because '[t]he Dan Murphy's component does not fulfil any of the other functions of a Tavern: it does not provide unpackaged liquor, meals or entertainment'. The presiding member of the DAP also submits that the definition of 'Liquor Store (Large)' 'more specifically encapsulates the proposed use of the [s]ite for a Dan Murphy's store, because the definition specifically addresses the size of the proposed development (i.e. a net lettable area of more than 300m²) and the particular activities proposed to be undertaken at the [s]ite (i.e. the whole or a portion of the premises with a net lettable area of more than 300m² is used to display and sell packaged liquor for consumption off the premises)' (original emphasis).
In our view, although ALH is correct in its submission that the reference to 'tavern licence' in the definition of 'Tavern' is more specific than the reference to 'liquor licence' in the definition of 'Liquor Store (Large)', ALH's submission as to which of these definitions is relevantly more specific and which is relevantly more general, for the purposes of cl 3.3(6) of TPS 6, ignores the activities that comprise the 'particular [u]se'. In a land use classification exercise, the activities that comprise the particular use are key and cannot be ignored.
Notwithstanding that the proposed Dan Murphy's liquor outlet would operate under a 'tavern licence' under the LC Act and that this would permit (for the purposes of liquor control law) both the display and sale of packaged liquor for consumption off the premises and the sale of liquor for consumption on the premises, the 'particular [u]se' applied for and approved by the DAP on 17 April 2015 (for the purposes of land use planning law) involves only the display and sale of packaged liquor for consumption off the premises (and not the sale of liquor for consumption on the premises).
In our view, the Dan Murphy's liquor outlet development is relevantly 'a particular [u]se … defined in Schedule 1', namely, 'Liquor Store (Large)', within the meaning of cl 3.3(6) of TPS 6. This is in part because the proposed Dan Murphy's liquor outlet development and the 'Liquor Store (Large)' land use class definition both only involve the display and sale of packaged liquor for consumption off the premises.
Furthermore, because the definition of the land use class 'Tavern' in Sch 1 of TPS 6 refers to 'premises subject of a tavern licence granted under the provisions of the [LC Act]' and therefore allows for both the display and sale of packaged liquor for consumption off the premises and the sale of liquor for consumption on the premises (which the Dan Murphy's liquor outlet development does not involve), the Dan Murphy's liquor outlet use is 'deemed to be excluded from' the use class definition 'Tavern' in Sch 1 of TPS 6, as 'its more general terms might otherwise include such particular [u]se', within the meaning of cl 3.3(6) of TPS 6.
The 'Tavern' land use definition in Sch 1 of TPS 6 is relevantly in 'more general terms' than the 'Liquor Store (Large)' land use definition, in part because the 'Tavern' definition allows for the sale of liquor for consumption on the premises in addition to the display and sale of packaged liquor for consumption off the premises (unless the premises are the subject of a restricted tavern licence under the LC Act, which is not the case in relation to the premises on the site), whereas the 'Liquor Store (Large)' definition does not allow for the sale of liquor for consumption on the premises in addition to the display and sale of packaged liquor for consumption off the premises.
Furthermore, the Dan Murphy's liquor outlet development is relevantly a 'particular [u]se … defined in Schedule 1', namely, 'Liquor Store (Large)', and is relevantly included in the definition of 'Tavern' in Sch 1 'by its more general terms', in part because the definition of 'Liquor Store (Large)' includes a specific minimum site area requirement for the portion of the premises used to display and sell packaged liquor for consumption off the premises (that is, more than 300 square metres), whereas the definition of 'Tavern' does not include any such requirement. This is a further reason why the Dan Murphy's liquor outlet development is deemed to be excluded from the definition of 'Tavern'.
Thus, the apparent 'Gordian knot' of land use classification of the proposed development under TPS 6 is resolved by cl 3.3(6) of the Scheme. In our view, for the purposes of cl 3.3(6) of TPS 6, the Dan Murphy's liquor outlet use which is the subject of the development approval granted by the DAP on 17 April 2015 is 'a particular [u]se' defined in Sch 1 of TPS 6 in the land use definition of 'Liquor Store (Large)'. Furthermore, in our view, although the Dan Murphy's liquor outlet use also falls within the land use definition of 'Tavern' in Sch 1 of TPS 6, that definition includes that particular use 'by its more general terms', because its terms extend not only to premises used to display and sell packaged liquor for consumption off the premises (if the premises are the subject of an unrestricted tavern licence granted under the LC Act), but also to the sale of liquor for consumption on the premises, and because it does not include any minimum site area requirement for the portion of the premises used to display and sell packaged liquor for consumption off the premises. It follows that, under cl 3.3(6) of TPS 6, the Dan Murphy's liquor outlet the subject of the development approval granted on 17 April 2015 is deemed to be excluded from the definition of 'Tavern' in TPS 6.
The proposed Dan Murphy's liquor outlet is, therefore, properly classified as 'Liquor Store (Large)' under TPS 6 (following the gazettal of Amendment No. 58), which is a prohibited use in the Highway Commercial zone of TPS 6. As the effect of the replacement of the definition of 'Liquor Store (Large)' by Amendment No. 58 to TPS 6 is that the Dan Murphy's liquor outlet would not be capable of development approval now under the Scheme, the gazettal of Amendment No. 58 to TPS 6 on 19 June 2018 constitutes a relevantly substantial (and, indeed, fundamental) change to the planning framework since the development approval was granted.

Is the development likely to receive approval now?

