ARP NO 10 PTY LTD and METROPOLITAN REDEVELOPMENT AUTHORITY

[2019] WASAT 85

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   ARP NO 10 PTY LTD and METROPOLITAN REDEVELOPMENT AUTHORITY [2019] WASAT 85

MEMBER:   MR M SPILLANE, SENIOR MEMBER

MR P DE VILLIERS, MEMBER

MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   14, 15, 16, 17, 24 MAY AND 11 JUNE 2019

FINAL SUBMISSIONS RECEIVED ON 25 JUNE 2019

DELIVERED          :   10 OCTOBER 2019

FILE NO/S:   DR 139 of 2018

BETWEEN:   ARP NO 10 PTY LTD

Applicant

AND

METROPOLITAN REDEVELOPMENT AUTHORITY

Respondent

Catchwords:

Administrative law - Review of conditions attached to approval - Metropolitan Redevelopment Authority - Development Control Policy 5.1 - Due regard - Orderly and proper planning

Legislation:

City of Swan Local Planning Scheme No 17
Metropolitan Redevelopment Authority Act 2011 (WA), s 7, s 30, s 30(5), s 30(5)(c), s 51, s 62(2), s 65(2), s 66, s 69
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 14
Metropolitan Region Scheme
Midland Redevelopment Scheme No 2, cl 1.7(1), cl 1.11, cl 1.13(1), cl 1.13(4), cl 2.3, cl 3.3.1, cl 4.1, cl 4.2, cl 4.7, cl 4.8, cl 5.5, cl 5.17, cl 5.17(g)
Planning and Development Act 2005 (WA), s 241, Pt 14

Result:

Application partially successful

Category:    B

Representation:

Counsel:

Applicant	:	Mr P McQueen
Respondent	:	Ms C Ide

Solicitors:

Applicant	:	Lavan
Respondent	:	State Solicitor's Office

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

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1. The application for review by ARP No. 10 Pty Ltd (applicant) is in respect of conditions 3 and 4 attached to the decision of the Metropolitan Redevelopment Authority (respondent) to approve a development application for what is known as the Midland Saleyards (subject site) on 7 June 2018.

2. The applicant filed its application for review on 13 June 2018 and at that time sought review of conditions 2, 3 and 4.  However, on 21 December 2018, the applicant filed amended plans which formed the subject of the review along with amended grounds of review.  At that time, the applicant also confirmed that it only sought to review conditions 3 and 4 of the development approval both of which related to access to the subject site.

Locality

1. The subject site is bounded by Lloyd Street to the west, part of which is yet to be constructed, Clayton Street to the north and industrial land to the east and south.

2. The subject site is located within the Clayton Precinct of the Midland Redevelopment Area, and any development, as defined by the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act), requires development approval from the respondent.

3. A portion of the site to be developed is located outside of the Midland Redevelopment Area and is subject to the City of Swan Local Planning Scheme No 17 (LPS 17).

4. The Clayton Precinct is a former industrial area with large land parcels that are being progressively redeveloped to accommodate medium to high intensity, employment focused land uses.

5. The Midland Master Plan (Master Plan) identifies the site for 'showroom, commercial and enterprise employment uses'.

6. Clause 3.3.1 of the Midland Redevelopment Scheme No 2 (MRS 2 or Scheme) identifies the intent for the Clayton Precinct as being a high employment generator with large format retail development taking advantage of the access to regional roads, while ensuring a safe urban environment for pedestrians and workers.  Clause 3.3.1 specifically identifies the subject site as providing opportunities to expand upon the Clayton Precinct's existing land uses.

7. The Metropolitan Redevelopment Authority (Authority) sold the subject site to the applicant as Trustee for the ARP No. 10 Unit Trust, which was subject to a Project Development Agreement executed on 12 December 2016.  Settlement of the sale of the subject site occurred on 15 March 2017.

8. The planning approval which contained conditions 3 and 4 which are under review was granted on 7 June 2018.

Conditions under review

1. Condition 3 states:

   3.All necessary road worlks for the development to operate in a safe and legible manner, in accordance with the applicant's Transport Impact Assessment (Cardno, 22 February 2018) and Traffic Impact Summary Letter (Cardno, 22 March 2018) are to be completed by the applicant, at its expense, prior to the commencement of operation of the development, including:

   •construction of the Clayton Street/Cowie Close roundabout adjacent to the north eastern corner of the site;

   •the minimum access configuration for Lloyd Street to provide vehicle access to the 'Public Link Road' at the south­western corner of the site in the event that the full Lloyd Street extension is not constructed at the time of commencement of operation;

   •construction of a median strip on Clayton Street to prevent right turn movements into or out of the mid-block Clayton Street access;

   •construction of a median strip within the 'Public Link Road' south of the roundabout to prevent southbound traffic entering the service station site directly;

   •the 'Public Link Road' is to be constructed in accordance with the approved plans and available for public use in perpetuity including unrestricted access to Transperth buses, protected either through dedication as a public road or registration of a public access easement in gross; and

   •Lloyd Street and Clayton Street are to be widened in accordance with the Midland Redevelopment Area Design Guidelines by the owner/applicant and the land transferred to the Crown free of cost.

   Details of all works outlined above are to be submitted at working drawings stage and implemented at the applicant's expense prior to the operation of the development, to the satisfaction of the MRA in consultation with the City of Swan. (Refer to Advice Note c)

2. Advice Note (c) attached to the development approval provided:

   With regard to Condition 3, the City of Swan has advised that road upgrades on Clayton Street are unlikely to be undertaken until 2020 at the earliest.  They Clayton Street Road upgrades, including the construction of the Clayton Street/Cowie Close roundabout are to be completed, at the applicants cost in consultation with the City of Swan or as otherwise agreed with the City.

   In the event that the Lloyd Street extension has not been completed prior to commencement of development the developer should construct a single carriageway of the future road to tie into the existing intersection at Coppershop Road.  At this time the eastern verge works, including the proposed left-turn pocket would be constructed.

   The link road access from the Lloyd Street extension should consist of a sacrificial priority intersection or 90 degree bend, constructed to the appropriate standard and within the envelope of the future roundabout.

   The applicant is advised that Lloyd Street is being designed as a Restricted Access Vehicle 1 (RAV1) network which will be capable of accommodating up to a 19m vehicle and no greater.

   With regard to the Public Link Road, in accordance with the MRA's Midland Master Plan, the Midland Design Guidelines, and the Traffic Impact Assessment (Cardno, 22 February 2018), the Public Link Road is intended to provide an alternative route to relieve pressure from the Clayton Street / Lloyd Street intersection for general traffic travelling to and through Midland, as well as providing access to the future Public Transport Authority bus depot to the south of the current development.

   As such, the road is required to be constructed in accordance with the approved plans and available for public access prior to the commencement of operation of the development and in perpetuity. Public access is to be protected through the dedication of the road as a public road or registration of a public access easement in gross, requiring the Public Link Road to remain open to the public at all times.

   As the Public Link Road will provide access to the future PTA bus depot, unrestricted access is to be provided for Transperth buses and Transperth is to be consulted regarding any future modification to the road that may impact Transperth buses.

3. Condition 4 states:

   4.The plans and supporting technical reports are to be amended to detail the following traffic and access modifications:

   •the mid­block Lloyd Street access and the mid­block Clayton Street access are both restricted to left­in/left­out movements only;

   •demonstrate compliant service vehicle turning movement templates for all service areas throughout the site to support ease of movement and prevent vehicle and pedestrian conflict; and

   •provide existing and finished levels for the site demonstrating vehicle and pedestrian access points seamlessly integrate with the existing boundary and minimise the height and extent of retaining walls abutting the site boundary.

   Details are to be submitted at working drawings stage and implemented prior to the operation of the development, to the satisfaction of the MRA in consultation with the City of Swan. (Refer to Advice Note d)

4. Advice Note (d) attached to the development approval relevantly provided:

   ... Lloyd Street is designated as an 'Other Regional Road' and as such, vehicle access points should be limited.  To avoid conflict with northbound and southbound vehicle movements on Lloyd Street, the mid-block access on Lloyd Street ('Access 2') is to be restricted to left­in/left-out only in accordance with the Midland Master Plan. Alternative access arrangements including the potential for a right-in turning pocket on Lloyd Street may be considered at the discretion of the MRA subject to the submission of further technical analysis and support from the City of Swan and relevant transport agencies[.]

Issues for determination

1. Prior to the commencement of the hearing, the parties, through their statement of issues, facts and contentions agreed that the issues for determination were as follows:

   Whether bullet points 1, 2 and 4 of condition 3, and bullet point 1 of Condition 4 of the conditions of development approval ought to be imposed in light of the amended plans, having regard to the following:

   (a)whether the following accesses are safe and appropriate:

   (i)The proposed right-in on Lloyd St (bullet point 1 of condition 4), having regard to the ultimate intended function of Lloyd St; and

   (ii)The proposed right-in to the service station south of the Clayton/Cowie St roundabout (bullet point 4 of condition 3;)

   (b)whether the proposed Clayton St/Cowie Cl roundabout ought to be constructed prior to operation of the proposed development and at whose cost (bullet point 1, condition 3); and

   (c)what interim arrangements are required for access from Lloyd St to the proposed development in the absence of the Lloyd St extension being constructed, and who ought to be responsible for the cost of such interim arrangements (bullet point 2, condition 3).

