ARISE ROCKINGHAM PTY LTD and PRESIDING MEMBER OF METRO SOUTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL
[2019] WASAT 64
•16 AUGUST 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT (DEVELOPMENT ASSESSMENT PANELS) REGULATIONS 2011 (WA)
CITATION: ARISE ROCKINGHAM PTY LTD and PRESIDING MEMBER OF METRO SOUTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2019] WASAT 64
MEMBER: MS L EDDY, SENIOR MEMBER
MS R MOORE, MEMBER
HEARD: 16 APRIL 2019
DELIVERED : 16 AUGUST 2019
FILE NO/S: DR 314 of 2018
BETWEEN: ARISE ROCKINGHAM PTY LTD
Applicant
AND
PRESIDING MEMBER OF METRO SOUTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Town Planning - Development application - City of Rockingham Local Planning Policy No 3.2.12 - Commercial development - Designation of site as prominent corner site and gateway location under local planning policy - Whether proposed development consistent with requirements of local planning policy - Whether reasons to depart from policy in the circumstances - Turns on own facts
Legislation:
City of Rockingham Local Planning Scheme No. 2, cl 1.6, cl 4.3.3, cl 4.3A.1, cl 5.3.1, cl 5.3.3, cl 6.1.3, Sch 1
Metropolitan Region Scheme
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 18, reg 18(3)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), r 10(4), cl 67, cl 68(2), cl 74(1), c 74(2), Sch 2
Planning and Development Act 2005 (WA), s 257B
Result:
Decision of respondent to refuse to approve proposed development affirmed
Application otherwise dismissed
Summary of Tribunal's decision:
The applicant sought approval to create a commercial development, including a health studio, restaurant, showrooms and convenience store selling fuel. The proposed development was largely single storey, with a second storey element including offices and a void above the health studio, as well as an architectural element that contained signage advertising the name of the complex. The respondent refused to approve the proposed development on the basis that it did not comply with requirements of the City of Rockingham Local Planning Policy 3.2.12 - Development Policy Plan: Southern Gateway and Rockingham Station Sectors, one of the proposed vehicular accesses would compromise vehicle safety and two of the proposed signs intended to accompany the proposed development did not comply with the City of Rockingham's signs policy.
The Tribunal determined that the proposed development did not comply with a number of requirements that applied under the local planning policy based on the site's designation as a prominent corner location and a gateway location under the policy. The Tribunal determined that the departures were significant and that there was no reason to depart from the policy in all of the circumstances. The Tribunal placed weight on the local planning policy because it was relatively recent, based on sound town planning principles and involved strategic planning aimed at achieving urban renewal for the locality. The Tribunal determined that the inconsistencies between the proposed development and the local planning policy were such that the proposed development would tend to stymie or interfere with the strategic aims of the local planning policy.
The Tribunal was satisfied that the vehicular access in question was not unreasonable. The Tribunal was satisfied that the proposed signage was consistent with the objectives of the City of Rockingham's signs policy.
Having regard to the weight the Tribunal attributed to the inconsistencies between the proposed development and the strategic aims of the relevant local planning policy, the Tribunal determined that the correct and preferable decision was to affirm the respondent's decision to refuse to approve the proposed development.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P McQueen & Mr A McGlue |
| Respondent | : | Ms C Ide & Mr B Loftus |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities and Others [2013] FCAFC 111; (2013) 215 FCR 301
Coastal Midwest Transport and City of Canning [2012] WASAT 202
Conservation Council of Western Australia (Inc) & Ors v The Hon Stephen Dawson MLCA & Anor [2018] WASC 34
Opal Vale Pty Ltd and Shire of Toodyay [2013] WASAT 88
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In July 2018 an application for development approval under the City of Rockingham Local Planning Scheme No. 2 (LPS 2 or Scheme) and the Metropolitan Region Scheme (MRS) was made on behalf of Arise Rockingham Pty Ltd (applicant) to use Lot 301 Council Avenue, Rockingham (site) for the purposes of a mixed commercial development including a health studio, restaurant, showrooms and convenience store selling fuel (original proposal). The original proposal was referred to the Metropolitan South-West Joint Development Assessment Panel (MSWJDAP) for determination pursuant to reg 6 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations) on the election of the applicant. After initially deferring the application, the MSWJDAP resolved to refuse the original proposal on 28 November 2018. On 29 November 2019, the applicant lodged an application for review of the MSWJDAP's decision in the Tribunal pursuant to reg 18 of the DAP regulations. Pursuant to reg 18(3) of the DAP Regulations the Presiding Member of the MSWJDAP (respondent) is the decisionmaker for the purposes of the Tribunal proceedings.
During the course of proceedings in the Tribunal, the applicant submitted amended plans which, amongst other things, increased the height of the proposed building at the corner of Council Avenue and Read Street from 12.5 metres to 13.1 metres by the inclusion of a architectural element (amended proposal). Following an invitation to reconsider its decision from the Tribunal, the MSWJDAP considered the amended proposal on 26 February 2019 and resolved to refuse it. In essence, the reasons for refusal were that the proposed building was not three storeys in height and did not provide for significant elements that acknowledge the site's designation as a Gateway Location in the City of Rockingham's Local Planning Policy No. 3.2.12 - Development Policy Plan: Southern Gateway and Rockingham Station Sectors (LPP 3.2.12), one of the proposed vehicular accesses would compromise vehicle safety and two of the proposed signs did not comply with the requirements of the Shire of Rockingham's Local Planning Policy 3.3.1 Control of Advertisements (LPP 3.3.1).
In March 2019, the applicant was granted leave to further amend the plans to provide for eight additional car parking bays. The further amended plans, dated 5 March 2019 (contained at tab 2 of Exhibit 2) are the plans the subject of this determination (proposed development).
Site and locality
The following facts are taken from the parties' Statements of Issues, Facts and Contentions and are not in dispute.
The site is 12,373m2 in area and is bounded by Read Street, Council Avenue, Sepia Court, Lot 300 and a public reserve that contains an unnamed track or laneway. The site is currently vacant other than a Western Power substation structure near the north-eastern corner of the site. The site has been vacant for a significant period of time.
Council Avenue, abutting and to the north of the site, is a four lane (two lanes each direction) road separated by a median strip, plus turning lanes. It is an integrator B arterial local road and has a speed limit of 60 kilometres per hour. There currently exists a bus stop on Council Avenue adjacent to the site located approximately halfway along the boundary of the site that fronts Council Avenue.
Sepia Court abutting and to the east of the site, is a two lane (one lane in each direction) local access road. It has a speed limit of 50 kilometres per hour. The laneway, abutting and to the south of the site, is a relatively narrow unpaved access route. Read Street, abutting to the west of the site is a four lane road (two lanes each direction) separated by a median strip. It is an Other Regional Road and has a speed limit of 70 kilometres per hour.
The land to the north, on the other side of Council Avenue to the site, contains the Rockingham Shopping Centre with associated car parking accessed off Council Avenue, Chalgrove Avenue, Central Promenade and Contest Parade. The land to the east, on the other side of Sepia Court to the site, contains a childcare centre and a number of single storey and two storey grouped dwellings. The rear of one of the grouped dwellings abuts part of the site. The land to the south is a reserve for public recreation invested in the City of Rockingham. It is a narrow reserve with an area of approximately 5,000m2, with a width of approximately 6.5 metres. It is on that reserve that the laneway is located. To the south of the reserve are a number of two storey grouped dwellings.
The Tribunal, together with the parties, conducted a site view commencing at 2.00 pm on 16 April 2019. This view was conducted on foot and included the site and some surrounding locations including part of Council Avenue, part of Read Street, Sepia Court and the laneway to the rear of the site.
Applicant's development proposal
The proposed development is a mixed commercial development with ground floor parking in the following configuration:
(a)four showrooms, one health studio, one café and alfresco area and one convenience store (selling fuel) with six fuel bowsers (ground level);
(b)three offices (level one);
(c)one playground (ground level);
(d)22 bike bays and end of trip facilities;
(e)111 car bays; and
(f)associated signage.
Access to the site is proposed to be provided by three crossovers. One from Sepia Court, one from Read Street and one from Council Avenue.
The second storey of the proposed development is made up of the three offices on level one (as labelled on the plans) totalling 260m2: see Exhibit 2, at page 8. The health studio has a double height void facing the corner of Council Avenue and Read Street. On the corner of the building is a proposed feature element which is intended to include signage of the development's name: Rockingham Central. The part of the proposed development that faces the corner of Read Street and Council Avenue is 10.3 metres in height between the ground and the top of the parapet, and 13.1 metres between the ground and the top of the feature element: ts 12 and 35, 16 April 2019.
Planning framework
The parties are in agreement in relation to the relevant planning framework. The following is largely reproduced from the respondent's Statement of Issues, Facts and Contentions and is agreed by the applicant.
Clause 67 of Sch 2 of the Planning and Development (LocalPlanning Schemes) Regulations 2015 (WA) (LPS Regulations) provides a list of matters that, to the extent relevant, the decision maker must have due regard to when determining a development application. Relevant to this application, cl 67 of Sch 2 of the LPS Regulations requires the Tribunal to have due regard to:
…
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
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(g)any local planning policy for the Scheme area;
(h)any structure plan, activity centre plan or local development plan that relates to the development;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(u)the availability and adequacy for the development of the following -
(i)public transport services;
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(w)the history of the site where the development is to be located;
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(y)any submissions received on the application;
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(zb)any other planning consideration the local government considers appropriate.
In addition, cl 4.3.3 of LPS 2 relevantly provides:
Without limiting Clause 67 of the deemed provisions, in considering an application for development approval of development within the Primary Centre, the Local Government is to have due regard to -
a)the objectives of the Primary Centre;
b)the provisions of the Centre Plan;
c)the objectives of the Zone in which the development is proposed;
d)in the case of the Primary Centre City Centre Zone the provisions of the Development Policy Plan (City Centre Sector and Southern Gateway and Rockingham Station Sectors) and any other Policy adopted under Clause 4(3) of the deemed provisions which applies to the Primary Centre City Centre Zone[.]