As, for reasons set out in the preceding section, the proposed Dan Murphy's liquor outlet on the site would not be capable of development approval now in the Highway Commercial zone of TPS 6, because of the replacement of the definition of 'Liquor Store (Large)' in Sch 1 of TPS 6 by Amendment No. 58, the Dan Murphy's component of the development would obviously not receive development approval now under the Scheme.
The presiding member of the DAP also submits that, if the Dan Murphy's liquor outlet development were capable of development approval under TPS 6, it is not likely to receive development approval now on a merit assessment, because, on the evidence of Mr Zeljko Zagorac, an officer of Main Roads WA, a further Traffic Impact Assessment (TIA) is required, but has not been prepared on behalf of ALH.
For the reasons which follow, on the evidence before us, we do not accept the presiding member of the DAP's submissions that a further TIA is required or that, in the absence of a further TIA, the development of a Dan Murphy's liquor outlet on the site is not likely to receive development approval now (assuming that it were still capable of development approval under TPS 6), because of traffic considerations.
ALH called Mr Behnam Bordbar, a qualified traffic engineer and transport planner with over 30 years' experience, to give evidence in relation to traffic issues. Mr Bordbar holds a Batchelor's degree in Civil Engineering and a Master's degree in Highway Transportation. He is also Senior Road Safety Auditor.
Mr Zagorac holds the position of Statutory Road Planning Manager at Main Roads WA. He is neither a traffic engineer nor a transport planner. Mr Zagorac holds trade qualifications in Motor Mechanics and Automotive Mechanical and has undertaken training in software programs concerning traffic. He is also a Road Safety Auditor.
Clearly, Mr Bordbar has significantly greater relevant qualifications and experience than Mr Zagorac in relation to the traffic considerations concerning the extension application.
Mr Zagorac considers that a further TIA is required in relation to the development for four principal reasons. The first reason is the change in the road geometry owing to the northern extension of the median barrier on Canning Highway precluding right in / right out movements between Canning Highway and Norton Street. As indicated in the agreed facts at paragraph 5.5, these works occurred in January 2018. The traffic impacts of the median barrier extension were not modelled in the TIA by Riley Consulting dated May 2014 (Riley report) which was submitted by ALH for the purposes of the development application approved by the DAP on 17 April 2015.
When asked by the Tribunal about the significance of the change in road geometry, Mr Zagorac gave the following evidence:
Any change geometrically on the road is a significant change, because it changes the dynamics of where traffic can move and how the traffic will perform on the network.
(ts 55, 29 May 2018) (Emphasis added)
We do not accept Mr Zagorac's evidence in this respect, because the significance of a geometric change in a road must involve a consideration of the level of traffic affected by the change. As Mr Bordbar explained in response to Mr Zagorac's evidence on this issue:
… the level of that significance depends on the level of traffic flow which is impacted. In this instance, the level of traffic flow which has been impacted, which is the right turn traffic from Canning Highway into Norton Street, and the right turns from Norton Street onto Canning Highway, that level of traffic is not significant volume of traffic, and therefore the disposition of that traffic the redistribution of that traffic, in my view, would not have a significant impact on the traffic operations of the road network.
The traffic which used to turn right at Norton Street, if that traffic was part of the development, that traffic would simply exit onto South Terrace, go to the traffic lights, and then go wherever they they they need to go, as they do today. Traffic from the development today can exit left onto South Terrace and then go to the traffic light and then redistribute. The traffic which was turning right from Canning Highway into Norton Street, that traffic simply travels to the existing traffic signals, and under the protection of the traffic signals, will turn right into South Terrace.
And then as part of the proposed development, the existing crossover, the development crossover on South Terrace is being relocated further west, and that crossover, which currently only permits left in and left out movement, permits full movement, so that redistributed traffic can then travel along South Terrace, go to the new crossover and turn right into the subject site.
So if that volume of that dispersed traffic is significant, then the impact on the road network can be considered as significant. If the volume of that dispersed traffic is not significant, then the impact can be considered as insignificant. So my view is that that impact is insignificant because the dispersed traffic volumes are insignificant.
(ts 56-57, 29 May 2018)
Mr Bordbar's evidence that the 'impact is insignificant because the dispersed traffic volumes are insignificant' (ts 57, 29 May 2018) is supported by a traffic assessment prepared by the consultancy firm Cardno for the City in relation to the development in November 2014 (Cardno report). The Cardno report states at 3.1.4.1 as follows:
Based on the site inspection on 5 September 2014, the demand from right turning vehicles from Norton Street into Canning Highway is very low, as a result it is expected that changing the configuration to left in left out only will not have any effect on the number of vehicles visiting the proposed redevelopment.
Mr Bordbar's opinion in relation to the degree of significance of the change in road geometry is also supported by crash statistics stated in a Road Safety Audit prepared by the consultancy firm AECOM on behalf of Main Roads WA in relation to the Canning Highway and Norton Street intersection (AECOM report). Section 3.4 of the AECOM report states that crash statistics for the five year period from 1 January 2009 to 31 December 2013 indicate that there was only one crash recorded at the intersection of Canning Highway and Norton Street which was 'a sideswipe (same direction) collision between two vehicles travelling westbound on Canning Highway'. As Mr Bordbar said in his evidence:
[U]sually the number of crashes are proportionally relevant to the volume of traffic, so one can conclude, as there has been one crash only at that intersection, the turning volumes at that intersection would have been low.
(ts 60, 29 May 2018)
Mr Zagorac responded to Mr Bordbar's evidence concerning the low volume of traffic that has been displaced by precluding right in / right out movements at the Canning Highway and Norton Street intersection, by referring to the impact of traffic on Canning Highway that is no longer able to turn right into Norton Street and would therefore proceed to the next right turn opportunity at South Terrace and enter the right turning lane at the Canning Highway and South Terrace intersection, as follows:
So so what I'm saying is that demand that was going to Norton now has to use this right turn pocket, which hasn't been demonstrated, and whether that capacity is there for that (indistinct) that right turn pocket.
(ts 62, 29 May 2018)