2. A minute of consent, dated 13 May 2019 was filed with the Tribunal which effectively dealt with item (b) above.

3. Further, during the course of the hearing, the issue of interim arrangements, as outlined in item (c), was under continuous discussion and by the time of closing submissions, the parties had reached an agreed position and had filed with the Tribunal a minute of consent in respect of a condition that could be imposed to deal with the interim arrangements.

4. Effectively, this left only two substantive issues to be decided by the Tribunal.  Both issues were contained in item (a) above and are:

   Issue 1:whether a right­in access to the subject site from Lloyd Street should be allowed (bullet point 1 of condition 4); and

   Issue 2:whether a right­in access to the service station south of the Clayton St/Cowie Close should be allowed (bullet point 4 of condition 3).

Planning framework

1. Because the subject site in question is largely under the control of the Authority and they are the approving body at first instance, the planning framework is more nuanced than in many other planning applications. 

2. After a careful review of the parties' statement of issues, facts and contentions, and the witness statements of the expert planning witnesses, the Tribunal is satisfied that the relevant planning framework is as follows:

Metropolitan Redevelopment Authority Act 2011

1. Section 7 of the MRA Act sets out the functions of the Authority in redevelopment areas and states:

   (1)The functions of the Authority are ­

   (a)to plan, undertake, promote and coordinate the development of land in redevelopment areas in the metropolitan region; and

   (b)for that purpose ­

   (i)to prepare and keep under review strategic and policy documents in relation to the development of land in redevelopment areas; and

   (ii)under Part 5, to prepare and keep under review a redevelopment scheme for each redevelopment area; and

   (iii)under Part 6, to control development in each redevelopment area[.]

2. Section 51 of the MRA Act sets out the effect of the approved redevelopment scheme on planning schemes as follows:

   (1)On the scheme start day for land in a redevelopment area, any planning scheme that applies to the land immediately before that day ceases to apply ­

   (a)to that land; and

   (b)to any development of that land commenced on or after that day[.]

3. Section 62(2) of the MRA Act states that:

   A person who undertakes any development on land to which an approved redevelopment scheme applies, or causes any such development to be undertaken, commits an offence unless the development is authorised by a development approval[.]

4. Section 66 of the MRA Act sets out matters to be considered in deciding a development application and requires that the Authority have regard to:

   (a)the approved redevelopment scheme that applies to the land on which the development is proposed;

   (b)the objectives for the redevelopment area in which the development is proposed that are prescribed under section 30(5)(c);

   (c)any submission received from a person notified under section 64;

   (d)the requirements of orderly and proper planning;

   (e)the desired amenity of the redevelopment area in which the development is proposed.

5. Section 69 of the MRA Act provides that an applicant for a development approval may apply to the Tribunal for a review, in accordance with Pt 14 of the Planning and Development Act 2005 (WA) (PD Act) of a decision of the Authority taken to have been made under s 65(2) or s 66 of the MRA Act in respect of the applicant's application.

6. Section 30 of the MRA Act provides powers for the making of regulations which may declare redevelopment areas and provide for related matters and s 30(5) of the MRA Act requires that the regulations must:

   (a)give each redevelopment area a name for the purposes of this Act; and

   (b)if the redevelopment area is described in the regulations by reference to a plan held by the Authority, include for guidance a plan depicting the redevelopment area; and

   (c)prescribe the objectives of the redevelopment area, being matters that ­

   (i)are of importance to the planning and development of the redevelopment area; and

   (ii)must be taken into account in the preparation and approval of a redevelopment scheme for the area and the approval of development in the area.

Metropolitan Redevelopment Authority Regulations 2011 (WA)

1. Regulation 14 of the Metropolitan Redevelopment Authority Regulations 2011 (WA) (Regulations) establishes objectives for redevelopment areas in terms of the provisions of s 30(5)(c) of the MRA Act as follows:

   (a)to build a sense of place by supporting high quality urban design, heritage protection, public art and cultural activities that respond to Perth's environment, climate and lifestyle;

   (b)to promote economic wellbeing by supporting, where appropriate, development that facilitates investment and provides opportunity for local businesses and emerging industries to satisfy market demand;

   (c)to promote urban efficiency through infrastructure and buildings, the mix of land use and facilitating a critical mass of population and employment;

   (d)to enhance connectivity and reduce the need to travel by supporting development aimed at well­designed places that support walking, cycling and public transit;

   (e)to promote social inclusion by encouraging, where appropriate, a diverse range of housing and by supporting community infrastructure and activities and opportunities for visitors and residents to socialise;

   (f)to enhance environmental integrity by encouraging ecologically sustainable design, resource efficiency, recycling, renewable energy and protection of the local ecology.

Midland Redevelopment Scheme No 2

1. The MRS 2 came into effect on 6 April 2016.  It establishes three precincts within the Scheme Area.  The subject site falls within the Clayton Precinct.  The alignment of the future extension of Lloyd Street south of Clayton Street is designated on the Scheme Map as 'Reserved for Future Rail or Road'.

2. Clause 1.7(1) of the MRS 2 deals with compliance with the Scheme and the requirement for development approval as follows:

   (1)Subject to the provisions of the MRA Act and the Regulations, no person shall depart from the requirements and provisions of the Scheme, nor shall any person use or permit the use of any land or building or undertake any development within the Scheme Area which does not comply with the Scheme, without the written consent of the Authority.

3. Clause 1.11 of MRS 2 provides a right of review to the Tribunal of a decision of the Authority.

4. The provisions under MRS 2 dealing with reserves for public purposes are set out in cl 1.13(1) and (4) respectively and state:

   (1)Certain land within the Scheme Area is set aside as reserves for public purposes. Those reserves are delineated, identified and described as such on the Scheme Map.

   …

   (4)In dealing with a development application relating to land reserved under this Scheme, the Authority is to have due regard to the ultimate purpose intended for the reserve.

5. Clause 2.3 of MRS 2 sets out the Scheme Objectives which include the following:

   …

   2.3.3Urban Efficiency

   To promote urban efficiency through infrastructure and buildings, the mix of land use and facilitating a critical mass of population and employment.

   2.3.4 Connectivity

   To enhance connectivity and reduce the need to travel by car, supporting development aimed at well­designed places that support walking, cycling and public transit[.]

6. Clause 3.3.1 of MRS 2 establishes the following intent for the Clayton Precinct:

   The Clayton Precinct has effective access to regional roads including the future extension of Lloyd Street to the Great Eastern Highway bypass.  The Clayton Precinct is envisaged as a high employment generator with large format retail development taking advantage of the access to regional roads while ensuring a safe urban environment for pedestrians and workers.

7. Clause 4.1 and cl 4.2 of MRS 2 provide that the Authority may prepare and adopt Development Policies and Design Guidelines and cl 4.7 requires that all development is to generally comply with Development Policies and Design Guidelines.

8. Clause 4.8 of MRS 2 establishes that, while a Development Policy or Design Guideline shall not bind the Authority, the Authority shall have due regard to the provisions of relevant Development Policies and Design Guidelines.

9. Clause 5.5 of MRS 2 states that development approval is required from the Authority for any development on land within the Scheme Area.

10. Finally, cl 5.17 of MRS 2 sets out key matters for which the Authority shall have due regard in the determination of any application made under the Scheme in the following terms:

    a)the Scheme Vision and Objectives and the achievement of sustainable development;

    b)any currently valid decision on an In-Principle Development Application or a Structure Plan Application;

    c)all other relevant provisions of the Scheme;

    d)any relevant planning document adopted under the Scheme, including but not limited to a Design Guideline, Local Development Plan, Development Policy, Heritage Inventory, or Development Contribution Plan;

    e)any submission received as a result of a referral to government bodies or public consultation, in accordance with clauses 5.13 and 5.14;

    f)any specialised advice obtained under clause 5.15;

    g)the requirements of orderly and proper planning; and

    h)the current and intended amenity of the locality

1. In March 2016, the Minister for Planning declared Planning Control Area 121 (PCA) over land between Great Eastern Highway and Great Eastern Highway Bypass ­ Lloyd Street Southern Extension.

2. The purpose of the PCA is to protect the Lloyd Street Southern Extension alignment which is intended to be a Future Other Regional Road (ORR).  The PCA is to ensure that no development occurs on this land until it may be reserved for Other Regional Roads in the Metropolitan Region Scheme.

3. In respect of the matters outlined above it is noted that the Authority has adopted the Midland Redevelopment Area Design Guidelines (Midland Design Guidelines) and the Western Australian Planning Commission (WAPC) has adopted Development Control Policy 5.1 ­ Regional Roads (vehicular access) (DCP 5.1).

4. During the course of the hearing, a number of policies, guidelines and a master plan were referred to and commented on by the witnesses.  While it is noted that such documents are not statutory provisions, the documents referred to were as follows.