Pursuant to cl 6.1.3 of LPS 2, where the respondent's Design Review Panel has given a recommendation in relation to a development application, regard is required to be given to that recommendation in making a decision in relation to the application. While the original development was the subject of a recommendation by the respondent's Design Review Panel, the proposed development now the subject of review has not been considered by that body.
The site is zoned 'Central City Area' under the MRS and 'Primary Centre City Centre' under LPS 2. The objectives for the Primary Centre City Centre Zone are contained in cl 4.3A.1 of LPS 2, which relevantly includes:
The objectives of the Primary Centre City Centre Zone are -
a)to provide an identifiable 'City Centre' which provides for major CBD functions in a predominantly 'Main Street' development configuration;
b)to contribute to the development of integrated retail, office, commercial, residential, civic and community facilities generally in accordance with the requirements of the Development Policy Plan for the City Centre Sector and the Local Government Avenue Sub-Precinct forming part of the Southern Gateway and Rockingham Station Sectors;
c)to achieve high intensity land use and built form outcomes, including a range of medium to high density housing, within a walkable catchment of the central public transit system;
…
(f)to provide contiguous, activated street front development;
g)to promote active day and night time retail and social environments[.]
The proposed uses, convenience store, health studio, office, restaurant and showroom, are all 'D' uses, which means that the use is not permitted unless the local government has exercised its discretion by granting development approval.
Clause 5.3.1 of LPS 2 requires development approval for the erection of advertisements. The decision-maker is to have regard to the objectives of the Scheme with particular reference to the character and amenity of the site's locality, including landscape significance, traffic safety and nearby amenity in determining an application in relation to advertisement: cl 5.3.3 of LPS 2.
The City of Rockingham adopted the Rockingham Strategic Metropolitan Centre: Centre Plan Stage 2 (Centre Plan) and it was endorsed by the Western Australian Planning Commission (WAPC) in 2009. Figure 10 of the Centre Plan depicts that the site is located within the area described as Southern Gateway Sector 10. In accordance with the requirements of the Centre Plan, a sector development plan was endorsed by the respondent in 2016. This sector development plan is LPP 3.2.12.
Section 5.1 of LPP 3.2.12 provides information about the Indicative Development Plan for the Southern Gateway and Rockingham Station Sector (Indicative Development Plan or IDP). The Indicative Development Plan is depicted in Figure 5.1. Relevantly, s 5.1 of LPP 3.2.12 states:
It has been assumed that those parts of the Sector that have already been developed for strata titled group housing and aged care accommodation between Read Street and Kitson Street are unlikely to be redeveloped within the timeframe covered by this Policy. There is scope for further mixed use development along the northern Council Avenue edge between Read Street and Hefron Street. Additional infill development on vacant land would help to better integrate and connect the existing isolated pocket of offices and community facilities, including the youth centre, Anglican Church and child care centre.
…
A range of development options are envisaged within a high quality townscape setting. New buildings would be a minimum of 2 storeys, with built form similar to that which is progressively being implemented in the Rockingham City Centre and in comparable situations at other centres such as Cockburn Central, Midland and Joondalup.
Figure 5.1 of LPP 3.2.12 has an annotation applicable to the site, as well as other land fronting Council Avenue, which provides:
Develop vacant and under-utilised land along Council Avenue with mixed commercial and community uses.
Figure 5.4 of LPP 3.2.12 provides for building heights in the Southern Gateway and Rockingham Station Sectors. The site is coloured in orange, which the key indicates means '19.0m / 5 storeys'. An asterix below states 'Subject to overshadowing provisions in DPP'. The site has a blue star depicted on it in Figure 5.4, which the key indicates means it is a prominent corner site. Underneath the words 'Prominent Corner Sites' in the key are the words 'Minimum 3 storey building height'. The site and land on the other three corners of the intersection of Council Avenue and Read Street are encircled with a dotted blue line, which the key indicates means 'Gateway Location-Built form and landscaping': Figure 5.4 of the DPP. The term 'height' is defined in Appendix A2 of the DPP where it states 'height':
Means the measurement taken from the natural ground level immediately in front of the centre of the face of the building to a level at the top of the ridge, parapet, or flat roof, whichever is the highest, but does not include any lift plant, water tower or similar utility or service, not exceeding 3 metres in height, or any architectural feature or decoration (other than a freestanding sign) not used for any form of accommodation, which may be approved by the Council.
Section 5.4 of LPP 3.2.12 provides further information about building height and prominent sites:
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A minimum building height of 3 storeys will apply to the nominated Prominent Corner Sites (refer to Section 8.1).
Figure 5.5 of LPP 3.2.12 is labelled 'Frontage Types'. The site is coloured green on the Read Street boundary and yellow on the Council Avenue boundary. The key states that the green means 'TYPE 4 Moderate Activation, 2 3.5m setback' and yellow means 'TYPE 3 Moderate Activation, nil - 2m setback'. Section 5.5 provides:
The Framework Plan and Southern Gateway Sector IDP have been formulated in accordance with consolidated urban design principles that require buildings to frame, address and activate an interconnected, hierarchical street network.
Figure 5.5 illustrates an orderly arrangement of 'Frontage Types' based on the common principle that building frontages to all streets and public spaces should be activated.
Type 3 - Moderate Level of Activation, 02 Metre Setback
A moderate level of frontage activation with residential apartments and associated lobbies at ground level and a 2 to 3 storey façade positioned behind a variable 0-2 metre, green landscaped setback. The ground level of residential units would address the street with a façade that is transparent over at least 30% of its area.
Type 4 - Moderate Level of Activation, 2-3.5 Metre 'green' Setback
A moderate level of frontage activation with residential units at ground level and a 1 to 3 storey façade positioned behind a 2-3.5 metre green landscaped setback. Ground level residential units would address the street with a façade that is transparent over at least 30% of its area.
The Southern Gateway Sector is divided into four precincts. Figure 3.1 of LPP 3.2.12 shows the site is located within the Hefron Precinct. Figure 3.1 of LPP 3.2.12 has the following annotation in respect of the site and other land fronting Council Avenue:
Existing mixed use frontage along Council Avenue has potential for further urban scaled infill development to better frame and activate a major entrance to the City Centre[.]
Part 6 of LPP 3.2.12 contains the various precinct policies. In Figure 6.1, the site is depicted with an annotation that 'mixed use development on vacant land to properly frame and activate street frontages at entrance to major gateway location'. Section 6.1.1 describes the desired future character of the Hefron Precinct. It is acknowledged in this section that the existing single and two storey group housing within the precinct is unlikely to change. The section goes on to provide:
The greatest opportunity for change exists in the band of property along the southern side of Council Avenue, where further mixed use development infill would be appropriate given its proximity to the City Centre and its location at an important gateway to the Centre. In this regard, Supplementary Design Guidelines (Section 6.1.5) have been prepared to guide development in the Council Avenue sub-precinct and will be administered under the Primary Centre City Centre zone under Town Planning Scheme No.2[.]
Section 6.1.3 of LPP 3.2.12 specifies that the preferred uses in the Hefron Precinct are multiple dwellings/residential; civil and community; office and commercial and professional consulting rooms. It also provides 'other permissible uses listed under the Scheme are not preferred'.
Section 6.1.4 describes the required elements for development within the Hefron Precinct, and relevantly includes:
(a)The Precinct is to be developed as a quality, medium to high density residential area, framed along its Council Avenue interface with the City Centre by a band of mixed use streetfront buildings. All forms of development and redevelopment should address the street in a manner consistent with a contemporary inner-city townscape discipline. It is essential that all buildings along the Council Avenue, Read Street and Hefron Street frontages (within the Council Avenue sub-precinct) maintain at least a commercial ground floor function, with potential for residential or commercial above and are consistent with the requirements of Section 6.1.5 - Council Avenue Sub-Precinct Supplementary Design Guidelines.
(b)Buildings are to be located, configured and activated to frame and address street frontages, laneways and other public spaces in a way that is generally consistent with the Precinct Concept Plan and relevant 'Frontage Types' as listed in Section 5.
(c)Consistent with Figure 5.3 'Density', in Section 5.3, residential development is to accommodate a balanced mix of dwelling sizes at preferred densities ranging from 60 to 80 dwellings per hectare (with a minimum density of 40 dwellings per hectare) and 80 to 100 dwellings per hectare (with a minimum density of 60 dwellings per hectare).
(d)Consistent with Figure 5.4 'Building Height and Prominent Sites' in Section 5.4, and with the exception of any requirements for Corner Sites and nominated Prominent Corner Sites, buildings are to be constructed within a 12.5 metre height limit along street frontages. In those areas with a permitted maximum height of 19.0 metres, any height between 12.5 metres and 19.0 metres is to be setback a minimum of 3.5 metres. The scale and massing of buildings shall be designed to minimise any overshadowing of adjoining properties and public spaces. For corner sites and nominated Prominent Corner Sites, building massing, building heights and variations to front setbacks will be as referred to in Supplementary Policy 8.1 and as specified in Figure 5.4.
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(g)Car parking is not permitted between the road reserve boundary and building frontages.
(h)Off-street car parking will generally be located behind, under or over ground floor, streetfront buildings
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(j)The frontage of any building is to incorporate and maintain the required area of transparent facade with suitably glazed shopfront windows and doors, consistent with the applicable 'Frontage Types' set down in Section 5.5[.]
The site is also located within the Council Avenue Sub-Precinct and is subject to supplementary guidelines contained in s 6.1.5 of LPP 3.2.12. The objectives for the sub-precinct are at s 6.1.5.1:
•To provide for high quality commercial, mixed use and residential buildings;
•To achieve high intensity land use and built form outcomes consistent with major 'CBD' functions;
•To provide contiguous, activated streetfront developments;
•To promote active day and night time retail and social environments; and
•To encourage vibrant and diverse uses which promote the subprecinct as a destination[.]
The preferred uses in the sub-precinct are retail, office and commercial, showrooms, entertainment and leisure and multiple dwellings/residential (1st floor and above): s 6.1.5.2 of LPP 3.2.12.