Mr Bordbar effectively answered Mr Zagorac's observation as follows:
And Mr Zagorac was hinting that the capability of that right turn to accommodate that extra traffic hasn't been established. Now, onsite observations indicated that the maximum queue of vehicles in that right turn during the (indistinct) pm peak hours is no more than three or four cars, and and therefore the extra cars during that peak hour that may need to come to that right turn lane can be accommodated in the balance of storage capacity of that right turn.
So what that tells me that the the demand, at the moment, for that right turn from Canning Highway into South Terrace is not significant, and I think that's something that has been also mentioned by Cardno in their report, that that the road network has got the capacity and the standard to accommodate the traffic from the development.
It all comes back down to the issue of the significance of the displaced traffic. If it's not significant, then (indistinct) signalised intersection, which is designed and constructed to take traffic in a significant way, can accommodate that margin of increase in traffic.
(ts 62-63, 29 May 2018)
Main Roads WA's letter dated 22 November 2017 recommending refusal of the extension application also provides some support for Mr Bordbar's evidence in relation to this aspect. The letter states as follows in relation to the then proposed extension of the Canning Highway median barrier to preclude right in / right out movements at the Canning Highway and Norton Street intersection:
Whilst it is recognised that this intersection modification may place more pressure on the South Terrace access, it is considered to be a much safer option for motorists travelling within this precinct as this controlled intersection affords motorists the ability to travel in all directions in a safe environment.
In light of Mr Bordbar's qualifications and significant experience as a traffic engineer and transport planner, the reasoned evidence that he gave and the support in the other evidence we have referred to, we accept Mr Bordbar's evidence in relation to the change in road geometry and its significance. On this evidence, we find that the volume of traffic displaced by the extension of the Canning Highway median barrier to preclude right in / right out movements at the Canning Highway and Norton Street intersection does not warrant a further TIA in relation to the development and that the level of additional traffic resulting from that change which would wish to turn right from Canning Highway into South Terrace can be effectively accommodated by the 'signalised intersection, which is designed and constructed to take traffic in a significant way'.
The second reason given by Mr Zagorac for his opinion that a further TIA is required in relation to the development is that 'the Traffic Data has dramatically changed since the TIA [that is, the Riley report]' (emphasis added). In his oral evidence, Mr Zagorac said that the 'data shows … a significant growth in the local traffic from that site count' (emphasis added) (ts 64, 29 May 2018).
However, the evidence does not indicate that there has been a 'dramatic' or 'significant' increase in traffic on Canning Highway or South Terrace in the location of the site between the Riley report and the present.
The Riley report utilised traffic volumes of 30,590 vehicles per day for Canning Highway (2008/2009 data) and 9,800 vehicles per day for South Terrace (2004 data). In their joint statement, Mr Bordbar and Mr Zagorac said that the 'latest traffic volumes' are 32,300 vehicles per day for Canning Highway (2016 and 2017/2018 data) and 11,500 vehicles per day (2016 data) and 11,900 vehicles per day (2017/2018 data) for South Terrace.
Furthermore, as Mr Bordbar pointed out, the Riley report did not just refer to a figure of 30,590 vehicles per day for Canning Highway, but, immediately after referring to this figure, said the following:
Due to the restricted nature of the carriageway, traffic volumes vary between 26,000vpd to 32,000vpd along this section of [Canning Highway] and have remained static for many years.
The traffic data therefore does not indicate a 'dramatic' or 'significant' increase in traffic on Canning Highway or South Terrace between the data referred to in the Riley report and the latest data.
Furthermore, and in any case, as Mr Bordbar explained, the various traffic volumes referred to are simply a 'snapshot' as at the date the data was collected. More significant than a 'snapshot' is the 'trend' in traffic volumes. As indicated earlier, the Riley report recognised that traffic volumes on Canning Highway in the location of the site have varied between 26,000 and 32,000 vehicles per day 'and have remained static for many years'. Mr Bordbar also gave the following evidence which, given his qualifications and experience, we accept:
But in an overall sense, if we have a look at the trend in the traffic flow over the last 10 years, 12 years in that area, in my view, traffic flows and traffic counts has been relatively steady, because traffic volumes on road fluctuate every day. We all experience it. When we drive on a certain road one day, it's flowing very well, and the next day it's not flowing well and it's busy because the traffic fluctuates, and there is no real sensible explanation why that fluctuation occurs in traffic.
So, depending on which day of the week, which week of the month and which year, a snapshot of that traffic is taken. It might be slightly more or it might be slightly less. Because the fluctuation in traffic count shows slight increase and slight decreases, what that tells me that basically the traffic is fairly steady and static in that area within the accuracies of those snapshots, because the traffic counts are a snapshot in a moment within 365 days.
If there are regular growth every year that you do traffic counts, it shows growth, significant growth if the area is being redeveloped significantly, but that area is not being redeveloped significantly. There are no major changes in zoning or significant other developments. So that's why the traffic is fairly steady, plus/minus 1000, 2000 vehicles per day, in my view, within the accuracy, if you like, if I can term it that way, of traffic counts which have been undertaken.
So my view is that there hasn't been a significant change in traffic volumes over the last 10 years. I wouldn't say there has been a significant increase, nor would I say there has been a significant decrease. What I would conclude is that there has not been a significant change in traffic volumes in that locality.
(ts 65-66, 29 May 2018)
The third reason given by Mr Zagorac for his opinion that a further TIA is required for the development is that, in consequence of what he considers to be the 'significant' traffic disruption resulting from the northern extension of the Canning Highway median barrier to preclude right in / right out movements at the Canning Highway and Norton Street intersection and the 'significant increase in traffic numbers in the locality of the site since the Riley report', a revised technical analysis is required as to the level of service that would be achieved at the intersection of South Terrace and Canning Highway, including the traffic that would be generated by the development.
For reasons set out earlier, we do not accept Mr Zagorac's characterisation of the disruption of traffic as a result of the change in the geometry of Canning Highway or the increase in traffic volumes in the locality of the site between the volumes referred to in the Riley report and the present as 'significant'. Furthermore, and in any case, we accept Mr Bordbar's opinion that a further technical analysis of the performance of the intersection is not required, because, as he said:
[The Commission's] guidelines for transport assessment sets a framework that when a detailed analysis is required and when a detailed analysis is not required, the threshold for that decision is set at a 10 per cent increase of traffic as a result of development on a road[.]
(ts 70, 29 May 2018).
Whereas the Commission's guidelines set the threshold for requiring a technical analysis of intersection performance at a 10 per cent increase in traffic as a result of development, as Mr Bordbar said (referring to figures in the Riley report which were not seriously questioned), the increase in traffic due to the development is about 1.2 per cent on Canning Highway and about 2 per cent on South Terrace. As Mr Bordbar concluded:
So the traffic increases are significantly below the 10 per cent threshold that warrants a detailed analysis, warrants a [SIDRA] analysis.
So, in my opinion, and based on those guidelines, one can conclude that that level of increase can be accommodated by the road network, including the signalised intersection, without any need for detailed analysis, which was basically the conclusion which was made by Cardno in their report that we referred to earlier, which was undertaken for City of South Perth.
(ts 70, 29 May 2018)
The Cardno report prepared for the City provides a technical analysis, using the SIDRA program, of intersection performance of the Canning Highway and South Terrace intersection. The Cardno report determined that the overall level of service at that intersection, including additional traffic generated by the development, would be 'E', on a scale of 6 levels of service designated from 'A' to 'F', with level of service 'A' representing the best operating condition (i.e. freeflow) and level of service 'F' representing the worst operating condition (i.e. forced or breakdown flow).
Mr Bordbar was cross-examined in relation to the level of service determined in the Cardno report at the Canning Highway and South Terrace intersection and was asked whether, given the level of service 'E' of the intersection determined in the Cardno report 'and with some additional traffic from Norton Street', 'it would not be prudent to undertake a detailed assessment of that crossover and how it will function?'. Mr Bordbar responded:
It would be advantageous to do that for it. Yes.
(ts 24, 30 May 2018)
The fact that Mr Bordbar was prepared to make this concession only serves to underscore the integrity of his evidence and the considered nature of his opinions. However, as he went on to explain, the SIDRA analysis models level of service at peak times in terms of traffic volumes and that, at peak times, 'the queue [of cars] extends past the site today …' (ts 24, 30 May 2018). As he explained, at present and in the future, the only way a vehicle can exit the site on South Terrace at peak times, given that the queue already extends beyond the site, is for drivers in the queue to allow a gap. As he said 'unfortunately that's something which is difficult to simulate in a modelling exercise' (ts 25, 30 May 2018). Mr Zagorac agreed that 'the model actually doesn't model courtesy' (ts 26, 30 May 2018).
Given that the northern extension of the Canning Highway median barrier to preclude right in / right out movements at the Canning Highway and Norton Street intersection does not result in significant dislocation of traffic and given that there has not been a significant increase in traffic volumes between the data referred to in Riley report and the present, and on the basis of Mr Bordbar's evidence generally, we do not consider that a further TIA is required for the development so as to provide a further technical analysis of the level of service performance at the Canning Highway and South Terrace intersection.
The fourth reason given by Mr Zagorac for his opinion that a further TIA is required for the development is the introduction, since the approval of the development in April 2015, of the Traffic Signal Improvement Program by Main Roads WA. Mr Zagorac explained this change as follows:
So the Traffic Signal Improvement Program is essentially optimising the signals in a network where they talk to each other upstream, downstream, and then the signals or the SCATS system, which is a computer that runs that, determines the demand for where the green time is going to be allocated. Now, with the increase in traffic, the green time will be favouring the regional road, this being Canning Highway. It will actually put the burden to the side road.
…
So the change is the priority on how the signals or the loops in the road will measure traffic and how they will prioritise that movement. So at the moment the priority is Canning Highway, so it will simply favour it's a technical realm with SCATS, but it will favour Canning Highway. Where it can, it will allow some dispensation to another road, depending how that road is networked, as in the side roads, so in this case where it's South Terrace, it may favour one side of South Terrace by giving more green time while taking away more green time on the other side, but any green time available at either end, that time will then go back to Canning Highway, which is what we call (indistinct)[.]
(ts 77, 29 May 2018)
However, Mr Bordbar considers that a further TIA is not required because of this change for the following reason:
Mr Zagorac mentioned that the objective of the Traffic Signal Improvement Program was to optimise traffic signals in the overall network, and that results in better operations of the road network. It's not a measure which is intended to be detriment to the road network, so for all intents and purposes, since the changes has been made, the network as a whole must have improved.
(ts 77-78, 29 May 2018)
Given Mr Bordbar's qualifications and experience and the logic underlying the evidence in the quotation in the preceding paragraph, we accept Mr Bordbar's opinion that a further TIA is not required for the development as a result of the Traffic Signal Improvement Program.
Finally in relation to traffic, in the letter from Main Roads WA dated 22 November 2017 recommending refusal of the extension application, Main Roads WA notes that, having recently re-examined information provided in the context of the development application and upon 'closer scrutiny of the proponent's traffic engineering information', 'the swept paths are modelled on an incorrect design vehicle'.
Mr Bordbar agreed that the swept path plans for servicing vehicles at the site submitted as part of the information in relation to the development application were incorrect. He said that this was because 'the architect did not press the relevant button so that the simulation is undertaken for right-hand vehicle; therefore, everything is kind of upside down on that simulation' and gives the impression that 'service vehicles will have to exit onto Canning Highway in reverse gear' (ts 83, 29 May 2018).
Consequently, Mr Bordbar prepared revised swept path diagrams and provided them to the Tribunal as an attachment to his joint statement with Mr Zagorac. The revised swept path diagrams prepared by Mr Boardbar demonstrate that a 12.5 metre long servicing vehicle with a turning radius of 12.5 metres to the outside front wheel can enter the site in a forward direction at the proposed driveway for the development on South Terrace and can exit the site in a forward direction onto Canning Highway.
Mr Zagorac criticised the use of a 12.5 metre long truck with a 12.5 metre turning radius for Canning Highway, indicating that a 15 metre turning radius should have been used. However, as Mr Bordbar explained, the selection of a 12.5 metre long truck with a 12.5 metre turning radius was based on a figure published on Main Roads WA's website showing such a vehicle. We therefore find that Mr Bordbar's revised swept path diagrams model the correct servicing vehicle.
Mr Zagorac also criticised the revised swept path diagram prepared by Mr Bordbar depicting the path of a servicing vehicle turning left out of the site onto Canning Highway, on the basis that the blue line on the swept path diagram (which depicts a 500 millimetre clearance for the servicing vehicle) touches the inside kerb of the roadway. However, as Mr Bordbar explained, that 'indicates that there is 500 millimetre clearance between the vehicle body and the kerb' (ts 39, 30 May 2018).
Furthermore, and in any case, as Mr Boardbar explained, the fact that the blue line on the swept path diagram touches the inside kerb does not give rise to any concern for two reasons. First, 'this is only a simulation … only [a] model' and '[t]he reality is this: the service vehicle [is] currently used at [the] crossover to exit onto Canning Highway, and, again, no one has raised an issue in terms of the operation of that crossover, in terms of [the] service vehicle' (ts 39, 30 May 2018). Secondly, 'if, for whatever reason, that crossover needs to be adjusted, then it just gets adjusted. That kerb gets shaved and adjusted to whatever requirement is required' (ts 39, 30 May 2018).
Consequently, if the Dan Murphy's liquor outlet were capable of development approval under TPS 6 (which, as discussed earlier, is not the case since 19 June 2018), it would not be refused development approval on a merit assessment on account of traffic considerations.