Midland Master Plan

1. The Master Plan was published by the Authority in May 2015.  It is a strategic and aspirational document intended to guide the Authority in preparation of the new scheme and design guidelines.

2. While both the 'Precinct Plan' and the 'Proposed Maximum Building Height Plan' indicate no access to the subject site from Lloyd Street, the Master Plan, at pages 5 and 18, suggest a left­in/left­out access point from Lloyd Street towards the south­west section of the subject site.

Midland Design Guidelines

1. The Design Guidelines were adopted by the Authority in April 2016.  The objectives for the Clayton Precinct are set out in cl 5.1.2 of the Design Guidelines and include the following statement in regard to Lloyd Street:

   Lloyd Street will provide regional connections to Abernethy Road and the Great Eastern Highway Bypass.  The development interface will provide an attractive, landscaped edge that improves visual qualities of the area.

2. The Design Guidelines at cl 2.4 deal with the Site Access in the following terms:

   DESIGN INTENT

   The number and visual impact of vehicle access points to sites will be minimised to reduce the potential conflict between pedestrians and vehicles and avoid inactive areas within a street.

   OBJECTIVE

   Prioritise safe and accessible pedestrian movement and vehicle access points that do not dominate or detract from the streetscape.

   ACCEPTABLE DEVELOPMENT CRITERIA

   Pedestrian Access

   •    Pedestrian access from the street and from any car park areas shall be clear, direct and safe.  All pedestrian entrances shall have casual surveillance from within the development and shall be covered to provide protection from the elements.

   •    Clear wayfinding devices are provided throughout the development with particular consideration of the needs of visitors and those with disabilities and mobility impairments.

   Vehicle Access

   •    Only one vehicle access point is permitted for each lot with crossovers located as indicated by the applicable precinct/site specific guideline to a maximum width of 6m.

   •    Vehicle access via a primary street shall only be permitted where no secondary street, laneway or vehicular access easement is available.

   •    Where access is available from side or rear streets or from rights of way, no access shall be permitted to a regional road unless special circumstances apply.

   •    Where possible vehicle access should be shared between adjacent lots to improve efficiency of site utilisation and reduce the impact of crossovers on the streetscape.

   Note:  Primary street is defined as being the street with the highest assumed pedestrian movement or as otherwise agreed with the Authority.

3. Clause 1.6 of the Design Guidelines provides the opportunity for the applicant(s) to meet the Objective through an alternative solution and the Authority may approve a development application where the applicant(s) has departed from the recommended Acceptable Development Criteria where in the Authority's opinion, the applicant(s) has demonstrated that the alternative solution(s) is consistent with the Scheme and meets the Design Guideline Objective(s).

4. It should be noted that Figure 5.11 in the Design Guidelines, which identifies preferred access locations for the subject site in these proceedings, does not identify any access locations from Lloyd Street and suggests access should be taken from the indicative new link road.

Development Control Policy 5.1

1. DCP 5.1 defines a 'regional road' as follows:

   'Regional Road' means any road reserved under the Metropolitan Region Scheme or under any other regional planning scheme as well as any other road classified as primary or district distributors in accordance with the Commission's Policy No. DC 1.4 Functional Road Classification for Planning.

2. Clause 2 of DCP 5.1 sets out the policy objectives as follows:

   •To outline planning principles to be applied in the determination of proposals for vehicle access to regional roads.

   •To ensure that vehicle access to regional roads and the type of abutting developments is controlled and conforms with sound town planning principles.

   •To improve traffic flow and safety on all regional roads, either new or existing, by minimising the number of junctions or driveways.

3. Clause 3 of DCP 5.1 sets out policy measures which include the following provisions:

   3.1Safety

   3.1.1A safe environment and an efficient road system require compatibility between development abutting the road and vehicular and pedestrian traffic movement.  As regional roads are principally for traffic movement, ideally there should be no vehicular access to or from abutting properties.

   …

   3.1.4In summary, the capacity of regional roads to carry traffic, the safety of that traffic, and the free flow of traffic are all related to access - the fewer the number of driveways and junctions, the smoother the traffic flow and safer the road.

   3.2Function

   3.2.1The functional classification of roads and streets is an essential first stage in the establishment of a network which can satisfy the requirements of both traffic movement and development. There is no universally recognised standard defining different types of roads.  The Commission has, therefore, adopted the road classification system outlined in Policy No. DC 1.4, 'Functional Road Classification for Planning', namely primary distributors, district distributors, local distributors and access roads.

   3.2.2The access control requirements of this policy apply to Primary and District Distributors, which includes all categories of regional roads designated in the Metropolitan Region Scheme and in areas subject to other regional planning schemes. However, many District Distributors are not classified in a scheme and control of development on these roads according to this policy is the responsibility of local governments.

   3.3Development Requirements

   3.3.1In considering applications for access on regional roads, the effects of the proposals on traffic flow and road safety will be the primary consideration.  The more important the regional road, the greater the importance attached to these factors. In general, the Commission will seek to minimise the creation of new driveways on regional roads and rationalise existing access arrangements.

   3.3.2Where regional roads are constructed or planned to freeway standards, no access to frontage development is permitted.  On regional roads not constructed or planned to freeway standards, there is a general presumption on traffic and safety grounds against the creation of new driveways or increased use of existing accesses to these roads.  Where alternative access is or could be made available from side or rear streets or from rights of way, no access shall be permitted to the regional road unless special circumstances apply.

   …

   3.3.4The types of development that would be allowed access to a regional road include large traffic generators such as major shopping, recreation or community centres.  These would justify either a local distributor or access road, leading from a junction with the regional road to car parks servicing the centre.

   3.3.5In determining applications for development involving the formation, laying out or alteration of a means of access to regional roads, the following must be considered:

   i)the effects of the development on traffic flow and safety, the character and function of the road, the volume and speed of traffic, the width of the carriageway and visibility; and

   ii)the volume and type of traffic generated by the development[.]

Issue 1 ­ whether a right­in access to the subject site from Lloyd Street should be allowed

Contentions

1. The parties' statements of issues, facts and contentions showed a clear divergence between the parties as to whether the right­in access to the subject site from Lloyd Street should be approved and this divergence continued through the giving of evidence and into the parties' final submissions

Respondent's opening position

1. As per the normal course with review matters in the Tribunal, the respondent filed its statement of issues, facts and contentions first and at para 64 stated:

   The provision of the right­in on Lloyd Street ought not to be approved as appropriate and safe right­in access is achieved to the site via the roundabout on Lloyd Street and the public link road.  The additional proposed right­in access is therefore redundant.  Controlled intersections such as the proposed roundabouts ought to be used.

Applicant's opening position

1. The applicant in its statement of issues, facts and contentions in reply at para 45 stated:

   The applicant rejects paragraph 64 of the Respondent's SIFC and says:

   45.1the proposed right­in access on Lloyd Street should be supported by the Tribunal;

   45.2access to the subject land from the proposed roundabout on Lloyd Street via the public link road is not itself adequate, either in a practical sense or in a commercial sense; and

   45.3the proposed right­in access from Lloyd Street is necessary for the Applicant and is not redundant (if this were not the case, then the Applicant would not be agitating this point in this application for review).

Applicant's position on closing

1. Following the completion of evidence over many days of hearing (details of which are outlined later in these reasons) counsel for the applicant commented in respect of the planning evidence as follows:

   … the concern from a planning perspective is primarily about the impact of introducing another cross-over into the public realm of Lloyd Street and whether that was an appropriate planning outcome[.]

   (ts 8, 11 June 2019)

2. And later stated:

   … Therefore … our primary position on planning … there's no planning reason to oppose the right turn movement.  Therefore, the attention must turn, with respect, to traffic and safety issues[.]

   (ts 10, 11 June 2019)

3. In commenting on traffic and safety issues, counsel for the applicant referred to para 9 of the Joint Statement of Traffic Experts and stated:

   … And there was a lot of discussion about the second paragraph on page 9 of the joint statement.  Ultimately, our submission is that the experts collectively ­ more importantly those that have done the [SIDRA] analysis came to a position where the proposed right turn does not have any site specific road safety issues and would not be any less safe than similar intersections elsewhere on the Distributor A road[.]

   (ts 12, 11 June 2019)

4. Counsel for the applicant also submitted that significant weight should be given to the opinion of Mr Jois, the author of the Road Safety Audit before the Tribunal.

Respondent's position on closing

1. In contrast, counsel for the respondent on closing stated:

   …

   I wish to first deal with how this movement is or isn't contemplated in the planning framework.  And we will be submitting that [the] planning framework in totality does not support or contemplate a right turn movement in this location[.] 

   (ts 19, 11 June 2019)

2. In respect of the traffic evidence, counsel for the respondent submitted:

   … the key point from the respondent's perspective is whether the introduction of a single new conflict point is justified based on an alternate access being available and the higher volumes of forecast traffic[. ]

   (ts 25, 11 June 2019)

Evidence

1. Two planning experts were called to give evidence, Mr Rowe on behalf of the applicant and Mr Jack on behalf of the respondent.