The required elements for development in the Council Avenue SubPrecinct include (s 6.1.5.3):
•Prominent Corner Sites to reinforce the townscape structure, aid place-making and add legibility to the access and movement network;
•Contiguous streetfront building with active ground level frontages to Hefron Street, Council Avenue and Read Street;
•Car parking located above ground floor buildings is to be screened from view in the street or affected public space by suitable architectural means to the satisfaction of the City of Rockingham;
•Customer access is to be from the streetfront entry;
•A high level of frontage activation shopfronts (consistent with busy retail tenancies, cafes and restaurants, shopfront offices and lobbies); and
•Buildings are to provide for safe access and egress from either Council Ave or Read Street.
Built Form
•Development up to a maximum height of 5 storeys;
•The frontage of any building is to incorporate and maintain the required area of transparent façade with suitably glazed shopfronts, windows and doors;
•A contiguous, colonnaded walkway or similar pathway is to be integrated with building development to provide sheltered pedestrian connections between adjoining tenancies and activity generators;
•Activate the ground floor level of buildings with predominantly glazed building entry lobbies and/or high visitation commercial and retail tenancies; and
•Prominent Corner Sites are at Read Street, Council Avenue and Hefron Street are to be developed as per Section 8.1 Prominent Sites[.]
Part 8 of LPP 3.2.12 contains supplementary policies, including a 'Corner and Prominent Sites Policy'. The objective of this policy is provided at s 8.1.2 as follows:
The objective of the Prominent Sites Policy is to facilitate the development of visually distinctive buildings, sculptural elements and landscapes in locations that will provide navigational reference points and contribute to orderly street block formation, street activation, placemaking and an enduring townscape identity.
In relation to 'Gateway Locations', s 8.1.3 provides:
For the purposes of this Policy, Gateway Locations will generally be located where there is a change in townscape character and intensity at a spatial junction and may be framed by relevant built form and/or landscaping.
Gateways signal arrival and may incorporate Landmark and Prominent Corner buildings (where nominated), signage, trees, memorials, parks, fountains, water features, clock towers or sculptural artworks.
The treatment of landscape works at the Patterson Road/Flinders Lane entry to the Rockingham Waterfront Village provides a relevant example of effective gateway landscaping at the entrance to an urban activity centre.
In relation to 'Prominent Corner Sites', s 8.1.4 provides:
For the purposes of this Policy, prominent corner sites will generally be located where at least one frontage is highly visible from the public domain. In 'Main Street' centres, such sites often attract major businesses but they have also been favoured for theatres, libraries, galleries and museums - often accompanied by fine grain street retail tenancies such as cafes and convenience stores.
In the Southern Gateway Sector, uses suitable for prominent corner sites include a wide range of mixed uses (including residential) that benefit from and contribute to a high level of visual exposure and street activation.
The planning and design principles are contained in s 8.1.5, which provides:
Typically, buildings on prominent corner sites will be taller than those along normal street frontages, with height increasing towards the street corner where tower elements, elevated roof structures and signage can be integrated.
In general, built form and related public spaces on corner sites and nominated gateway locations, prominent corner sites should be designed to achieve distinctive, high quality architecture that befits the strategic context of the location.
Common principles to be followed in planning sites and designing buildings, structures and public spaces for such locations include:
•Locate prominent corner sites to reinforce the townscape structure, aid place-making and add legibility to the access and movement network;
•Incorporate a balanced mix of such public and private sites to facilitate a mix of distinctive civic, commercial, mixed use and residential buildings in prominent locations;
•Frame and terminate vistas with suitably scaled buildings, towers and landscape elements;
•Ensure that the massing, articulation, detailing and finishes of buildings contribute to a lively but well balanced streetscape at intersecting street frontages. Position corner buildings close to the intersection to frame and anchor the corner. At the junction of street elevations, the City will exercise its discretion in considering proposals to relax front setbacks for corner elements;
•Add additional height to corner buildings through the integration of vertical elements such as raised parapets, spires, roof sections and similar structures. The City will exercise its discretion in considering proposals to relax maximum height limits.
•Add at least one extra storey, or as indicated in Precinct Policies, plus any tower or similar elements above required Precinct minimum building heights on nominated prominent corner sites;
•Activate the ground floor level of buildings with predominantly glazed building entry lobbies and/or high visitation commercial and retail tenancies;
•Integrate public art and signage into the design of buildings and related public spaces at gateway locations and at prominent corner sites.
The City of Rockingham also has adopted LPP 3.3.1. The policy objectives are stated at cl 3 as follows:
(a)Ensure that advertisements are appropriate for their location;
(b)Minimise the proliferation of advertisements;
(c)Ensure that advertisements do not adversely impact on traffic circulation and management, or pedestrian safety;
(d)Protect the amenity of residential areas, townscape areas and areas of environmental significance;
(e)Protect the significance of heritage places or buildings;
(f)Ensure that advertisements are constructed with quality materials;
(g)Encourage advertisements located within the Rural or Special Rural Zone or in areas of environmental significance to be sympathetic with the natural environment in terms of materials and colours;
(h)Ensure advertisements are generally erected on land where the advertised business, sale of goods or service is being carried out; and
(i)Ensure that advertisements are maintained to a high standard.
Clause 4.3.1 of LPP 3.3.1 provides for 'Signs on Buildings'. This includes any advertisement that is attached or otherwise displayed on a building. The assessment criteria requires the advertiser to demonstrate compliance with the objectives of LPP 3.3.1.
In relation to pylon signs, cl 4.3.2 of LPP 3.3.1 relevantly provides:
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(d)have a height exceeding 6.0m, unless it can be demonstrated to the Council that a greater height is warranted and it complies with the objectives of this Planning Policy. In any event, a Pylon Sign shall not exceed 9.0m in height;
(e)have any part of the sign less than 2.7m from the ground level, unless the sign is designed such that the underside of the face area is located at ground level;
(f)have a face area exceeding more than 3.5m width or height;
(g)have a face area of more than 4m2 on each side (single tenancy) or 13m2 on each side (multiple tenancy)[.]
Issues
Although the parties framed the issues slightly differently, by the time the hearing commenced there were in essence three main issues in dispute between the parties. Firstly, whether the proposed building is of an appropriate height, scale and number of storeys given its location at the corner of Council Avenue and Read Street and having regard to the requirements of LPP 3.2.12 for gateway locations and prominent corner sites. Second, whether the proposed crossover to Council Avenue is safe and appropriate having regard to its proximity to the Council Avenue/Read Street intersection and to Sepia Court as well as the location of the existing bus stop. Third, whether the proposed pylon sign and roof sign for the convenience store are appropriate and appropriate for their location in terms of height and scale.
The Tribunal understands that it is required to determine whether the correct and preferable decision is to approve (with or without conditions) or to refuse the proposed development having due regard to the relevant matters contained in cl 67 of Sch 2 of the LPS Regulations and to the additional matters identified at cl 4.3.3 of LPS 2 (to the extent that those matters are not already contained in cl 67 of the LPS Regulations). The Tribunal will deal with issues under the following headings:
•Consistency of the proposed development with LPS 2 (and in particular the objectives of the Primary Centre City Centre zone (cl 67(a));
•Consistency of the proposed development with LPP 3.2.12 (cl 67(g), (h), (m), (n), (p) and (w));
•The safety and appropriateness of the Council Avenue crossover (cl 67(s), (t) and (u));
•The appropriateness of the proposed signage in dispute (cl 67(g)); and
•Conclusion.
Consistency of the proposed development with LPS 2
There was no submission made by the respondent, or any evidence led to support any conclusion that the proposed development does not comply with the relevant general and specific objectives of LPS 2 in cl 1.6 of the Scheme. The objectives for the Primary Centre City Centre Zone are at cl 4.3A.1 of LPS 2. In particular, the respondent submits that the proposed development is inconsistent with objectives a) and b).
Neither party led any evidence specific to this issue. It seems that the respondent relied on its assertion that the proposed development is inconsistent with LPP 3.2.12 in order to support its argument that the proposed development is also inconsistent with the objectives of the Primary Centre City Centre Zone. We are not satisfied that this in fact follows. Objective (a) requires provision of an identifiable City Centre which provides for major Central Business District functions in a predominantly 'Main Street' development configuration. There is no reference to the Centre Plan or LPP 3.2.12. There is no indication that this paragraph has been amended since LPS 2 was gazetted, and if that is the case, this paragraph pre-dates both the Centre Plan and LPP 3.2.12.
Objective (b) requires contribution to 'the development of integrated retail, office, commercial, residential, civic and community facilities generally in accordance with the requirements of the Development Policy Plan for the City Centre Sector and the Local Government Avenue Sub-Precinct forming part of the Southern Gateway and Rockingham Station Sectors'. We are not sure what that is a reference to. The defined terms in Sch 1 of the Scheme include 'Development Policy Plan (City Centre Sector)' and 'Development Policy Plan (Southern Gateway and Rockingham Station Sectors)' but neither of these terms is used in objective (b).
As neither party made any submissions on how paragraph (b) of cl 4.3A.1 of LPS 2 should be properly interpreted, we consider that we should not embark on an analysis of this provision at this point in time. On that basis, we do not consider that we can make any finding as to whether or not the proposed development is consistent with this objective. Given our findings below, we consider nothing turns on this issue in any event.
Consistency of the proposed development with LPP 3.2.12
The respondent submits that the proposed development, and in particular the height, scale and number of storeys proposed, is not consistent with LPP 3.2.12. This is because LPP 3.2.12 seeks to ensure that any development on the site has at least three storeys or is at least 12.5 metres in height. There is no dispute that the proposed development has only two storeys at the corner facing the corner of Council Avenue and Read Street, with the remainder of the proposed development being one storey. The respondent submits that the architectural element on that corner of the proposed development is an architectural feature and as such, according to LPP 3.2.12, its height is not included in assessing the proposed development's overall height. The respondent submits that the proposed development is 10.3 metres in height at its highest point, this being measured between the ground and the top of the parapet above the health studio and offices (not the parapet of the architectural element.