Has ALH actively and relatively conscientiously pursued implementation of the development approval?

ALH submits that it has actively pursued the implementation of the development to the extent that it could and that its failure to do more is due to 'factors beyond its control'. In particular, as Senior Counsel for ALH said in opening, the liquor application for alteration and redefinition of the tavern licence to enable the development to be carried out has involved a 'quite extraordinary process … which has limped along, through no fault of the applicant' (ts 25, 29 May 2018).
In contrast, the presiding member of the DAP submits that, although 'clearly the applicant can't act on the Dan Murphy's component of the development without redefinition of its liquor licence, … we say few and no substantive steps have been taken to advance the balance of the proposed development, particularly before the approval lapsed' (ts 31, 31 May 2018). The presiding member of the DAP submits that, for this reason, ALH has not actively and relatively conscientiously pursued implementation of the development approval.
In our view, ALH has certainly actively and conscientiously pursued implementation of the development approval. As indicated in the presiding member of the DAP's submission referred to in the preceding paragraph, it is common ground that ALH cannot construct the Dan Murphy's liquor outlet component of the development without approval of its pending application for alteration and redefinition of the tavern licence for the premises. The common position of the parties is clearly correct in light of the terms of s 77 of the LC Act. Section 77 of the LC states, in part, as follows:
(1)Subject to subsection (3), an owner, occupier or licensee of licensed premises, shall not, without the prior approval of the Director, make any alteration in
(a)the construction or completion of premises the subject of plans or specifications submitted under section 62, in such a way as materially to alter the veracity of those plans or specifications; or
(b)any licensed premises.
Penalty: a fine of $10 000.
…
(3)For the purposes of this section
(a)an alteration shall be deemed to be made if it comprises or consists of
[(i)deleted]
(ii)a change to the use of any premises, accommodation or facilities; or
(iii)an addition to, or reduction in the area of, the premises;
and
(b)the renovation of, or of the accommodation or facilities provided by, the premises shall, if it is not an alteration of a kind referred to in paragraph (a), be deemed to be work that does not require the prior approval of the Director.
(4)On application in writing being made by the owner or occupier of the licensed premises, or by the licensee with the consent of the owner and any lessor, the licensing authority may approve
(a)a proposed alteration of licensed premises; or
(b)unless section 80 applies, the redefinition of the licensed premises as defined in the licence.
(5)The licensing authority shall not approve an application made under subsection (4) unless satisfied that all other approvals, consents or exemptions required by law in respect of that alteration have been obtained, and if so satisfied may vary the terms or conditions of a licence accordingly.
…