2. The Tribunal found both planners to be as you would expect, frank and honest in respect of their opinions.

3. The Tribunal notes that on a number of occasions during the hearing, and in particular, in closing, counsel for the applicant cautioned the Tribunal in respect of the weight it should attach to Mr Jack's evidence due to the fact that he was an employee of the respondent and had been involved in the planning process through various stages.  Counsel stated:

   … the tribunal needs to be cautious about accepting evidence of a person that on the one hand is a reporting officer. 

   A person who instructs and engages experts on behalf of a decision maker, and then on the other hand is purportedly giving independent evidence on behalf of the decision maker. 

   (ts 9, 11 June 2019)

4. However, counsel went on to state:

   … I'm not saying that to challenge the credibility or the integrity of the person[.]

   And I know Mr Jack gave his evidence to the best of his ability and he seemed to me to be fair, honestly.  Yet, the perception is the problem and I think to any extent ­ it's a matter for you ­ but from our perspective to a large extent need to discount some of the evidence as a consequence of that perception of conflict[.]

   (ts 10, 11 June 2019)

5. The Tribunal found Mr Jack to be credible and honest and although the applicant raised the issue about Mr Jack's 'lack of independence' it did not submit Mr Jack's views were in anyway biased or dishonest.

6. The Tribunal carefully examined Mr Jack's evidence and is, in all the circumstances, satisfied to accept it on the same basis as it accepts Mr Rowe's evidence.  Both Mr Rowe and Mr Jack filed detailed witness statements which were accepted as their evidence­in­chief.

7. Both also gave oral evidence and the Tribunal found them to be excellent, forthright and honest planning witnesses who assisted the Tribunal and gave their expert planning opinions candidly and the Tribunal therefore sees no reason to discount the weight given to Mr Jack's evidence in any way.

8. In respect of traffic evidence, there were eight witnesses, seven of whom had attended a joint conferral and produced a very helpful joint witness statement in respect of the matters to which they had agreed and disagreed.  The eighth witness was Mr Jois who had completed a safety audit on the proposed right­in access but had not attended the joint conferral of experts.

Consideration of Issue 1 by the Tribunal

1. It was clear from the evidence before the Tribunal that the right turn on Lloyd Street, allowing traffic from the south to enter the subject site mid­block between Clayton Street to the north and the yet to be developed public link road to the south, was an issue on which the parties clearly disagreed.

2. Mr Rowe and Mr Jack dealt with the matter in some detail as did all of the traffic experts.

3. Mr Rowe helpfully outlined the various planning instruments relevant to the matter and at paras 45 and 46 of his witness statement outlined how the issue was dealt with in the original Master Plan for the subject site stating:

   The Master Plan … identifies the Review Site as 'Showroom, Commercial and Enterprise Employment Uses'.  The Master Plan does show a median for the majority of Lloyd Street, south of Clayton Street, which would restrict any right-turn traffic movements into the Review Site from Lloyd Street. No right-turn traffic movements into the Review Site from Lloyd Street are shown on the Master Plan.  Whether this is intentional, is uncertain as site access is not an element discussed in the Master Plan.

   In respect to Lloyd Street, the Master Plan states:

   Lloyd Street will provide regional connections to Abernethy Road and the Great Eastern Highway Bypass.  The development interface should provide an attractive, landscaped edge that improves visual qualities of the area.

4. At para 52 of his witness statement, Mr Rowe confirmed that the extension of Lloyd Street south of the Midland Redevelopment Area is subject to a Planning Control Area (Planning Control Area 121).

5. Planning Control Area 121 was gazetted in March 2016 and is valid for five years and at para 63 Mr Rowe set out its 'Purpose' as:

   63.The purpose of the PCA is to protect the Lloyd Street southern extension alignment, which is intended to be a future Other Regional Road (ORR).  The extension is considered vital to the appropriate development of the Midland Town Centre and to provide southern access to the new Midland Health Campus and Midland Redevelopment Authority area.  The WAPC considers that the planning control area is required over the whole alignment to ensure that no development occurs on this land which might prejudice this purpose until it may be reserved for Other Regional Roads in the Metropolitan Region Scheme.

6. At para 65 Mr Rowe further stated:

   65.Whilst it may be the intention that the southern extension of Lloyd Street road reserve abutting the Review Site is ultimately reserved as an 'Other Regional Road' under the Metropolitan Region Scheme, no amendment to the MRA Regulations and the MRS No. 2 has been commenced to date to alter the entire or portion of the Midland Redevelopment Area to remove any part of the Midland Redevelopment Area from the MRS No. 2 and MRA Regulations.  It is my opinion that until such a time such an amendment (as described above) is finalised, then the Respondent is not bound to have due regard to DCP 5.1.

7. At paras 67, 68 and 69 of his witness statement, Mr Rowe stated:

   67.If the Lloyd Street southern extension (subject to Planning Control Area No. 121) is, as the Western Australian Planning Commission states its intention to be reserved 'Other Regional Roads' under the Metropolitan Region Scheme, then it is my opinion when the Redevelopment Scheme ceases to have effect it is likely the section of Lloyd Street road reserve currently located within the Midland Redevelopment Area will be reserved 'Other Regional Roads' to be consistent with the current reservation of the Lloyd Street reserve immediately north of the Midland Redevelopment Area and the likely reservation of the Lloyd Street southern extension contemplated by the Western Australian Planning Commission as indicated in Planning Control Area No. 121.

   68.… if it is considered DCP 5.1 is relevant to this development application, my review of DCP 5.1 leads me to the opinion that the principal considerations of this policy are to maintain safety and satisfactory traffic flow.

   69.This Review is not asking the Tribunal to consider whether access to or from this section of Lloyd Street (abutting the Review Site) is acceptable or not.  A left-in/left-out access has been approved by the Respondent. … This Review is only examining a further right­in only access from the south[.]

8. Turning then to DCP 5.1. Section 241 of the PD Act requires the Tribunal to have due regard to any State planning policy which may affect the subject matter of the application and State Planning Policy 1 (SPP 1) sets out the relevant policies which include operational policies.

9. DCP 5.1 is such an operational policy which as outlined earlier, defines a 'Regional Road' to mean:

   'Regional Road' means any road reserved under the Metropolitan Region Scheme or under any other regional planning scheme as well as any other road classified as primary or district distributors in accordance with the Commission's Policy No. DC 1.4 Functional Road Classification for Planning.

10. Under the heading 'Development Control Policy No 5.1 Regional Roads' Mr Rowe at para 51 of his witness statement stated:

    A portion of the Lloyd Street road reserve is located within the Midland Redevelopment Area.  The MRS No. 2 does not reserve the Lloyd Street Road Reserve as a regional road (i.e. Primary Regional Road or Other Regional Road) and, therefore, the provisions of DCP 5.1 would not apply[.]

1. At para 53 Mr Rowe stated:

   On review of the MRA Act, MRA Regulations, the MRS No 2 and the Design Guidelines, I am of the view there is nothing in this framework that would require the Respondent to assess the proposal against a Development Control Policy, in particular DCP 5.1.

2. However, at para 54 Mr Rowe acknowledged:

   I acknowledge that Clause 5.17(1)(g) of the MRS No 2 requires the Respondent to have due regard for the requirements of orderly and proper planning.  It is my view the Respondent may, in order to satisfy the requirements of orderly and proper planning, take into consideration the provisions of DCP 5.1, if the provisions of DCP 5.1 are considered relevant to the proposal.

3. Keeping in mind the background just outlined, the relevance of DCP 5.1 to this application was then raised with the planning experts during the hearing and the following exchange took place between counsel for the respondent and Mr Jack:

   …

   COUNSEL:Do you accept then that ultimately the question is not a planning question, but a road safety audit question, because, from a planning point of view, there's nothing to preclude this movement being accepted is there?

   WITNESS, JACK:       No, I don't accept that.  I think ­ I think it's clear through our master planning process it is a planning issue.  There was a clear, logical road alignment and road hierarchy anticipated for this particular area that will ensure that the Midland town centre and the wider area could function effectively.  Part of that was the development of this particular site would be serviced in terms of the access through two controlled intersections, one being a roundabout on Lloyd Street and one being the Lloyd Street, Clayton intersection, and that there would be a public link road that would disperse traffic from an intersection that was already under a lot of pressure.

   So to introduce a uncontrolled right through movement that was not planned for it is ­ is a planning issue[.]

   (ts 128, 15 May 2019)

4. Later, counsel for the respondent put to Mr Jack

   …

   COUNSEL:Mr Rowe makes the point, doesn't he, that DC policy 5.1 has very limited application here, because of the status of the road as a Distributor A road?

   WITNESS, JACK:       Well, he has made the point there's a question of whether or not we can have regard to DC 5.1.  I think he has also acknowledged that our planning framework gives us the ability to have regard to a ­ a range of issues in terms of orderly and proper planning, and I accept that and that is ­ that is correct.  We're not bound by state planning policies, but we are absolutely open to having regard to those.  In this instance, it is appropriate that we consider ­ particularly given it's brought up by the transport experts, who have been asked to provide comment on what's proposed.