In opening, counsel for the respondent explained why the lack of height, scale and storeys in the proposed development is important as follows:
…
Then turning to whether that noncompliance is sufficient enough to - or significant enough to warrant the (indistinct) we say yes and to set up these propositions in general form, which, of course, I will expand upon after the evidence and in closing. But we say the purpose of the requirement for this prominent corner site in a gateway location is to point - provide a point of distinction between the subject site and what might be the balance of the locality be in its more developed form. We're at the early stages of this new form of this new planning policy intended to apply for quite some time going forward. We need to get this corner site right, we need to get it of a sufficient scale, for it to be distinctive in a way it's intended to be going forward in - in years forward - 20 years, 20 plus years, as development proceeds as it eventually will occur along Council Ave and other parts of the city centre primary centre city centre zoning. They can be achieved at heights of a minimum of two storeys.
We need this corner site to be of some distinctiveness and height and scale and we say that's not achieved by that. To the extent the height is achieved by way of architectural features they are also a form of signage as opposed to a built structure with scale behind it. The architectural feature is of limited depth and, effectively, signage. There's a real fundamental question whether the placemaking in the townscape identity is achieved by the proposed development as well and we also say that, you know, considerable regard ought to be given to what is a relatively very recently approved policy and reflects the - one concept is for the locality as worked through by the City of Rockingham.
(ts 24-25, 16 April 2019)
The applicant submits that the proposed building meets the height requirement of LPP 3.2.12 because it is 13.1 metres high at its highest point (to the top of the parapet of the architectural element). The architectural element is not an architectural feature within the meaning of LPP 3.2.12, but rather is part of the wall and therefore it is the top of that element that is the relevant point from which to measure. Even if that is not accepted, the applicant submits that although LPP 3.2.12 provides for a minimum number of storeys on prominent or corner sites, and while it does provide a maximum height, it does not provide for a minimum height. In addition, the applicant submits that when reading the relevant provisions of LPP 3.2.12 together, one should understand that the way finding and legibility aspects, as well as the preferred uses, are critical and one should understand what the policy seeks to achieve in terms of building height having regard to the natural building form of the preferred uses: ts 33-35, 16 April 2019. Further, when considering the appropriate height of the proposed development, one should have regard to the expected architectural form of buildings that might be expected to house the preferred uses listed for the precinct in LPP 3.2.12. As the proposed development does involve uses that are preferred, and in particular a showroom type commercial use, the ultimate form of the proposed development is appropriate in that context.
The Tribunal heard evidence in relation to these issues from two architects, Mr Malcolm Mackay and Mr Samuel Thomas Klopper. The Tribunal also heard from two town planners, Mr Peter Simpson, a consultant town planner and Mr Gregory James Delahunty, a planner employed by the City of Rockingham.
In his written evidence, Mr Mackay noted that while the site is nominated in LPP 3.2.12 as a Gateway Location, in fact it is poorly situated to effectively carry out this task. According to Mr Mackay (Exhibit 10, paras 5.145.16):
The establishment of a Gateway Location needs to take into account the direction of travel to whatever the Gateway Location is announcing. In the context of the subject site, the directions of arrival are northwards along Read Street and eastwards along Cygnus Street.
Whilst the Read Street/Council Avenue corner of the subject site is prominent in the field of view of visitors arriving from Cygnus Street (the lesser of the two arrival routes), it is less prominent for visitors arriving from the south along Read Street because they are effectively coming up behind the primary elevation to Council Avenue.
The consequence of this observation is that whilst the subject site is nominated as a 'prominent corner' in Fig 5.4 in the DPP, it is not, and should not be, the most prominent corner because it faces the wrong way for most arrivals to the place and it is not within the City Centre precinct, on the Southern Gateway precinct.
On the site view, it was apparent that there was considerable force in Mr Mackay's comments. However, it was also apparent that the site has the potential to be highly visible to traffic travelling along Read Street in the opposite direction to that commented on by Mr Mackay. Having said that, a vehicle travelling in this direction is already at, or has already gone past, the City Centre precinct by the time the site is visible, and as such its location from this direction can only mark the end of the precinct. The same might be said for vehicles travelling down Council Avenue.
According to Mr Mackay, if the intent is to distinguish a corner site through building height, then it is the height that is important rather than the number of storeys within the structure (Exhibit 10, para 5.42). Mr Mackay is of the view that the proposed development is of a height that is consistent with three stories. He also considers that the distinctiveness, recognisability and relevance of the proposed development will lead to people identifying the site as a map point in a mind map and thereby do the work of being a gateway to the City Centre. In Mr Mackay's opinion, the use of a façade to create height is an architectural device that has been used for hundreds of years, and is a perfectly acceptable way of achieving corner prominence.
Mr Klopper does not agree that the proposed development will carry out the wayfinding, activation and 'Main Street' objectives of LPP 3.2.12 for a prominent corner site. In his view this is not just because of a lack of storeys, it is a matter of considering a number of elements together. In Mr Klopper's view, the use of signage (which term includes the architectural element on the corner of the proposed development) is not wayfinding. Rather, wayfinding should use subtle nudges and indications that well designed spaces confer without signage. It is those aspects of the built environment and landscape that emphasise the important connections and paths and take emphasis away from those that are less important. This allows movement to and within a place to occur naturally intuitively and without conscious input (Exhibit 6, para 20). Mr Klopper agrees with Mr Mackay that a development needs to be distinctive, recognisable and relevant to achieve the legibility aims of the policy: ts 176, 17 April 2019. However, he does not agree that the proposed development achieves those things because it is not distinctive. If it were located on another piece of land in the same street, it would not stand out in his view: ts 177, 17 April 2019.
The height achieved at the corner of the proposed development is, in Mr Klopper's view, tokenistic with only a very small scale second storey and the introduction of a void over the gym and the use of a façade which can be seen to be two dimensional from the side rather than a true three dimensional building with bulk and scale. Although the proposed development will read as a two storey building from the Council Avenue frontage, the balance of the development reads as single storey. Mr Klopper considers that the use of double height glass in the void above the health studio will create an uncontrolled heat load on a small commercial operation with little or no amenity improvement. In addition, Mr Klopper considers that the introduction of a service station on Council Avenue is inconsistent with the 'Main Street' planning environment sought to be achieved in the Centre Plan and LPP 3.2.12. In Mr Klopper's opinion, the proposed development makes no real attempt to emphasis the corner, it does not stand out from the ordinary at all: ts 160161, 17 April 2019.
To the extent that Mr Klopper has concerns about the failure of the proposed development to achieve the 'Main Street' aspirations of the Centre Plan and LPP 3.2.12 and having been on a site view, the Tribunal is not persuaded that there is any realistic likelihood of achieving this type of outcome on Council Avenue or Read Street because of the very wide road reserves, busy roads and very real physical separation of the two sides of those roads.
In relation to the built form that might be expected for a showroom and 'retail-type development' (ts 180, 17 April 2019), Mr Klopper accepted that the proposed development is consistent with the built form that one would expect for such a use (ts 181-182, 17 April 2019).
Overall, the architects gave extensive evidence, both in writing and orally. To summarise, Mr Mackay remains of the view that the proposed development has an appropriate height and scale to achieve the objectives for the precinct and for its designation as a gateway location and a prominent corner site, and it is entirely consistent with the built form one might expect to occur with the uses proposed, which are preferred uses contemplated by LPP 3.2.12. Mr Klopper, on the other hand, remains of the view that the proposed development is lacking in height, bulk and scale, particularly in the corner element facing the Read Street/Council Avenue intersection and lacks any sufficient distinctiveness to carry out the function of a gateway location or a prominent corner site. In considering this, in Mr Klopper's view, it is necessary to view the proposed development through the prism of the future streetscape that one can expect will develop in the locality, in accordance with the strategic planning set by the Centre Plan and LPP 3.2.12.
The town planners also gave evidence on these issues. Mr Simpson, similarly to Mr Mackay, believes that the proposed development complies with the objectives of LPP 3.2.12 in relation to the gateway location and prominent corner site requirements. In assessing the proposed development, Mr Simpson compares it to the existing streetscape and to the likely future streetscape. In relation to the future streetscape, Mr Simpson considers that the areas to the south of the site are unlikely to change in the near future, and will remain largely single and two storey dwellings. He also considers that the properties to the east along Council Avenue and the Rockingham Shopping Centre on the opposite side of Council Avenue are unlikely to change in the foreseeable future. In support of this conclusion, Mr Simpson points to the existing built form of these areas as well as to the lack of any identified change for the Rockingham Shopping Centre area in the relevant policy documents (Exhibit 13, para 10.15). In this context, Mr Simpson is of the view that the proposed development meets the frontage provisions of LPP 3.2.12, and will provide a built form reference point by being visually distinctive from the existing and likely future built form in the locality.
Mr Delahunty, while noting that the proposed development does not meet the three storey minimum, says LPP 3.2.12 requires, agrees that the proposed development will be taller than other existing buildings in the immediate area. Mr Delahunty conceded in crossexamination that the proposed development reads as a two storey building. However, he considers that the proposed development must be assessed against the likely future streetscape, which according to the aims of LPP 3.2.12 are to generally achieve a two to three storey building height in the precinct. Mr Delahunty considers that the use of the architectural element to achieve height means that the proposed development does not have sufficient scale or bulk to achieve its designation as a prominent corner site and a gateway location. Mr Delahunty points to the fact that LPP 3.2.12 identifies that the 'band of property along the southern side of Council Avenue' (cl 6.1.2 of LPP 3.2.12) provides 'the greatest opportunity for change' as a basis for ensuring that the site, in particular, conforms with the strategic intent found in LPP 3.2.12. In his view, to approve a development that does not achieve the strategic intent for a prominent corner site and gateway location at the site, such as the proposed development, will result in a significant erosion of the ability to deliver the vision of the Centre Plan and LPP 3.2.12 as a whole (Exhibit 3, para 5.2.35).
In order to understand the evidence in the context of the planning framework in this case, it is necessary to address the applicant's submissions to the effect that LPP 3.2.12 does not impose any minimum height and that the appropriate height as contemplated by LPP 3.2.12 must be understood having regard to the preferred uses for the relevant precinct and the expected architectural form, particularly in relation to height, that is to be expected with such uses.
The application of LPP 3.2.12 to the proposed development has some nuances in this case because the site is located within the Hefron Precinct of the Southern Gateway, and is also within the Council Avenue Sub-Precinct. In addition, this particular site is designated as both a gateway site and a prominent corner site. One must therefore apply various layers of policy to any development proposed for the site.