Under s 77(1) of the LC Act, it is an offence to make any 'alteration' in 'any licenced premises' without approval under that Act. Under s 77(3)(a) of the LC Act an 'alteration' includes 'a change to the use of any premises' and 'an addition to, or reduction in the area of, the premises'. Cleary, the construction of the proposed Dan Murphy's liquor outlet over part of the area of the footprint of the existing Como BWS Drive-through liquor outlet and over areas outside that footprint currently used for car parking and driveways, involves an 'alteration' of the licenced premises on the site requiring approval in terms of alteration and redefinition of the tavern licence.
In cross-examination, it was suggested to Mr Bateman that 'renovation work' to the Como Hotel, which was also approved in the grant of development approval in April 2015, is deemed to be excluded from constituting an 'alteration' requiring an approval under the LC Act by s 77(3)(b) of that Act. However, Mr Bateman, who has provided project management services for numerous sites operated by ALH in Western Australia since 2007, gave evidence that, although renovation work does not strictly require approval under the LC Act, in his experience, '[it] still requires … an application for alteration and redefinition' (ts 43, 29 May 2018). He said that he 'recently undertook that exact process at the Patriots Bar for ALH, where we … modified the shape of the bar … in the understanding that we did not need to do an alteration and redefinition' (ts 43, 29 May 2018). However, the liquor licencing authority 'came in and inspected it, and then we had to subsequently lodge an application for alteration and redefinition' (ts 43, 29 May 2018). He said that while that was a different application, 'it's an example that you can't redo anything [to licenced premises without approval under the LC Act]' (ts 43, 29 May 2018).
No contrary evidence was presented by the presiding member of the DAP. Given Mr Bateman's experience with liquor licencing applications, we accept his evidence that, in practical terms, ALH requires approval of an application for alteration and redefinition of its tavern licence for the premises at the site in order to implement the development approval. Furthermore, even if technically renovation work to the Como Hotel could be carried out without approval under the LC Act, given that the Dan Murphy's liquor outlet forms an integral part of the development, it was entirely reasonable for ALH to include all parts of the development in the application for alteration and redefinition of the tavern licence.
As Mr Bateman said in evidence, making an application under the LC Act 'requires significant evidence in support of the application' and this involves 'the appointment of a team of expert consultants'. It also requires public surveys, Trade Area Reports, inclusion of Police and Health Department data and statistics and town planning reports. Consequently, as Mr Bateman said, an application for approval under the LC Act typically takes four to six months to prepare. ALH also had to wait for the City to issue a 'section 40 certificate' (required by s 77(5) of the LC Act), which was obtained on 30 August 2015.
ALH lodged the application for alteration and redefinition of the tavern licence on 30 October 2015, a little over 6 months after development approval was granted by the DAP. This was a reasonable period to prepare and lodge the application in all of the circumstances.
As Mr Bateman said in evidence, the application for alteration and redefinition of the tavern licence has cost ALH and related companies $360,270.08 to date.
It is certainly 'extraordinary' (as Mr Howard SC said in opening for ALH) that, over two-and-a-half years after the lodgement of the application for alteration and redefinition of the tavern licence, and after such significant costs have been incurred by the applicant, the application is still not determined. We also accept ALH's submission that the significant delays in the liquor licencing process have occurred 'through no fault of the applicant'. Indeed, we find on the agreed facts at paragraphs 1.9 1.20 and the evidence of Mr Bateman that ALH has actively and conscientiously pursued and prosecuted the application for alteration and redefinition of the tavern licence to enable the approved development to be carried out.
Given that the development as a whole, and the construction of the Dan Murphy's liquor outlet in particular, cannot lawfully proceed without approval of the application for the alteration and redefinition of the tavern licence under the LC Act, and given that ALH has actively and conscientiously pursued and prosecuted that application (at considerable cost), we are satisfied that ALH has actively and conscientiously pursued implementation of the development approval.
Mr Allerding gave evidence that, in his experience, 'considerable "work" can be undertaken towards implementing [a development] approval before physical works occur on site'. He said that this often applies 'with developments where certain conditions of approval need to be met before physical work can practically occur on site'. Mr Allerding identified 16 of the 33 conditions of development approval requiring ALH to undertake 'actions either wholly or as part of their conditions that can be implemented either before construction or prior to occupation'.
Mr Bateman was also cross-examined in relation to a number of these conditions. ALH satisfied one of these conditions (condition 27, requiring amalgamation of the lots that previously formed the site) before the development approval lapsed. Mr Bateman explained in relation to another of these conditions (condition 8, relating to obtaining a written agreement from Main Roads WA and the City for all required roadworks associated with the development) that '[w]e commenced that process with the City' and '[t]he City took the position that they wanted to resolve any issues, particularly … with reference to crossovers and road widenings … prior to formal submissions to Main Roads' (ts 41, 29 May 2018). In relation to other conditions (such as conditions 10 and 11, requiring the submission of a report showing all measures undertaken to reduce the environmental footprint of the development and a Waste Management Plan prior to submission of a building licence application), Mr Bateman said that this 'cannot be done until the design is well advanced from architectural and engineering perspectives, so we seek compliance … of the Building Code' (ts 41, 29 May 2018).
Mr Bateman gave evidence, which was not questioned or contradicted and which we accept, that ALH has incurred over $600,000 in legal fees and over $325,000 on consultant fees, including architects, town planners, project managers and engineers, thus far, in obtaining the development approval, defending the validity of the approval in the Supreme Court and in the Court of Appeal, and in lodging and pursuing the application for alteration and redefinition of the tavern licence. He also gave evidence, which was not questioned or contradicted and which we accept, that, based on his experience, the process of applying for and obtaining a building licence for the development the subject of the development approval would cost approximately $350,000.
In our view, in the circumstances of this case, ALH acted entirely reasonably and appropriately in actively pursuing approval of the application for alteration and redefinition of the tavern licence and not also seeking to satisfy the conditions of the development approval (other than condition 27) and applying for a building licence. As Mr Bateman said in relation to the liquor application, 'there is obviously a great deal of risk involved' and '[i]f the liquor licence, for example, was refused, then … the full set of working documents would be of no effect' (ts 42, 29 May 2018). In the circumstances of this case, it was entirely reasonable for ALH to not proceed to incur the cost of $350,000 to prepare detailed architectural and engineering drawings for the purposes of a building licence and to seek to satisfy conditions of development approval, unless and until it obtained approval for the alteration and redefinition of the tavern licence in relation to the premises. Preparing detailed drawings and seeking to satisfy the detailed conditions of the development approval would be futile if the liquor application is not approved.
For the reasons given above, we find that ALH has actively and conscientiously pursued implementation of the development approval.

Has ALH sought to 'warehouse' the development approval?

It is common ground and plainly the case that ALH has not sought to 'warehouse' the development approval. ALH does not seek an extension of the period for substantial commencement of the development in order to obtain 'a windfall by selling the land' (Kantor v Murrindindi Shire Council at 313).
Mr Bateman gave evidence, which was not questioned or contradicted and which we accept, that:
Subject to receiving the necessary approval from the Liquor Commission pursuant to the Liquor Application, and a building licence … I know that ALH is ready and able to commence works to implement the [development] [a]pproval immediately.

Was the two-year period for substantial commencement originally imposed adequate?