   COUNSEL:But do you accept that DC 5.1 has a limited role to play here?

   WITNESS, JACK:       No.

   COUNSEL:You don't accept that?

   WITNESS, JACK:       I believe it's appropriate and applicable here[.]

   (ts 130, 15 May 2019)

5. Counsel for the respondent then invited Mr Rowe to respond to Mr Jack's comments.  Mr Rowe stated:

   WITNESS, ROWE:      My evidence is that through the framework, DC 5.1 doesn't apply automatically, because the road that we're talking about isn't any of the roads referred or contemplated under DC 5.1.  The ­ the material at DC 5.1 deals with and its application on regional roads does have some element of consideration here.  I accept Mr Jack's opinion, that I've heard today that, at some point, there's a contemplation that all of Lloyd Street that we talked about will become a regional road.

   At that point, there's if it occurs, 5.1 would apply.  How 5.1 is used in the interim is a matter for ­ a discretionary matter for the determining authority.  I agree with Mr Jack that it's open to the MRA, as the determining authority, and, in this instance, to the tribunal to have regard to any document that it thinks is relevant.  It's a question of how relevant and how much emphasis is placed on it.

   (ts 130 ­ 131, 15 May 2019)

6. The Tribunal accepts the position is, as Mr Rowe outlined in that exchange, that DCP 5.1 is not currently directly applicable to the portion of Lloyd Street under consideration but it is a policy to which the Tribunal may have due regard.

7. The respondent, at para 41 of its statement of issues and contentions confirmed that it had received the application for approval from the applicant on 27 September 2017 and at paras 42 ­ 46 stated:

   42.In accordance with Section 64 of the MRA Act, the Respondent referred the proposal to the City, DPLH, Department of Biodiversity, Conservation and Attractions (DBCA), Department of Water and Environmental Regulation (DWER), Department of Transport (DoT) and the Public Transport Authority for comment (PTA).

   43.The City advised that it had no objection to the proposal subject to the following conditions:

   a)Modify the development plans in the following manner:

   b)Deletion of Left in Left Out access onto Lloyd Street in the interest of rationalising access points off Lloyd Street[.]

   …

   45.DPLH Infrastructure and Land Use Coordination (ILUC) team advised on 14 December 2017 it did not support direct access to Lloyd Street in accordance with the Commissions Regional Road's (vehicular Access) Policy DC 5.1, which seeks to limit new crossovers onto regional roads.  With respect to the specific access proposed to Lloyd Street:

   •Left in only from Lloyd Street - ILUC does not support this access point

   •Left in/Left out/Right in - ILUC does not support this access as proposed.  While the application argues that the right-in facilitates inbound traffic travelling north [on] Lloyd Street, this traffic can be accommodated by the roundabout (at the intersection of the Link Road and Lloyd Street).

   •Roundabout (at the intersection of the Link Road and Lloyd Street) ­ ILUC supports this access point as it is consistent with the Master Plan.

   •The roundabout leg to the developments internal road network is an agreed access arrangement which should be capitalised on, particularly given that right turns in from Lloyd Street are not supported by ILUC or the City[.]

   46.DPLH Infrastructure and Land Use Coordination (ILUC) team provided further advice on 1 March 2018 in relation to amended plans which proposed a single left in/1eft out crossover to Lloyd Street sent by MRA referral on 23 February 2018, as follows:

   'The internal road network should be redesigned so northbound vehicles on Lloyd Street can use the roundabout and Link Road to access the development. This may require a redesign of the Runnings site in order to provide a through-road'.

8. Then in para 50, in explaining how it arrived at what was finally approved, the respondent stated:

   Notwithstanding stakeholder feedback, a mid­block left-in/left­out access is identified in the MRA's Midland Master Plan, and as such the retention of a left­in/left­out only access was considered to be a reasonable outcome, particularly given the applicant's Traffic Impact Assessment ­ Cardno (22 February 2018) (TIA) which identifies Access 2 primarily for 'separation of heavy vehicles (service vehicles accessing the development, PTA buses and potentially large trucks from the adjacent brickworks) from light vehicles and pedestrians'. A condition to this effect was recommended.

9. Later, under the heading 'Contentions', the respondent in commenting on the applicant's application to include a right­in on Lloyd Street stated at para 65:

   … the proposed right­in conflicts with the significant through traffic anticipated on Lloyd Street in the future.  The greater the amount of right­in turns on a high volume road, the greater the safety issues that arise from the turning environment.  The functionality of Lloyd Street is paramount for the functionality and connectivity of the Midland Town Centre.  Approval of the proposed right in would also be inconsistent with DC 5.1.

10. In its statement of issues, facts and contentions in reply, the applicant directly responded to the respondent's para 65 just outlined and stated at para 46:

    46The Applicant rejects paragraph 65 of the Respondent's SIFC and says:

    46.1the proposed right-in access from Lloyd Street will not conflict with through traffic on Lloyd Street;

    46.2there is no basis for the proposition from the Respondent that increasing the amount of right­in turns on a road will necessarily make the road less safe;

    46.3the relevant stretch of Lloyd Street will be unique, in the sense that there will be a short space between a roundabout and traffic lights, which means regardless of whether the proposed right-in access is approved, traffic is unlikely to be moving particularly fast along this portion of road;

    46.4the proposed right-in access from Lloyd Street would be acceptable from a safety perspective;

    46.5the proposed right­in access from Lloyd Street is appropriate and should be supported by reference to DC5.1 (bearing in mind that DC5.1 would only apply if Lloyd Street is reserved for 'other regional roads' under the MRS in the future);

    46.6properly construed, DC5.1 is concerned with whether new crossovers should be supported and not with whether an already approved crossover may be modified (the Respondent has already approved the crossover in question, but has conditioned it to prohibit right turns in); and

    46.7although the Applicant maintains no issues of functionality would arise in any event, it cannot reasonably be said that the functionality of Lloyd Street is 'paramount for the functionality and connectivity of the Midland Town Centre', in the sense that the Midland Town Centre already functions despite the fact the Lloyd Street extension does not yet exist.

11. The applicant's traffic experts were of the view that the proposed right turn should be allowed as it could be made as safe as any other right turn on similar roads.

12. Mr Benham Bordbar, one of the respondent's traffic experts, at para 4.2 of his witness statement clarified the classification of the part of Lloyd Street under consideration stating:

    Lloyd Street currently terminates at Coppershop Road, adjacent to the Property, but it is planned to be extended southwards across Helena River to connect to the Great Eastern Highway Bypass. … this section of Lloyd Street is planned to be included as an Other Regional Roads (ORR) Reservation in the Metropolitan Region Scheme (MRS) in future and will be classified as a District Distributor (A) in the Main Roads WA Functional road hierarchy.

13. At para 5.1 of his witness statement, Mr Bordbar confirmed the Main Roads WA traffic projections provided for Lloyd Street south of Clayton Street as being 24,600 vehicles per day (vpd) in 2031 and 27,300 vpd in 2051.

14. Seven of the traffic experts who gave evidence had taken part in the previously referred to expert conferral and produced a particularly helpful Joint Report.

15. In closing counsel for the applicant referred to the third paragraph on page 9 of the Joint Report where all experts were in agreement as to the safety of the proposed right turn, but clearly disagreed as to whether it should be approved.

16. That paragraph stated:

    All experts agreed that the proposed right turn does not have any site­specific road safety issues and would not be any less safe than any similar intersection elsewhere on a District Distributor A road in the metropolitan area.  The Applicant's and Respondent's experts disagree over whether the introduction of a single new conflict point to Lloyd St is justified based on alternative access being available and the high volumes of forecast traffic.

17. As explained earlier, Mr Jois, who undertook a safety audit on behalf of the applicant which stated that the proposed intersection could operate safely, did not take part in the joint conferral.

18. Mr Lindsay Broadhurst, one of the traffic experts called by the respondent, is the Director of Road Planning and Development from Main Roads and at paras 22 to 28 of his witness statement, dealt with what he described as the applicant's justification for the right­in turn, set out para 46 of the applicant's SIFC (see [87] above) and at para 23 of his witness statement stated:

    [T]he proposed right­in access from Lloyd Street will be in direct conflict with through regional traffic heading southbound on Lloyd Street.

19. And at paras 26 and 27 stated:

    [T]here will be two alternative controlled intersections to access the site from Lloyd Street for traffic travelling from the south, namely the proposed roundabout to the link road, and the Lloyd Street / Clayton Street signalised intersection;

    [T]he proposed right­in access is not necessary given that two other closely spaced intersections are available to access the site[.]

20. In a final paragraph at para 30, Mr Broadhurst stated:

    The site has a frontage of approximately 320m along Lloyd Street and there is an existing signalised intersection at the northern end of the site and a proposed roundabout at the southern end.  This will provide excellent access to the site and with these two controlled intersections there is no need for any additional right­in access to the site for traffic heading northbound along Lloyd Street.