At the broadest scale, the Southern Gateway sector is envisaged as one having a range of development within a high quality townscape setting with a minimum of two storeys. There are areas of proposed increased residential density, and relevantly to the site, for proposed mixed commercial and community uses.
Part 5.2 of LPP 3.2.12 deals with proposed residential and mixed use development typologies within the Southern Gateway and Rockingham Station sectors, and identifies areas for increased residential density as well as contemplated building heights and frontages. Although not relevant to the proposed development, as it is not a mixed use proposal, the site is designated as having a preferred residential density of 80100 dwellings per hectare. As indicated above, it is in an area designated as having a 19.0m / 5 storey maximum building height (putting aside for the moment the gateway location and prominent corner site requirements). The maximum height of five storeys will be permitted in areas with the higher residential density, such as that which applies to the site.
The Tribunal notes that the applicant makes much of the site's designated frontage requirements as specified in Pt 5.2 of LPP 3.2.12, however, when one reads the frontage designations, it is apparent that the frontage provisions are largely aimed at addressing impacts in relation to residential, and possibly mixed use, developments. The Tribunal did not find the frontage requirements in LPP 3.2.12 of any particular importance to this proposed development, which is of a commercial nature.
As the applicant submits, there is generally no expressly specified minimum building height for buildings in the Southern Gateway sector, although the introductory paragraphs of Pt 5 of LPP 3.2.12 do refer to a minimum two storey building height. It is difficult to read this as a required minimum height in the absence of any supportive text in the relevant prescriptive later parts of LPP 3.2.12. However, cl 5.4 of LPP 3.2.12 specifies a minimum building height of three storeys for nominated prominent corner sites.
None of the experts ultimately contended that the proposed development involved any more than two storeys. The Tribunal is satisfied that the proposed development is largely one storey, with a small component of two storey building (that part of the building that incorporates the offices on level one). On this basis, the proposed development does not comply with the Southern Gateway Sector requirement for three storeys on prominent corner sites.
While the applicant is correct in its submission that LPP 3.2.12 does not impose a minimum height in metres for prominent corner sites, we are not satisfied that this has any relevance in the context where the policy does clearly specify a minimum height for buildings on such sites in terms of storeys. In LPP 3.2.12 height in metres is only used to limit the maximum height of buildings in terms of metres. It is not used at all in relation to the requirements for minimum building heights. We are not persuaded there is any basis to find that the imposition of a minimum height by use of storeys and not in height in metres requires or allows for LPP 3.2.12 to be understood as positively not imposing a minimum height at all so long as building height is measured in metres. Rather, properly understood, LPP 3.2.12 requires a minimum of three storeys in building height and it does not impose any minimum in terms of metres. The minimum requirement of the policy is met by the number of storeys, whatever its height in metres is, subject to any relevant maximum height requirement that is imposed in metres.
It was argued by the applicant that, as a part of the building is 13.1 metres in height, this in some way equates to a building of three storeys. The Tribunal is not persuaded that additional height created by the use of a two-dimensional architectural element means that the building will be read as a three storey building. The proposed development is generally single storey with a small scale second storey and internal void over the gym. In this respect we accept the evidence of Mr Klopper that the proposed development will be read as a two storey building from Council Avenue with the balance of the development being single storey. The architectural element that is 13.1 metres in height is located at only one point, and in only two dimensions, it will not be read as a three dimensional built form. The Tribunal finds that the 13.1 metre building height does not equate in terms of overall height or building bulk and scale, to a three storey building.
In addition, the Tribunal finds that the architectural element of the proposed development is an 'architectural feature or decoration' within the meaning of LPP 3.2.12. We are satisfied, that based on ordinary grammatical principles, the term 'architectural feature', which is used in the definition of 'height' in the appendices to LPP 3.2.12 is explained as part of a compound term 'architectural feature or decoration' which are 'not used for any form of accommodation'. The architectural element in this case is not used for any form of accommodation and as such is an 'architectural feature or decoration'. Mr Mackay's assertions to the contrary did not persuade us otherwise. As such, the architectural element does not count in any calculation of height. If the proposed development was not to be built on a site designated as a prominent corner site or a gateway location, the fact that the architectural element extends to 13.1 metres would not mean that the proposed development exceeded the applicable two storeys or 12.5 metre height maximum for the precinct.
Drilling down to the more specific detail relating to the Hefron Precinct, there is identified a desire for a change in residential density and scale to that existing where possible (cl 6.1.2). The preferred uses for the precinct include civic and community, office and commercial and professional consulting rooms as well as multiple dwellings and residential. As indicated above, the site is designated as an area for mixed use development in Figure 6.2. Having said that, nothing in LPP 3.2.12 expressly requires that the site be developed as mixed use. It is possible, as has been done in the proposed development, to stay within the preferred uses without including any residential type use.
The 'required elements' of the Hefron Precinct are expressed as being 'required' to be incorporated in any development in the precinct: cl 6.1.4 of LPP 3.2.12. The first required element, which has been reproduced above, indicates that the precinct is to be developed as 'a quality, medium to high density residential area'. It is noted that buildings along Council Avenue and Read Street need to maintain at least a commercial ground floor function 'with potential for residential or commercial above'. The respondent did not argue that the proposed development was required to include a residential component, and we think that position is correct, albeit that LPP 3.2.12 read as a whole strongly encourages mixed use development in this locality. We are persuaded that LPP 3.2.12 does contemplate purely commercial and community development on the site. However, what we consider is a strong focus on increased residential density in the sector as a whole and within the Hefron Precinct may perhaps explain some of the context for the height requirements in the sector and precinct.
Required element (d) imposes a maximum height limit in metres to all buildings in the precinct, with the exception of corner sites and nominated prominent corner sites. The buildings on corner sites and nominated prominent corner sites are to have massing, building height and front setbacks in accordance with cl 8.1 and Figure 5.4 of LPP 3.2.12 (cl 6.1.4 of LPP 3.2.12). Clause 8.1 of LPP 3.2.12 specifies that uses suitable for prominent corner sites 'include a wide range of mixed uses (including residential) that benefit from and contribute to a high level of visual exposure and street activation'.
As indicated above, cl 8.1.5 provides the planning and design principles relevant to prominent corner sites. One of the bullet points in cl 8.1.5 of LPP 3.2.12 refers to the need to 'add at least one extra storey, or as indicated in the Precinct Policies, plus any tower or similar elements above required Precinct minimum building heights on nominated corner sites' (cl 8.1.5). It is not entirely clear, on its face, whether this means that the prominent corner site should have an extra storey on top of the height requirement specified in Figure 5.4 or whether this text explains the requirement for a minimum of three storeys for prominent corner sites specified in Figure 5.4. We are persuaded that the correct view, reading LPP 3.2.12 as a whole, is that the reference in cl 8.1.5 is the textual explanation in support of the requirement in Figure 5.4 for a minimum of three storeys on prominent corner sites. We are not satisfied that there is any sufficient basis in LPP 3.2.12 for reading cl 8.1.5 as requiring a minimum of four storeys on a prominent corner site.
Clause 8.1.5 of LPP 3.2.12 refers more generally to the concept of height by reference to the requirement to add additional height to corner buildings with the integration of vertical elements. In addition, more obliquely (at least in relation to height) it requires prominent corner sites to aid place-making, legibility, framing and termination of vistas with suitably scaled buildings, towers and landscape elements.
Clause 8.1.3 of LPP 3.2.12 relevantly provides that 'gateways signal arrival and may incorporate land marks and prominent corner buildings (where nominated)'. The designation of the site as a gateway location on Figure 5.4 is described in the key to include 'built form and landscaping'. This is in contrast to the other gateway locations identified in Figure 5.4 which reference landscaping only. The planning and design principles in cl 8.1.5 of LPP 3.2.12 are expressed to apply to nominated gateway locations as well as prominent corner sites.
As indicated above, we are not satisfied that the proposed development includes three storeys as required as a minimum for a prominent corner site. As a maximum, development on the site could contemplate up to five storeys or 19 metres in height. The proposed development, at one and two storeys at various points, is nowhere near this contemplated maximum. We are not satisfied that the fact that the proposed development incorporates preferred uses in any way overrides or otherwise negates LPP 3.2.12's requirement for a minimum of three storeys on a prominent corner site. While, on the evidence, it must be accepted that certain uses may result in different architectural style and form of buildings, this does not in any way take away from the clear policy intent for height, as well as bulk and scale, on prominent corner sites.
The Tribunal is satisfied that the proposed building does add at least some additional height to the corner building (as compared to the rest of the proposed building) through the integration of vertical elements, in this case the architectural element. While there was dispute between the architects as to whether the architectural element on the corner of the main building of the proposed development was an 'architectural feature' within the meaning of LPP 3.2.12 (and therefore does not count towards 'height' as defined in LPP 3.2.12), we are satisfied that it is a vertical element within the meaning of cl 8.1.5 of LPP 3.2.12.
Although there was some debate amongst the witnesses as to whether the proposed development added 'legibility' as contemplated by cl 8.1.5 of LPP 3.2.12, the differences rested more on the 'placemaking' aspect than any real concern about legibility. We are satisfied that the incorporation of a large sign in the architectural element of the proposed development will add legibility, in terms of ability to read, to the access and movement network, at least in so far as it will assist in highlighting the intersection of Council Avenue and Read Street.
In relation to the ability of the proposed development to assist in placemaking, both of the experts agreed that this aspect depended on the distinctiveness, recognisability and relevance of the development on the site. We are satisfied that the requirements and aims of LPP 3.2.12, which is an urban renewal strategic focused planning instrument, should be considered having regard not only to the current streetscape, but also to the likely future streetscape in the locality. We accept, as Mr Delahunty said in evidence, that LPP 3.2.12 does evince a clear intent for the precinct to generally achieve a two storey or more overall height.