The two-year period for substantial commencement imposed by condition 33 of the development approval was wholly inadequate as a substantial commencement period in the circumstances of this case.
As indicated earlier, although ALH lodged the application for alteration and redefinition of the tavern licence a little over six months after it obtained development approval (which, as we have found earlier, was a reasonable period in all the circumstances), it still has no determination of the application more than two-and-a-half years later. Certainly, in comparison to how long it takes the State Administrative Tribunal to typically resolve planning and other disputes, the liquor application process has taken an extraordinarily long time, and is still without conclusion.
It is by no means only with the benefit of hindsight that the twoyear period for substantial commencement originally imposed can be seen to be wholly inadequate. ALH was aware of the complexity and length of time that liquor licencing applications can take when the development approval was granted and therefore sought a longer period for substantial commencement at that time.
The DAP granted development approval on 17 April 2015 following an application to the Tribunal for review of the deemed refusal of the development application and an invitation by the Tribunal to the DAP, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to reconsider its deemed refusal and make an actual determination in relation to the development application.
On 14 May 2015, the solicitors for ALH wrote to the Tribunal indicating that they received 'the formal written decision' of the DAP granting development approval on 6 May 2015 and that ALH 'raises issue with, and seeks a review of' two of the conditions of development approval, including the condition requiring that substantial commencement must occur within 24 months of the date of approval. ALH's solicitors filed a statement of issues in relation to the review of this condition stating as follows:
(a)The Applicant submits that the condition is re-worded as follows:
'The validity of this approval shall cease if construction is not substantially commenced within 36 months of the date of planning approval.'
(b)Clause 7.9(4)(b) of the City of South Perth Local Planning Scheme No. 6 provides authority for the Respondent to nominate a timeframe for substantial commencement at its discretion.
(c)The Applicant requires a redefinition of its current liquor licence to operate the development as proposed in the development application. The Applicant's experience with other similar redefinition applications has shown that this is a lengthy process. An approval is unlikely to be received from the Liquor Commission and the development to have been substantially commenced within 24 months.
(d)The Applicant cannot reasonably be expected to substantially commence the development until it has all of the necessary approvals in place.
(Emphasis added)
Under s 31(3) of the SAT Act, the proceeding concerning the development application was 'taken to be for the review of … the substituted decision', that is, for the review of the decision to grant conditional development approval, unless the proceeding for review is withdrawn. The proceeding was not withdrawn by ALH at that time and the Tribunal made a further order, pursuant to s 31 of the SAT Act, inviting the DAP to reconsider its decision in relation to the two disputed conditions.
At its meeting on 13 August 2015, the DAP resolved to amend the other disputed condition and, by a vote of three to two, to not amend condition 33. The DAP's stated reason for this decision was as follows:
On majority vote the DAP felt that 24 months was appropriate acknowledging that some planning guidelines may change in the future and that the applicant has the right and avenues to apply for an extension of time through the DAP.
Although ALH could have sought a hearing before the Tribunal in relation to the DAP's decision to impose (and affirm) condition 33, it elected to seek leave to withdraw the application for review. On 20 August 2015, the Tribunal granted leave to ALH to withdraw the proceeding, pursuant to s 46(1) of the SAT Act, and the proceeding was withdrawn.
Although ALH elected to withdraw the earlier proceeding, it is clear from the fact that it initially contested condition 33 and from its reasons for doing so set out in the statement of issues on 14 May 2015 that it understood that an approval was unlikely to be received in relation to the application for alteration and redefinition of the tavern licence within the period specified in condition 33. It is clear from ALH's proposed amended condition in its statement of issues in May 2015 that it considered that three years would be required for the foreshadowed liquor application to be determined.
Furthermore, although ALH elected to withdraw the SAT proceeding, as indicated earlier, the DAP's reason for refusing to amend condition 33 included that 'the applicant has a right and avenues to apply for an extension of time through the DAP'. Indeed, this is what ALH did in October 2017.
We find that the period for substantial commencement imposed by condition 33 was, in all the circumstances, wholly inadequate, taking into account the steps which would be necessary before the construction of the development could actually commence.
This case highlights the need for careful consideration to be given by planning consent authorities, applicants for development approval and those advising them, at the time when development approval is sought and granted, as to what is a reasonable and adequate period for substantial commencement of the development to occur. This is particularly so where other regulatory approvals are required to be obtained before construction can occur and where conditions of development approval are particularly complex, lengthy or timeconsuming to satisfy before a building licence can be obtained and physical development can occur on the development site.