21. Those issues, as outlined by Mr Broadhurst effectively encompassed the respondent's traffic expert's objections to the right­in turn being approved.

22. Both Mr MacNish and Ms Griffiths, who are both employed by the City of Swan, the body that is, in fact, due to construct the portion of Lloyd Street under consideration, were also called as traffic experts by the respondent. 

23. Ms Griffiths, at para 8 of her witness statement outlined the City of Swan's position stating:

    Right in movements to the site from Lloyd Street were expected to be from the roundabout to be constructed at the intersection of the proposed link road and Lloyd Street.

24. A significant amount of time during the hearing was taken up with discussion about what could best be described as a separated as against an integrated intersection.  Without going into significant detail, the plan that is currently before the Tribunal, and for which approval is sought, is what was referred to as 'a separated intersection', meaning that the traffic entering the subject site via the proposed right turn off Lloyd Street, would enter via a crossover that was approximately 20 metres to the south and separated from the crossover for traffic exiting the subject site and intending to travel south on to Lloyd Street.

25. All of the experts agreed that if it were possible for an integrated intersection to be constructed, meaning that the traffic entering and leaving the subject site at that point would use the same crossover (although there were a number of unknowns in respect of that issue), that option would be preferable.

26. However, the principal question for the Tribunal is whether, in all of the circumstances and based on all of the evidence before it in this proceeding, a right-in turn on Lloyd Street should be allowed at all.  Depending on the Tribunal's answer to that question, commentary can then be made, if necessary, on the relative merits of a separated intersection versus an integrated intersection.

27. The Tribunal is satisfied based on the evidence of the traffic experts as agreed in the joint report that from a traffic perspective if a right turn as proposed was allowed, it could be constructed in a way to be as safe as other similar right turn intersections on a District Distributor A road. 

28. However, as outlined above, the respondent's principal reason for objecting to the right turn, is that from a planning perspective it introduces an additional and in their view unnecessary conflict point which was never contemplated in the planning framework.

29. In their closing submissions, the applicant stated that:

    The overall planning framework, in our submission, suggests that there should be an attempt to minimise the number of crossovers.  Not to prevent them altogether.

30. However, as Mr Rowe explained the left­in/left­out crossover on Lloyd Street is already approved and so the respondent has not sought to prevent crossovers.  The only part of the crossover the respondent objects to is the addition of a right­in turn for traffic from the south.

31. As explained by Mr Rowe at para 46 of his witness statement when addressing the Master Plan:

    The Master Plan does show a median for the majority of Lloyd Street, south of Clayton Street, which would restrict any right-turn traffic movements into the Review Site from Lloyd Street.  No right-turn traffic movements into the Review Site from Lloyd Street are shown on the Master Plan.

32. In reference to DCP 5.1, while the Tribunal accepts the evidence of Mr Rowe that as the MRS 2 does not currently reserve Lloyd Street as a regional road, a question arises as to the application of the policy.  However, given the clear intention of the PCA to reserved Lloyd Street as an Other Regional Road as recognised by Mr Bordbar (see [89] above), the Tribunal is of the view that DCP 5.1 should be given due regard in terms of orderly and proper planning under cl 5.17(g) of MRS 2.  This reflects the position taken by Mr Jack (see [81] above) and conceded by Mr Rowe (see [82] above).

33. A further matter that was covered was whether from a planning perspective it was better to have a right turn as proposed in light of the issues of legibility and road function/operation.

34. Mr Rowe argued that the proposed right­in turn would assist in respect of the legibility of entering the subject site's carpark from the south, however other witnesses explained that legibility of the subject site for traffic coming from the south could be adequately addressed by way of well­designed and well­positioned signage leading to the roundabout at the Public Link Road and on the site itself.

35. In respect of road function/operation, the view of Mr Laybutt and Mr Bordbar, the applicant's experts, was set out in the last para on page 6 of the Joint Report where it stated:

    SL [Sam Laybutt] said that without the right turn being permitted into the development off Lloyd St the approximately 250 peak hour trips would detour via Clayton St and add to the operational failure forecast for both Lloyd St/Clayton St traffic signals and Clayton St/PLR roundabout.  SL said that the right turn would provide relief to the external road network, particularly the Lloyd St intersections, and overall would be a net benefit operationally.  BB [Behnam Bordbar] agreed with this view.

36. On the other hand the next paragraph of the Joint Report set out the respondent's experts views stating:

    All of the respondent's experts disagreed with this summary as they forecast the logical route without the right requested right turn would be for traffic to turn right at the Lloyd Street/PLO roundabout which has adequate capacity for this level of demand.  This would be a much shorter and quicker route than that assumed by the applicant's experts.

37. The traffic experts all agreed that controlled intersections, such as those with traffic lights like the Clayton Street/Lloyd Street intersection has, or with roundabouts which the Public Link Road and Lloyd Street intersection will have, were superior outcomes for traffic management and safety than uncontrolled intersections such as the one proposed.

38. It is noted that the right­in turn, if supported, would not be the only access to the subject site off Lloyd Street for traffic coming from the south as access has always been proposed and planned by way of the roundabout at the Public Link Road a short distance to the south of the proposed right­in turn. 

39. The issue of internal access roads was also raised with the planning experts and Mr Rowe in questions from counsel stated:

    WITNESS, ROWE:  … the internal access roads, and their connection to the perimeter roads fulfil many of the functions of an access road.

    …

    WITNESS, ROWE:  So I'm comfortable to answer your question on the basis that we do have a connection of access roads.  They are not dedicated public roads but, given the size of this site and the multiple uses internal to it, it has many of the functions of a commercial subdivision in terms of internal road network.  So the access road criteria I think is satisfied in that regard.

    COUNSEL:  So if I'm to understand you correctly, you would see the internal road through the car parking on the plan operating like an access road …

    WITNESS, ROWE:  They will fulfil many of the functions of what is typically described as an access road.

    (ts 143, 15 May 2019)

1. As for traffic from the north, because of left­in/left­out access already approved on Lloyd Street, that traffic will have direct access into the subject site off Lloyd Street and traffic will be able to depart the site towards the south through the left out onto Lloyd Street.  It is only traffic coming from the south that the proposed right turn will benefit. 

2. Keeping all of the above in mind, from an orderly and proper planning perspective there are in the Tribunal's view a number of important factors to consider in coming to a decision.

3. The Tribunal does not accept the contention put by counsel for the applicant to Mr Jack in cross­examination 'that ultimately the question is not a planning issue, but a road safety audit question'.

4. Furthermore, the applicant's contention that access to the subject site from the roundabout on Lloyd Street via the public link road 'is not adequate in a practical sense or in a commercial sense' and is 'necessary for the applicant' does not, in the Tribunal's view, depose of the 'planning issue'.

5. The responsibility of the Tribunal in dealing with the matters before it is to identify the issues which warrant consideration and it will then be a question of fact to be determined having regard to the circumstances of the case.

6. As the Supreme Court found in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [181] ­ [182]:

   However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision.  The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case

   While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one.  If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.  A broad range of considerations may be relevant in that context.

7. In regard to the 'planning issue' in the present case, the clear evidence before the Tribunal is that a significant amount of strategic planning has gone into the provision of access to the subject site, none of which envisaged a right­in turn on Lloyd Street as proposed by the applicant.

8. The strategic planning documents clearly identified that access from Lloyd Street was to be limited to left­in left­out only and in addition access was intended to be provided from the public link road.

9. The strategic planning framework for access to the subject site, established by the Master Plan and Design Guidelines had been in place for some considerable time and well before the applicant purchased the site and executed the Project Development Agreemnt.

10. As stated in Marshall, in applying the principles of orderly and proper planning the Tribunal should not lightly depart from the planning principles identified as relevant to an application without the demonstration of a sound basis for doing so and in these proceedings the strategic planning framework set out in the Master Plan and Design Guidelines constitute relevant planning principles to be applied in this matter.

11. While these principles are not necessarily determinative, the Tribunal finds that the duly adopted strategic planning provisions for the subject site are to be given weight in the considerations before the Tribunal in this proceeding.

12. The Tribunal accepts the evidence of Mr Rowe that, based on the current plan before the Tribunal, the proposed right­in turn would assist in respect of the legibility of entering the car park of the subject site. However, while this is a matter to be considered by the Tribunal in weighing up all of the evidence before it is not determinative of the issues before the Tribunal in this proceeding.

13. The Tribunal does not accept Mr Rowe's contention that the proposed right­in turn would fall within the ambit of cl 3.3.4 of DCP 5.1 which is clearly limited to a 'local distributor' or 'access road'.  The proposed right­in turn into the carpark is neither and simply provides direct access to a private carpark, while the Tribunal acknowledges the respondent has already approved the left­in/left­out.

14. In the Tribunal's view, the applicant has not substantiated a sound basis for departure from the principles outlined above and the Tribunal is not satisfied that, in terms of the 'planning issue', that the proposed right­in turn merits support.

15. In regard to the 'road safety' question the Tribunal does not accept the submission of the applicant that 'significant' weight should be given to the road safety audit of Mr Jois.