In the course of the site view, it was apparent that, as opined by Mr Klopper, the proposed development would be largely indistinguishable from other 'big box' showroom type developments in the area. In giving his opinion on the distinctiveness of the proposed development, Mr Mackay was more focused on the current streetscape, and for this reason, and because his view did not accord with our observations of the current streetscape, we prefer the evidence of Mr Klopper on this issue. While the proposed development would be recognisable, because of its signage, and in particular the signage within the architectural element on the corner, we are not satisfied it would be, in either the current, or the likely future streetscape, distinctive. We accept that, because the proposed development includes preferred uses for the relevant precinct and the sub-precinct, it would be relevant, however we nonetheless find that the lack of distinctiveness, as well as the lack of height, bulk and scale, do not deliver the place-making aims for a prominent corner site.
In relation to the site's designation as a gateway location, we are not satisfied that the proposed development achieves the aims for that designation. The proposed development does not in any way provide a landmark as contemplated by LPP 3.2.12 for gateway locations. In addition, the proposed development does not incorporate any significant landscaping, and none on the boundaries facing Council Avenue and Read Street. As this site is the one gateway location which is intended to include not only built form but also landscaping elements in achieving that gateway function, we are not satisfied that the proposed development meets LPP 3.2.12's requirements in relation to its gateway designation.
The final layer of analysis under LPP 3.2.12 is to consider the site's designation within the Council Avenue Sub-Precinct, although as it happens, nothing turns on this.
The objectives of the sub-precinct include commercial as well as mixed use and residential buildings. The focus here is not so much on only mixed use and residential buildings. The preferred uses, perhaps in accordance with the wider range of types of buildings contemplated by the objectives for the sub-precinct, include retail, office and commercial, showrooms, entertainment and leisure as well as multiple dwellings and residential (which are to be located on the first floor and above). Thus, the ground floor is preferred to be a commercial, retail, office, showroom or entertainment/leisure use and any multiple dwelling/residential is to be located above ground floor.
Similarly to the Hefron Precinct, the Council Avenue SubPrecinct's prominent corner sites are required to 'reinforce the townscape structure, aid place-making and add legibility to the access and movement network'.
The proposed development does provide a contiguous street front building with active ground level frontages to Council Avenue and part of Read Street, as well as shopfronts, in accordance with the required elements in cl 6.1.5.3 of LPP 3.2.12.
There are no additional requirements in relation to building height, other than that the development is to be a maximum of five storeys, in the provisions concerning the Council Avenue Sub-Precinct. The built form requirements provide for prominent corner sites to be developed as per s 8.1 of LPP 3.2.12.
Other than the previously noted failures to meet requirements for a prominent corner and gateway site, the proposed development meets the required elements for the Council Avenue Sub-Precinct.
Should the LPP 3.2.12 be departed from in the circumstances of this case?
The proposed development does not comply with a number of aspects of LPP 3.2.12. We therefore consider whether there is a reason to depart from policy in the circumstances of this case.
The Centre Plan and the subsequent LPP 3.2.12 are, on their face, well researched and wellconsidered expressions of strategic planning aimed at achieving urban renewal for the area. The LPP 3.2.12 is dated August 2016 and references to it were incorporated into LPS 2 in 2017. The LPP 3.2.12 notes that there are limited avenues for achievement of its aims, at least in the reasonably foreseeable future. A policy of this kind, which is recent, is based on sound planning principles, is seeking to achieve urban renewal, and involves considered strategic planning, should be one which a decision maker is slow to depart from on the basis of orderly and proper planning if that departure would potentially stymie or prevent fulfilment of the strategic vision contemplated.
The Tribunal accepts, as indicated above, that the 'Main Street' aspirations of the Centre Plan and that LPP 3.2.12 are somewhat difficult to envisage in the location of the site because of the existing road reserve and its features. It also accepts that there may be some reasonable questions about the appropriateness of the site for a gateway location. However, while it may be the case that the policy is to an extent 'aspirational' in its vision, particularly in light of the largely built out nature of the majority of the locality as it currently exists, it is not for the Tribunal to determine that the strategic vision contemplated should or should not have been adopted, or is, or is not, worthwhile.
LPP 3.2.12 identifies the site as an important location at which the aims of the policy can be achieved. The proposed development does not comply with a number of the requirements that arise given its designation as a prominent corner site and a gateway location. We are satisfied that the lack of compliance is not just technical, or of form, but is a matter of substance. The proposed development largely fails, in terms of height, bulk, scale, distinctiveness, landscaping and as a landmark, to meet the requirements for a site designated as both a prominent corner site and a gateway location.
The applicant points to the history of the site and the fact that is has long been vacant and suggests that this is a basis to approve the proposed development. It also asserts, without any evidence in support, that the proposed development is economically viable and a development that complied with the requirements of LPP 3.2.12 would not be. The applicant argued that the proposed development does comply with LPP 3.2.12 and did not submit any other reason why LPP 3.2.12 should be departed from.
The departure from LPP 3.2.12, for a site designated as both a prominent corner site and a gateway site (built form and landscape), is significant and would, we find, tend to stymie the strategic vision encapsulated by LPP 3.2.12 because of the degree of departure involved. It was submitted that the proposed development could be further developed at some later point in time so as to be brought more in line with the requirements of LPP 3.2.12. No evidence in support of this submission was produced. We are not satisfied that in the circumstances there is any reason to depart from the requirements of LPP 3.2.12.
The safety and appropriateness of the Council Avenue crossover
The Tribunal heard from three expert witnesses in relation to the safety of the proposed Council Avenue crossover. Mr Johnathan Philip Riley is a traffic engineer with approximately 25 years of experience. Mr Scott John Joseph Lambie is a road safety auditor with approximately 10 years of experience. Mr Darren James Levey is a traffic engineer and transport planner with approximately 20 years of experience. All are well qualified to provide expert evidence in relation to the safety of the proposed crossover to the Tribunal, and all three men appeared to be trying to assist the Tribunal in a non-partisan way.
Matters on which the experts agree
Following a conferral of the three experts in the absence of the parties, the experts produced a Joint Witness Statement (Exhibit 15). The matters on which they agree are as follows.
Main Roads WA Traffic Map shows that traffic flows on Read Street were 28,900 vehicles per day (Monday to Friday) north of Rae Road during 2016/17. Council Avenue had 14,700 vehicles per day at its eastern end (west of Ennis Avenue) during 2017/18; but there are no traffic counts at the western end of Council Avenue in the vicinity of the site. Sepia Court provides vehicle access to 92 dwellings
Mr Levey carried out a PM peak period traffic count at the Council Avenue and Sepia Court intersection on Thursday 28 March 2019. He also obtained existing Main Roads WA 'SCATS' traffic data for the Read Street and Council Avenue intersection (Exhibit 5, para 33). Based on that information, Mr Levey concluded that Council Avenue currently carries 12,570 vehicles per day east of Read Street and 11,740 vehicles per day east of Sepia Court. Sepia Court carries an estimated 600 vehicles per day south of Council Avenue. He also noted that 579 vehicles per hour travel west on Council Avenue during the PM peak hour, 423 (73%) turn left into Read Street, compared to just 156 vehicles per hour (27%) travelling through or turning right. Mr Riley and Mr Lambie also calculated the traffic flows based on traffic surveys and agreed that all three sets of data are consistent with each other, with minor difference that do not have any material impact on the overall analyses carried out by the experts.
The critical queue impacting the proposed access off Council Avenue is the left-turn queue from Council Avenue into Read Street. Based on an agreed queue length of 7.5 metres per vehicle, a queue of 11 vehicles would extend to 83 metres, which would be just short of the proposed Council Avenue crossover. They therefore agreed that a queue length of 12 vehicles would block the proposed crossover. That queue length is only achieved once during the four hour survey on Thursday 14 March 2019 but was reached five times during the four hour survey period on Thursday 28 March 2019. It is agreed that both queueing surveys were valid, reflecting minor variations on different survey days. The average queue length in both surveys is consistent, with an approximate average of five to six vehicles across the four hour peak period. It is agreed that the average queue length for the left turn lane in Council Avenue is up to 45 metres. It is agreed that if traffic flows at the Read Street intersection with Council Avenue increase in the future, then the queue lengths within Council Avenue are also likely to increase.
Mr Levey and Mr Lambie carried out surveys of buses stopping at the bus stop adjacent to the site. It was agreed that the results of these were consistent with each other, and the minor differences do not affect the outcomes of the subsequent analysis. Using Mr Levey's survey, in the region of 40 buses stop at the bus stop during a four hour afternoon peak period. Each bus stopped for an average duration of just under 40 seconds, although the time increased to nearly 50 seconds during the peak hour. The minimum stop duration was approximately seven seconds and the maximum duration was just over two minutes. There were seven occasions when there were two buses stopped at the bus stop at the same time and one occasion when there were three buses stopped.
The experts agreed with the analysis of the future traffic generation estimated by Mr Levey in relation to trip generation and distribution of traffic flows as identified in Figure 6 of Mr Levey's statement (Exhibit 5). They also agreed that the future traffic generation on Sepia Court, with or without the proposed Council Avenue crossover, will remain below 3,000 vehicles per day.
Any new connection to an existing road will increase the possibility of crashes at that location, and therefore the introduction of the proposed Council Avenue crossover will increase the possibility of crashes. They agreed that any crash that may occur at that location is likely to be low impact and unlikely to result in injury.
The proposed Council Avenue crossover complies with the Main Roads WA Driveway Policy (Policy) and with the requirements of Australian Standard AS 2890.1 1993 Parking facilities Off-street car parking (AS 2990.1). These documents identify where an access driveway 'shall not' be located, and that there are other factors that may result in an access being appropriate.
The Tribunal does not have any basis to doubt that the experts are correct in relation to these matters. The reasoning and foundation for their opinions were conveyed clearly to the Tribunal, by way of written and oral evidence. The Tribunal therefore makes findings in accordance with all of the above identified agreed matters.
Matters on which the experts disagree
The experts disagree in relation to two things. Firstly, whether the Austroads document Guide to Road Design Part 4: Intersections and Crossings: General (Austroads Guidelines) should be applied to the proposed Council Avenue crossover. Second, whether the existing bus stop needs to be moved for safety reasons, and if so, where the bus stop should be moved to.