Section 242 submissions

The Tribunal granted leave to Ms Karen Kennedy and Ms Lyn GrieveMatthews to each make a written submission in relation to the application under s 242 of the PD Act. Ms Kennedy and Ms GrieveMatthews each own a unit in the adjoining residential complex comprising three units to the immediate west of the site. Ms Grieve-Matthews has resided in her unit on the adjoining property since November 2003.
Both submitters opposed the Dan Murphy's liquor outlet part of the development, principally because of the additional traffic that would be generated by a significantly larger liquor outlet than presently exists on the site and amenity consequences of the development.
Since she has lived at the adjoining property over the last 14-and-a-half years, Ms Grieve-Matthews has noticed 'a far greater volume of traffic which impacts on private residents trying to enter or exit their crossovers'. Consistently with the traffic evidence referred to earlier, which indicated that during peak times the queue of cars presently extends beyond the location of the proposed driveway on the site near to the common boundary with Ms Kennedy's and Ms Grieve-Matthews' residential complex, Ms Grieve-Matthews says that she has to 'rely on the kindness of strangers to let me in to the line and then I can only turn left'. She says that she would never try to turn right into her driveway when travelling from the intersection of Canning Highway and South Terrace, 'because I would be facing an unbroken line of vehicles'. She also says that she would not attempt to turn right out of her driveway (during peak times), because 'it would result in an accident'.
Both Ms Kennedy and Ms Grieve-Matthews are also concerned about the pedestrians, including school children, at the intersection of Canning Highway and South Terrace and the impact of additional traffic generated by the development on pedestrians. Ms GrieveMatthews provided the Tribunal with photographs showing pedestrians crossing at the lights with cars backed up due to the amount of traffic.
Ms Grieve-Matthews is also concerned about the proposed relocation of two large electrical transformer boxes which would abut the common boundary with her residential complex as a result of the proposed relocation of the driveway for the site on South Terrace.
While the Tribunal appreciates the concerns expressed by the submitters, as found earlier, on the evidence before the Tribunal, there has been no significant change in the traffic circumstances of the site and locality between April 2015 and the present. The issues and concerns identified by Ms Kennedy and Ms Grieve-Matthews were issues and concerns at the time when the development approval was granted by the DAP. Furthermore, as Mr Bordbar said, the unfortunate queuing of vehicles in South Terrace in the vicinity of Canning Highway at peak times does not occur outside of peak times.
Finally, in relation to the s 242 submissions, Ms GrieveMatthews refers to the change in the geometry of Canning Highway through the extension of the median barrier to the north so as to preclude right in / right out movement at the intersection of Canning Highway and Norton Street and expresses the concern that this has 'meant a rerouting of traffic towards the major arterial road of South Terrace because motorists want to be able to head East or South'. However, as found earlier, the volume of traffic relocated by the change in road geometry on Canning Highway is not significant and, as Main Roads WA said in its letter in relation to the extension application on 22 November 2017, whilst this change 'may place more pressure on the South Terrace access, it is considered to be a much safer option for motorists travelling within this precinct'.

Exercise of discretion

The purpose of this review proceeding is 'to produce the correct and preferable decision at the time of the decision upon the review' (s 27(2) of the SAT Act). In exercising the discretion as to whether to approve, with or without conditions, or to refuse the extension application under reg 17(4) of the DAP Regs, the Tribunal must balance its findings in relation to each of the matters for consideration set out earlier in these reasons.
As we have found, the planning framework has changed substantially since the development approval was granted, because the Dan Murphy's liquor outlet is now properly classified as 'Liquor Store (Large)' under TPS 6, which is a prohibited use in the Highway Commercial zone under the Scheme. Consequently, the development of the Dan Murphy's liquor outlet cannot now lawfully be approved on the site under TPS 6. These findings are powerful considerations against approval of the extension application.

However, at the time when ALH lodged the extension application on 19 October 2017, the City had not yet initiated Amendment No. 58 to TPS 6 (which occurred on 14 November 2017), and the Dan Murphy's liquor outlet only became prohibited on the site upon the gazettal of Amendment No. 58 eight months after the extension application was lodged. Certainly, Amendment No. 58 to TPS 6 was a relevant matter for consideration in the exercise of discretion as to whether to approve, with or without conditions, or refuse the extension application from the time Amendment No. 58 became a 'seriously-entertained planning proposal' when it was advertised by the City for public consultation from late December 2017 until early February 2018. Applying the 'Coty' principle (see Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [40]-[68] and Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [197][206]), appropriate weight would have been given to draft Amendment No. 58 as a seriously-entertained planning proposal in the exercise of discretion as to whether to approve, without or without conditions, or refuse the extension application. However, significant weight would only have been given to Amendment No. 58 to TPS 6 from the time when the Commission's and the Minister's positions in relation to the Amendment were known, that is, from 1 May 2018 and 9 May 2018, respectively. Given that Amendment No. 58 was initiated by the City, it is only when the Commission's and the Minister's positions were known that the gazettal of draft Amendment No. 58 in a form that would prohibit the Dan Murphy's liquor outlet on the site would have been regarded as relatively certain and imminent for significant weight to be given to it. That was over six-and-a-half months after the extension application was lodged.
As we have also found, ALH has actively and conscientiously pursued implementation of the development approval through applying for and prosecuting the application for alteration and redefinition of the tavern licence (which is still not determined over two-and-a-half-years after it was lodged) and the two-year period for substantial commencement originally imposed by condition 33 was wholly inadequate, given the requirement to obtain approval under s 77 of the LC Act before ALH could commence construction of the Dan Murphy's liquor outlet. These findings, particularly in combination, are powerful considerations in favour of approval of the extension application. Given that the approved development involves construction of premises requiring alteration and redefinition of a licence under the LC Act and the significant period of time it appears that an application under that Act takes to be determined, the construction of the Dan Murphy's liquor outlet development could not have been substantially commenced within the two-year period originally imposed.
As indicated earlier, ALH anticipated that two years would be inadequate for substantial commencement and sought a period of three years for substantial commencement at the time when the development approval was granted. The DAP refused to modify condition 33, but said in its reasons for refusal that ALH 'has the right and avenues to apply for an extension of time through the DAP'. ALH did just that at a time when the Dan Murphy's liquor outlet development was not prohibited on the site and before the City initiated the process which led to its prohibition.
In our view, on balance, in the exercise of discretion under reg 17(4) of the DAP Regs and in all the circumstances of this case, the considerations in favour of approval of the extension application (that ALH has actively and conscientiously pursued implementation of the development approval and that the two-year period for substantial commencement originally imposed was wholly inadequate) outweigh the considerations against approval of the extension application (that the planning framework has changed substantially since the development approval was granted and that the development of the Dan Murphy's liquor outlet cannot now lawfully be approved on the site under TPS 6).
The correct and preferable decision at the time of the decision upon the review is to amend the development approval so as to extend the period within which the approved development must be substantially commenced to 16 July 2020, which is the date two years from the date of this decision.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.Condition 33 of the development approval granted by the Metro Central Joint Development Assessment Panel on 17 April 2015 is amended by deleting the words 'planning approval' and substituting the words 'the publication by the State Administrative Tribunal of its decision in proceeding DR 16 of 2018, that is by 16 July 2020'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE
16 JULY 2018