16. The brief provided to Mr Jois was limited to carrying out a safety audit of the proposed right­in access from Lloyd Street for vehicles travelling north and in doing so he made a number of recommendations.

17. The other traffic experts, all of whom had taken part in a joint conferral, agreed that the proposed right­in access could be made as safe as any similar right­in turn on a District Distributor A road, which the Tribunal accepts.

18. However, the uncontested evidence before the Tribunal was that the proposed right­in access from Lloyd Street still introduced an additional conflict point on a road that is to function as an important regional connector.

19. In addition the evidence of the traffic experts was that controlled intersections, relevantly in this case the traffic lights at the Clayton Street/Lloyd Street intersection and the proposed roundabout at the Lloyd Street/Public Link Road roundabout, provide better safety outcomes that the uncontrolled intersection proposed.

20. Finally and importantly, as outlined earlier, the evidence was that the portion of Lloyd Street where the right­in was proposed is likely to carry 25,000 vpd and have two controlled intersections within 340 metres of each other.

21. For these reasons the Tribunal finds that in regard to the 'safety question' the introduction of an additional, unplanned for, conflict point on what will be a regional connector with high volumes of traffic and two controlled intersections in reasonable proximity does not merit support.

22. The Tribunal is therefore not satisfied in the circumstances of the present case that the correct and preferable decision would be to exercise its discretion to support a proposal which introduces an additional conflict point on what will be a regional connector road and which runs counter to both the strategic planning framework for the subject site and the principles clearly enunciated in DCP 5.1.

23. Rather, from an orderly and proper planning perspective, the proposed condition as imposed by the respondent should remain and the applicant's application to amend the condition to allow the right turn proposed will be refused.

Issue 2:   whether a right­in access to the service station south of the Clayton St/Cowie Close should be allowed (bullet point 4 of condition 3)

1. Unlike Issue 1, there was no planning evidence given by either party in respect of this issue and effectively, the matter turns on the evidence of the traffic experts.

2. In the Joint Export Report under the heading 'Road Function' it stated:

   All experts agreed that in terms of road function, there was no concern about permitted a right turn off the PLR into the service station.

3. Mr Bordbar carried out queue modelling from which he concluded there would be no blocking occurring back from traffic approaching the roundabout from the south, while Mr Veal, one of the traffic experts for the respondent, who had done his own analysis, did not agree.

4. Mr Veal believed that the length of the queue could extend much further back than Mr Bordbar contended.

5. Cross­examination of Mr Veal's analysis confirmed that a problem may in fact only arise during one of the four times modelled and then for a very short duration, when the length of the queue predicted by Mr Veal may exceed the capacity of the queue lane.  For the remainder of the time there appeared to be no issue. 

6. The issue of delivery tankers entering the service station was also discussed but it appeared to be accepted that they would generally arrange to visit outside of the usual peak periods, meaning they would not impact the times when there were concerns about queuing.

7. Indeed the modelling put forward by Mr Veal at its worst case scenario showed that any issue that may arise, would only arise on limited occasions and for a short duration, if at all.

8. The difference of opinion arose in respect of how such a right turn would operate, particularly due to its close proximity to the Clayton Street roundabout.

9. Mr Veal's evidence was that the right turn into the service station was too close to the exit from the roundabout and this was his primary cause of concern. 

10. However, apart from the possible queuing, there was no real argument put forward in opposition to the right turn into the service station.

11. Given there being no clear evidence that the right turn would be unsafe or would not operate appropriately other than possibly on rare occasions the Tribunal is satisfied that the condition under consideration in respect of the access to the service station should be deleted (bullet point 4 of condition 3) to allow such access.

Interim access

1. This issue relates to circumstances where, if the proposed development itself has been completed and is operational before the City of Swan constructs the Lloyd Street extension, the applicant will need interim access arrangements to allow access from the subject site to the northern part of Lloyd Street already constructed.

2. In this respect, the applicant called Mr Eden, a representative of Bunnings who explained the need for this access if the development was completed and operational prior to the Lloyd Street extension being completed.

3. The Tribunal accepts Mr Eden's evidence and the need for such access and the parties, through ongoing discussion finally agreed to a consent position in respect of that matter and on 25 June 2019 filed an agreed condition regarding an interim solution which states:

   Agreed condition regarding the interim solution

   3b.The temporary vehicle egress to Lloyd Street, including street lighting, line marking, stormwater drainage and signage, is to be constructed and maintained by the applicant at its expense, generally in accordance with Plan Ref: ti8.i75.sko2e dated 21 February 2019, subject to detailed design demonstrating safe and efficient traffic movement including at the intersection with Coppershop Road, details of which are to be provided at working drawings stage to the satisfaction of the MRA in consultation with the City of Swan.

   The temporary egress is to be closed with all redundant infrastructure removed and the kerbing, verge and footpath reinstated (where required), within four weeks of receiving formal notification to do so from the MRA pursuant to advice from the City of Swan that the removal and reinstatement work are now required under its works programme for construction of the Lloyd Street extension.  All deconstruction and reinstatement works are to be undertaken by the applicant at the applicant's expense, to the satisfaction of the MRA in consultation with the City of Swan.

4. The Tribunal will therefore add that condition to the approval by consent.

Conclusion

1. On 25 June 2019 the parties helpfully filed 'Agreed Without Prejudice Draft Conditions'.  So dealing with each of the matters in turn.

Issue 1

1. For the reasons outlined above, as the Tribunal does not support and will not approve the right turn to the subject site from Lloyd Street. Therefore, revised condition 1 and condition 4 filed by consent on 25 June 2019, will be approved and imposed, which for the avoidance of doubt are:

   Revised Condition 1 ­ If SAT does not approve the Right Turn on Lloyd Street

   1.The development must be undertaken in accordance with the approved plans and documents attached to this approval, details of which are to be provided at working drawings stage, to the satisfaction of the Metropolitan Redevelopment authority (MRA), prior to the commencement of works on site.  The approved plans and documents of development are listed as follows:

   Plan / Document Name          Ref.             Date Received

   Location Plan  Aoo2            20 December 2018

   Site SurveyAoo3            26 March 2018

   Master Site Plan (with survey)    Aoo4            20 December 2018

   Master Site Plan (without survey)  Aoo5            20 December 2018

   Landscape Master Plan            Aoo7            26 March 2018

   Landscape Materials and          Aoo8            26 March 2018
   Planting Master Plan

   Building 1 Ground Floor Plan      A101            20 December 2018

   Building 1 - Ground Floor Part 1    A101a          20 December 2018

   Building 1 - Ground Floor Part 2    A101b          20 December 2018

   Building 1 ­ Elevations             A102            20 December 2018

   Building 1 ­ Elevations and         A103            20 December 2018
   Fence Sections

   Building 1 - Roof Part Plan 1      A105            20 December 2018

   Building 1 - Roof Part Plan 2      A106            20 December 2018

   Building 1 – Sections               A107            20 December 2018

   Building 2 - Ground Floor Plan     A201            20 December 2018

   Building 2 ­ Elevations             A202            20 December 2018      

   Building 2 ­ Sections                A204            26 March 2018

   Building 2 - Roof Plan              A205            26 March 2018

   Building 3 - Ground Floor Plan     A301            26 March 2018

   Building 3 - First/Second Floor     A302            20 December 2018
   Plan and Elevations

   Building 3 ­ Sections                A304            26 March 2018

   Building 3 - Roof Plan              A305            26 March 2018

   Building 4 - Ground Floor Plan     A401            20 December 2018

   Building 4 ­ Elevations             A402            20 December 2018

   Building 4 ­ Sections                A404            26 March 2018

   Building 4 - Roof Plan              A405            26 March 2018

   Building 5 ­ Ground Floor          A501            20 December 2018
   Plan and Elevations

   Building 5 ­ Sections                A503            20 December 2018

   Building 5 - Roof Plan              A504            20 December 2018

   Building 6 - Ground Floor Plan     A601            20 December 2018

   Building 6 ­ Elevations             A602            26 March 2018

   Building 6 ­ Sections                A604            26 March 2018

   Building 6 - Roof Plan              A605            26 March 2018

   Building 7 - Ground Floor Plan     A701            26 March 2018

   Building 7 - Elevations 1            A702            26 March 2018

   Building 7 - Elevations 2            A704            26 March 2018

   Building 7 ­ Sections                A705            26 March 2018

   Building 7 - Roof Plan              A706            26 March 2018

   Building 8 ­ Ground Floor Plan     A801            20 December 2018
   and Elevations

   Building 8 ­ Sections                A802            20 December 2018

   Building 8 Concept                 A803            20 December 2018

   Building 3 - Canopy Sections      A903            26 March 2018

   Building 4 - Canopy Sections      A904            26 March 2018

   Building 5 - Canopy Sections      A905            26 March 2018

   Building 6 - Canopy Sections      A906            26 March 2018

   Building 7 - Canopy Sections      A907            26 March 2018

   1A. The north western corner of Building 1 shown on plans A101, A101a and A102 is to be modified to delete any projections or encroachments beyond the Lot boundary with Lloyd Street, details of which are to be provided at working drawings stage to the satisfaction of the MRA.