The proposed access is approximately 85 metres east of the traffic signals stop line at the Read Street and Council Avenue intersection. It is approximately 55 or 60 metres west of the Sepia Court and Council Avenue intersection. The west bound left lane on Council Avenue is a dedicated left turn movement at the intersection with Read Street. Vehicles leaving the site heading west will be required to cross over the left lane in order to continue straight on Council Avenue, or over two lanes in order to turn right into Read Street. The plans for the proposed development show a median strip in the middle of Council Avenue adjacent to the proposed Council Avenue crossover (which currently exists), which would have the effect of rendering the access left-in leftout only.
Mr Levey is of the opinion that the Austroads Guidelines are applicable and in particular its recommendations in relation to the need for sufficient space between an access driveway and the functional area of intersections. Mr Levey says that the Austroads Guidelines state that the provision of a driveway in the functional area of an intersection is undesirable and should not be permitted (Exhibit 5, paras 5254).
The upstream functional area of an intersection is the length over which vehicles on the through road are manoeuvring to execute a right or leftturn at the intersection road, including storage or the queue length. The downstream functional area is the length required for a driver to avoid a collision with a vehicle entering the road from a downstream access connection. On Mr Levey's calculations the proposed Council Avenue crossover is located within the upstream functional area of the Read Street and Council Avenue intersection. It is also within the downstream functional area of the Sepia Court and Council Avenue intersection. On this basis, Mr Levey considers the proposed crossover will be unsafe and will have a negative effect on overall traffic flow within Council Avenue. Mr Levey acknowledges that the Austroads Guidelines do contemplate that it may not be possible to prevent accesses within the functional areas of intersections, and in fact this does occur, in his view, as the site has alternative access options, the proposed crossover on Council Avenue should not be allowed.
Mr Riley considers that the Austroads Guidelines are not applicable to consideration of the proposed Council Avenue crossover because while Main Roads WA is a party to Austroads it has not adopted the Austroads functional intersection area requirements in relation to access driveways in its Driveway Policy. In addition, the Austroads Guidelines are not expressed as mandatory requirements, but rather as discretionary considerations. In Mr Riley's opinion, the concept of avoiding providing access within the functional area of intersections is more appropriately applied when designing new roads. In his view, the proposed access is sufficiently safe and is appropriate. On Mr Riley's calculations, given the average queue lengths from the Council Avenue and Read Street intersection, the queue will not generally block the access, and as such he would be satisfied that the proposed crossover is appropriate on the basis that it is left-in leftout only.
Mr Lambie considers that the Austroads Guidelines are design guidelines which are prepared as a guiding tool for road design practitioners and local jurisdictions such as Main Roads WA. A body such as Main Roads WA will regularly alter requirements contained within Austroads documents, such as the Austroads Guidelines, within their jurisdiction by introducing policies that contain design requirements. Mr Lambie considers that the Austroads Guidelines provisions in relation to functional areas of intersections are lacking in specificity in a number of areas and are overly restrictive. In addition, Mr Lambie identified that the Council Avenue and Read Street intersection, and any vehicle queue from that intersection is visible from an approaching vehicle from approximately 150 metres from the intersection. In his opinion, given the agreed average queue equates to a distance of approximately 45 metres, there would be plenty of time to observe the queue, and any vehicle exiting the proposed crossover which would be joining the end of the queue and to react to avoid collision: ts 66-67, 17 April 2019. In addition, in his view the design speed used by Mr Levey in his calculations was too high given the conditions on this part of the road, with the upcoming intersection means that actual speeds are generally much lower: ts 67, 17 April 2019.
In relation to the bus stop, the experts disagreed on whether there was any need to move it from its current location. The reason for consideration of movement of the bus stop was that when buses are stopped at the bus stop this reduced the site lines from the proposed crossover and impacted on the ability to provide sufficient time for an approaching vehicle to see a vehicle exiting the crossover and react to stop in time to avoid collision (because the crossover is located within the upstream functional area of the intersection). In addition, if two or more buses stop at the bus stop, which the experts agree occurs once in the evening peak hour period assessed, the buses will potentially block the crossover. Mr Riley did not see either of these issues as being significant and was of the view that there was not any need to move the bus stop for the proposed crossover to work appropriately. Mr Lambie considered that it would be possible to leave the bus stop where it is or move it just a short distance closer to the intersection of Council Avenue and Read Street. This is because in his view the frequency and length of period that buses impact on sightlines or obstruct the proposed crossover is not sufficient to warrant moving it: ts 149, 17 April 2019. Mr Levey prefers that the proposed crossover not occur on Council Avenue at all, however if it is to be allowed, it can only be made sufficiently safe if the existing bus stop is moved from its current location.
None of the experts resiled from their positions in relation to the suitability of the proposed Council Avenue crossover during the hearing. Mr Riley and Mr Lambie remained of the view that it met the mandatory requirements and it did not need to meet the Austroads Guidelines requirements. Mr Levey remained of the view that any proposed crossover from the site onto Council Avenue should comply with the Austroads Guidelines requirements not to locate a crossover within the functional area of an intersection because there are other potential access points into the site. In those circumstances it is not necessary to allow noncompliance with the Austroads Guidelines, and compliance is preferable. All of the experts agreed that any crash caused by the location of the proposed crossover would be low impact and unlikely to result in injury. All of the experts agreed, that if necessary, the existing bus stop could be moved to a location further east on Council Avenue, to a location near to the existing pedestrian underpass, and if this occurred the safety of the proposed crossover would be maximised. Mr Lambie and Mr Riley considered that, from a pedestrian safety point of view, movement of the bus stop to that location is desirable, and safer than the existing location.
The Tribunal heard from Mr Brad Holden, an employee of the Public Transport Authority of Western Australia (PTA) in relation to the existing bus stop and the proposal to move the bus stop. The PTA is the sole agency responsible for bus stop locations, and any proposal that potentially impacts on any existing bus stop is reviewed by it (Exhibit 4, para 9). The PTA does not permit any works to take place at a bus stop location without its agreement. Mr Holden explained that, having regard to Disability Standards and related legislation, the PTA generally prefers sites for bus stops that have a safe level boarding area. The PTA is also concerned about the amenity of bus stops from the users' perspective. They take into account issues such as whether there are opportunities for passive surveillance, which assists in providing a safe user environment, and proximity to controlled intersections to allow the opportunity for safer pedestrian crossing options: ts 119, 17 April 2019. In addition, the current bus stop is located in close proximity to two of the entrances to the shopping centre on the other side of Council Avenue. Information held by PTA indicates that the users prefer to enter the shopping centre at these two locations as the bus stop to the east, near the third entrance into the shopping centre is not well patronised: ts 122, 17 April 2019.
In the location at which the traffic experts preferred, near the pedestrian underpass on Council Avenue, the road and the footpath are at different heights, and as such, the verge between the road and the footpath is at a significant grade. While Mr Holden accepted that a bus stop at that location could be made compliant with Disability Standards by the use of a ramp, he did not consider this desirable. In his opinion this type of scenario is impediment to encouraging people to use public transport as opposed to a flat surface: ts 123, 17 April 2019. It was also his view that the proposed bus stop offered less in terms of passive surveillance, and therefore user amenity and sense of safety, than the existing bus stop. Mr Holden accepts that the proposed bus stop is close to the pedestrian underpass, but considers that the existing bus stop offers better amenity to the users than the proposed bus stop: ts 129, 17 April 2019. He was also concerned that the evidence of the patronage of the existing bus stop on the other side of Council Road, which is approximately opposite to where it is proposed to move the bus stop, suggested that not many people use the entrance to the shopping centre in close proximity to that location and therefore they may still wish to enter at the entrances closer to the Read Street and Council Avenue crossover: ts 132, 17 April 2019. Despite his initial statement that if the bus stop had to be moved to the proposed location to the east, PTA would be likely to delete the bus stop altogether, Mr Holden agreed in cross-examination that if the Tribunal imposed a condition requiring the bus stop to be moved, the PTA would consider the matter further: ts 122 and 132, 17 April 2019.
In relation to whether or not the proposed crossover on Council Avenue is contrary to the Austroads Guidelines because it involves an access that is within the functional area of two intersections, the Tribunal prefers the evidence of Mr Levey. Mr Levey applied the formula specified by the Austroads Guidelines and used the design speed and reaction time specified in that document. The other experts did not disagree with Mr Levey's calculations, however they considered that the fact of the intersection at Read Street and Council Avenue and the queueing there, would mean that cars would be approaching more slowly than the design speed used by Mr Levey, and the sight lines were sufficient to provide reasonable reaction times. Mr Levey explained that when designing roads and accesses, it is necessary to use a 'worst case' scenario as specified in the Austroads Guidelines: ts 75, 17 April 2019. Neither Mr Riley nor Mr Lambie disagreed with that statement and the Tribunal accepts it to be correct. The Tribunal is satisfied, and finds, that the proposed crossover on Council Avenue does not comply with the preference that access points not be located within the functional area of an intersection.
Having said that, the Tribunal accepts that the Austroads Guidelines do not expressly apply to crossovers as stated by Mr Riley (and not disputed by any other expert): ts 77, 17 April 2019. Mr Levey accepts that the crossover is not a road, but considers it should be analysed under the Austroads Guidelines because it creates a new intersection, and there is the opportunity to reach 'best practice' because there are other accesses available to the site. All of the experts accepted, that there will be circumstances in which one cannot comply with the Austroads Guidelines. The Tribunal notes that the applicant submitted that the proposed crossover was essential to the proposed development and it did not consent to a condition removing the proposed crossover if the application were otherwise successful: ts 3738, 16 April 2019. In light of the agreement between the experts that any crash at this location is likely to be low impact and unlikely to result in injury, the Tribunal is not persuaded that it would be reasonable in the circumstances to refuse to allow the proposed crossover just because it does not fully comply with the Austroads Guidelines.
As indicated above, in Mr Levey's opinion, if the proposed crossover is to be allowed, it is his view that it would be necessary to move the existing bus stop from its current location to minimise the conflict potential of the access and to maximise sight lines. Mr Lambie and Mr Riley did not agree that movement of the bus stop to the location near the pedestrian underpass was necessary because of the Council Avenue crossover, they did consider that location to be preferable for pedestrian safety. They did agree that moving the bus stop would maximise the safety of the proposed crossover.
The applicant submits that any concerns in relation to the safety of the proposed Council Avenue crossover can be adequately ameliorated by a condition requiring that the bus stop be relocated and for the applicant to pay for that relocation. As is apparent from the summary of the evidence above, this is not a proposal that is currently supported by the PTA, although if the Tribunal were to order that the bus stop was to be relocated, the PTA would consider whether or not to move the bus stop, or whether it should delete the existing bus stop. The question arises; can the Tribunal order an activity to be undertaken that can only be done by a third party who has expressed a preference not to do so, and at most, has committed to considering whether or not it would be prepared to carry out the activity.
The Tribunal has previously stated that it is not unusual that a condition is imposed on a use or activity that otherwise is within the power of a third party: Coastal Midwest Transport and City of Canning [2012] WASAT 202 at [47]. In that case, the requirement that a decision had to be made by Main Roads WA to allow restricted vehicles on the relevant road system was anticipated by the use of a condition deferring commencement of the development until after that permission had been obtained. However, the statement has to be understood in context. While it may be common for conditions to be imposed which require a third party to consent to something, care must be taken to ensure the condition does not thereby become ambulatory: Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities and Others [2013] FCAFC 111; (2013) 215 FCR 301 at [158]-[179] (Buzzacott). The determination of whether a condition is ambulatory (which concept includes a condition that has the effect of significantly altering the development as well as a condition that is sufficiently uncertain so as to be invalid) is a matter of statutory construction of the power to impose conditions and will involve questions of degree: Buzzacott at [177] and [179]. As recently explained in Conservation Council of Western Australia (Inc) & Ors v The Hon Stephen Dawson MLC & Anor [2018] WASC 34 at [139][140] (CCWA) (citations omitted):
Further, the cases expressly recognise that conditions which retain a degree of flexibility with respect to a development, or which involve a third party in the supervision of a stage of the development, should be taken to be within contemplation of a legislature conferring a power to impose conditions with respect to a complex development, given that it cannot be supposed that an application prepared prior to the commencement of a complex development can contain all details or predict with certainty the course which the development might take over what may be a long lifetime.
In this State, that approach has been specifically adopted in relation to the imposition of conditions under the [Environmental Protection] Act [1986][.]
The power to approve a development application under a local planning scheme subject to conditions comes from cl 68(2) of Sch 2 of the LPS Regulations. Schedule 2 of the LPS Regulations contains deemed provisions to which s 257B of the Planning and Development Act 2005 (WA) (PD Act) applies, and are therefore applicable to all local planning schemes: r 10(4) of the LPS Regulations and s 257B of the PD Act. That power is not expressly limited in any way, although of course this does not mean the power is unlimited: CCWA at [136]. One would have to have regard to the objectives and aims of the local planning scheme together with its other provisions as well as relevant provisions of the PD Act, in order to determine the limits of the power to impose conditions. Clause 74(1) of the LPS Regulations interestingly provides an express power to grant development approval subject to a condition that further details of any works or use specified in the condition must be submitted to, and approved by, the local government before the development is commenced. Pursuant to cl 74(2) of the LPS Regulations, a condition made in accordance with cl 74(1) may only be made if the local government is satisfied that the further matters that are to be approved would not substantially change the development approved. Thus the ability to impose conditions that are to a degree uncertain at the time the condition is imposed, in accordance with the principles summarised in Buzzacott, has been expressly confirmed in the LPS Regulations.
In Opal Vale Pty Ltd and Shire of Toodyay [2013] WASAT 88, at [36]-[37] the Tribunal considered what it described as 'deferred commencement' and whether a condition could require a decision to be made by a third party about a related but separately necessary approval prior to the commencement of the development. In the course of this discussion the Tribunal referred to McLeod's Planning & Development WA, Presidian Legal Publishing, at [18.300.55] and reproduced the following portion of that text:
It is not unusual that a planning approval be conditional upon an action by a third party if it is clear that the third party is most likely to be taking that action in the immediate future. Pursuant to such a deferred commencement condition, the approval would only be enlivened once the action is performed by the third party: Coastal Midwest Transport and City of Canning [2012] WASAT 202 at [77]; Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297 at [12]; Grampian Regional Council v Aberdeen District Council (1983) 47 P & Cr 633. Such a condition is, for the Tribunal, within the ambit of s 29(3) of the SAT Act: Coastal Midwest Transport, above, at [78].
Conditions imposed on a development or subdivision will sometimes involve a third party. Such conditions can, for example, involve work such as a median strip or a sewerage connection. Conditions of this type 'might be imposed when there is a genuine likelihood that the condition can be satisfied within the life of the approval granted and are not speculation': Dalcorp Holdings Pty Ltd and Town of Victoria Park [2011] WASAT 18 at [48].
It is not consistent with orderly and proper planning to approve a subdivision subject to a condition that it requires the agreement of a third party in the absence of any evidence that such agreement can be obtained: Bernardini and WAPC [2010] WASAT 105.
In the circumstances of this case, the Tribunal is not satisfied that it is appropriate, or indeed possible, to require the bus stop to be moved. The agency with the complete authority to make decisions about bus stop locations, the PTA, is not a party to these proceedings, so it cannot be bound to do something against its will albeit a condition imposed on any approval in this case. If the PTA had supported the movement of the bus stop, that would be a different a matter.
On the evidence before the Tribunal, it would be preferable, in terms of safety of the proposed crossover, for the bus stop to be moved to the alternative location suggested by the experts, that is, near the pedestrian underpass. However, whether the bus stop will or will not be relocated is a matter for the PTA. If the PTA decides to relocate the bus stop because of the Tribunal's decision to allow the proposed crossover, it would be appropriate that the applicant meets the costs of that relocation. A condition that required the applicant to meet the costs of relocation of the bus stop if that occurs because of the creation of the proposed crossover would be uncertain, however, we are satisfied it will not be sufficiently uncertain so as to be ambulatory if we limit the obligation to a fixed period of time. If the bus stop is required to be moved because of the crossover, it seems reasonable to assume that that relocation would occur relatively quickly after the crossover is created. Therefore, we would impose a condition requiring the applicant to meet the costs of relocating the existing bus stop if the PTA provides the applicant with a written statement that the relocation was because of the creation or existence of the crossover and that relocation occurs within 12 months of the creation of the crossover.
The appropriateness of the proposed signage in dispute
The signage that the respondent originally objected to is two proposed signs associated with the convenience store (petrol station) which are shown on pages 4 and 11 of Exhibit 2. One is affixed to the parapet of the roof of the convenience store and the other is a pylon sign. During the course of hearing, the respondent indicated that only one of the signs, the so called 'roof' sign, remained in contention. Under LPP 3.3.1 this sign comes within the meaning of 'signs on buildings', which includes any sign attached or otherwise displayed on a building (Exhibit 2, page 709).
The assessment criteria for signs on buildings in LPP 3.3.1 specifies that the advertiser must submit a sign strategy demonstrating compliance with the objectives of LPP 3.3.1 but does not otherwise specify any particular requirement. By inference, the sign will presumably be approvable if it complies with the objectives of LPP 3.3.1. The objectives of LPP 3.3.1 are stated at cl 3, which relevantly states:
The objective of this Planning Policy are to:-
(a)Ensure that advertisements are appropriate for their location;
(b)Minimise the proliferation of advertisements;
(c)Ensure that advertisements do not adversely impact on traffic circulation and management, or pedestrian safety;
(d)Protect the amenity of residential areas, townscape areas and areas of environmental significance;
…
(h)Ensure advertisements are generally erected on land where the advertised business, sale of goods or service is being carried out; and
(i)Ensure that advertisements are maintained to a high standard.
On the site view it was apparent that opposite and elsewhere in the near vicinity to the site there are a number of very large advertising signs that are similar to those proposed by the applicant in this case.
There is no suggestion in the evidence that the sign in question will adversely impact on traffic circulation and management or pedestrian safety, or that it will in any way adversely impact the amenity of the locality.
The sign is to be located on the site, which is the location of the business to be advertised on the sign. There is no suggestion in the evidence that the sign would not be maintained to a high standard.
The Tribunal is satisfied that the proposed sign complies with the relevant objectives of LPP 3.3.1. We would allow the proposed sign.
Conclusion
The Tribunal is satisfied that the matters analysed cover the factors raised by cl 67(g), (h), (m), (s), (t), (u) and (w) of Sch 2 of the LPS Regulations.
We note that there is no suggestion, by any party, that the proposed development would have any negative impact on the amenity of the locality, and it is not apparent that it would in fact have any such impact. Accordingly we are satisfied that the proposed development does not have any negative impact on the amenity of the locality. In fact, given the current state of the site, the proposed development is more likely to have a positive impact on the amenity of the locality.
The original proposal was advertised over a period of 21 days. A total of 11 submissions were received, which included six objections and five submissions in support of the original proposal. One of the City of Rockingham's planning officers summarised the objections in the Responsible Authority Report (Exhibit 2, pages 96101). We have taken into account the submission made, however they did not raise any relevant planning issue that was not already in consideration, which we have canvassed elsewhere in these reasons.
Having regard to all of the relevant matters, we have determined that the correct and preferable decision in all of the circumstances is that the proposed development should be refused. In reaching this conclusion we have placed more weight on the inconsistencies between the proposed development and LPP 3.2.12, in particular having regard to the site's designation as a prominent corner site and a gateway site in that policy, and the lack of a reason to depart from that policy in the circumstances of this case, than on the factors that would support approval of the proposed development. We do this because of the relatively recent adoption of the Centre Plan and LPP 3.2.12, as well as the detailed and considered strategic planning involved in those instruments in the context of desired urban renewal for the area. For these reasons, the respondent's decision to refuse the proposed development should be affirmed.
Orders
1.The decision of the Metropolitan South-West Joint Development Assessment Panel made on 26 February 2019 to refuse the development application to use Lot 301 Council Avenue, Rockingham for the purposes of a mixed commercial development including a health studio, restaurant, showrooms and convenience store selling fuel is affirmed.
2.The application for review is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
19 AUGUST 2019
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