   1B Plans Aoo2, Aoo4, and Aoo5 are to be modified to delete any mid block right in access from Lloyd St to the development, details of which are to be provided at working drawing stage to the satisfaction of the MRA.

   Condition 4 ­ if Right In on Lloyd is not approved:

   4.The plans and supporting technical reports are to be amended to detail the following traffic and access modifications:

   •the mid-block Lloyd Street access and the mid­block Clayton Street access are both restricted to left-in/left-out movements only;

   •demonstrate compliant service vehicle turning movement templates for all service areas throughout the site to support ease of movement and prevent vehicle and pedestrian conflict; and

   •provide existing and finished levels for the site demonstrating vehicle and pedestrian access points seamlessly integrate with the existing boundary and minimise the height and extent of retaining walls abutting the site boundary.

   •The widening of the service driveway to the rear of Building 1 to 6.5 m and the change in tenancy size for Building 4, Unit 3 to approximately 1,001 sqm (GFA)and Building 4, Unit 4 to approximately l,040 sqm (GFA); and

   •The car parking bays located in between the right­in and left out driveways mid-block on Lloyd Street are to be removed.

   Details are to be submitted at working drawings stage and implemented prior to the operation of the development, to the satisfaction of the MRA in consultation with the City of Swan.

Issue 2

1. In relation to Issue 2, the parties' agreed condition should the right­in to the service station be permitted was as follows:

   Agreed condition should the right­in to the service station be permitted

   3a.All necessaiy road works required for the development to operate in a safe and legible manner, are to be completed by the applicant, at its expense, prior to the commencement of operation of the development, including:

   • construction of a median strip on Clayton Street to prevent right turn movements into or out of the mid­block Clayton Street access; and

   • the 'Public Link Road' is to be constructed in accordance with the approved plans and available for public use in perpetuity including unrestricted access to Transperth buses, protected either through dedication as a public road or registration of a public access easement in gross.

   Detailed designs and construction methodology for all road works are to be submitted at working drawings stage to the satisfaction of the MRA in consultation with the City of Swan.

   Condition 3 will therefore be amended to be in that form.

Interim solution

1. The parties' agreed condition regarding the interim solution outlined earlier will be imposed as condition 3b.

Other conditions

1. The parties also agreed on a new condition 3c regarding Clayton Street/Cowie Close Roundabout and the Tribunal confirms that a minute of consent orders filed on 13 May 2019 will be imposed as agreed, which states:

   New agreed condition (consent orders filed by the parties) regarding Clayton St/Cowie Close Roundabout

   3c.The construction of the Clayton Street/ Cowie Close Roundabout adjacent to the north eastern corner of the site is to be completed prior to the commencement of the operation of the development.

2. In the parties' agreed Without Prejudice Draft Conditions filed on 25 June 2019, the parties also agreed to delete condition 2 as presently imposed and the Tribunal will also make that order.

3. In summary therefore the orders of the Tribunal will amend the conditions attached to the development approval dated 7 June 2018 as follows:

   a)Condition 1 will be deleted and replaced by the revised condition as set out above;

   b)Condition 2 will be deleted as agreed by the parties;

   c)Condition 3 will be amended in the form of Condition 3a, 3b and 3c as agreed by the parties and set out above; and

   d)Condition 4 will be amended as per the wording agreed by the parties and set out above.

Orders

The Conditions attached to the approval dated 7 June 2018 the subject of the review in DR 139 of 2018 will, for the reasons outlined in the Tribunal's decision dated 10 October 2019 be amended as set out in Attachment A:

ATTACHMENT A to orders of 10 October 2019 in DR: 139/2018

1.Condition 1 will be deleted and replaced by the following condition:

1.The development must be undertaken in accordance with the approved plans and documents attached to this approval, details of which are to be provided at working drawings stage, to the satisfaction of the Metropolitan Redevelopment authority (MRA), prior to the commencement of works on site.  The approved plans and documents of development are listed as follows:

Plan / Document Name          Ref.             Date Received

Location Plan  Aoo2            20 December 2018

Site SurveyAoo3            26 March 2018

Master Site Plan (with survey)    Aoo4            20 December 2018

Master Site Plan (without survey)  Aoo5            20 December 2018

Landscape Master Plan            Aoo7            26 March 2018

Landscape Materials and          Aoo8            26 March 2018
Planting Master Plan

Building 1 Ground Floor Plan      A101            20 December 2018

Building 1 - Ground Floor Part 1    A101a          20 December 2018

Building 1 - Ground Floor Part 2    A101b          20 December 2018

Building 1 ­ Elevations             A102            20 December 2018

Building 1 ­ Elevations and         A103            20 December 2018
Fence Sections

Building 1 - Roof Part Plan 1      A105            20 December 2018

Building 1 - Roof Part Plan 2      A106            20 December 2018

Building 1 – Sections               A107            20 December 2018

Building 2 - Ground Floor Plan     A201            20 December 2018

Building 2 ­ Elevations             A202            20 December 2018      

Building 2 ­ Sections                A204            26 March 2018

Building 2 - Roof Plan              A205            26 March 2018

Building 3 - Ground Floor Plan     A301            26 March 2018

Building 3 - First/Second Floor     A302            20 December 2018
Plan and Elevations

Building 3 ­ Sections                A304            26 March 2018

Building 3 - Roof Plan              A305            26 March 2018

Building 4 - Ground Floor Plan     A401            20 December 2018

Building 4 ­ Elevations             A402            20 December 2018

Building 4 ­ Sections                A404            26 March 2018

Building 4 - Roof Plan              A405            26 March 2018

Building 5 ­ Ground Floor          A501            20 December 2018
Plan and Elevations

Building 5 ­ Sections                A503            20 December 2018

Building 5 - Roof Plan              A504            20 December 2018

Building 6 - Ground Floor Plan     A601            20 December 2018

Building 6 ­ Elevations             A602            26 March 2018

Building 6 ­ Sections                A604            26 March 2018

Building 6 - Roof Plan              A605            26 March 2018

Building 7 - Ground Floor Plan     A701            26 March 2018

Building 7 - Elevations 1            A702            26 March 2018

Building 7 - Elevations 2            A704            26 March 2018

Building 7 ­ Sections                A705            26 March 2018

Building 7 - Roof Plan              A706            26 March 2018

Building 8 ­ Ground Floor Plan     A801            20 December 2018
and Elevations

Building 8 ­ Sections                A802            20 December 2018

Building 8 Concept                 A803             20 December 2018

Building 3 - Canopy Sections      A903            26 March 2018

Building 4 - Canopy Sections      A904            26 March 2018

Building 5 - Canopy Sections      A905            26 March 2018

Building 6 - Canopy Sections      A906            26 March 2018

Building 7 - Canopy Sections      A907            26 March 2018

1A. The north western corner of Building 1 shown on plans A101, A101a and A102 is to be modified to delete any projections or encroachments beyond the Lot boundary with Lloyd Street, details of which are to be provided at working drawings stage to the satisfaction of the MRA.

1B Plans Aoo2, Aoo4, and Aoo5 are to be modified to delete any mid block right in access from Lloyd St to the development, details of which are to be provided at working drawing stage to the satisfaction of the MRA.

2.Condition 2 will be deleted.

3.Condition 3 will be amended by the deletion of the initial paragraph and the six bullet points that follow and be replaced by the following:

3a.All necessaiy road works required for the development to operate in a safe and legible manner, are to be completed by the applicant, at its expense, prior to the commencement of operation of the development, including:

• construction of a median strip on Clayton Street to prevent right turn movements into or out of the mid­block Clayton Street access; and

• the 'Public Link Road' is to be constructed in accordance with the approved plans and available for public use in perpetuity including unrestricted access to Transperth buses, protected either through dedication as a public road or registration of a public access easement in gross.

Detailed designs and construction methodology for all road works are to be submitted at working drawings stage to the satisfaction of the MRA in consultation with the City of Swan.

3b.The temporary vehicle egress to Lloyd Street, including street lighting, line marking, stormwater drainage and signage, is to be constructed and maintained by the applicant at its expense, generally in accordance with Plan Ref: ti8.i75.sko2e dated 21 February 2019, subject to detailed design demonstrating safe and efficient traffic movement including at the intersection with Coppershop Road, details of which are to be provided at working drawings stage to the satisfaction of the MRA in consultation with the City of Swan.

The temporary egress is to be closed with all redundant infrastructure removed and the kerbing, verge and footpath reinstated (where required), within four weeks of receiving formal notification to do so from the MRA pursuant to advice from the City of Swan that the removal and reinstatement work are now required under its works programme for construction of the Lloyd Street extension.  All deconstruction and reinstatement works are to be undertaken by the applicant at the applicant's expense, to the satisfaction of the MRA in consultation with the City of Swan.

3c.The construction of the Clayton Street/ Cowie Close Roundabout adjacent to the north eastern corner of the site is to be completed prior to the commencement of the operation of the development.

4.Condition 4 will be amended by the deletion of the initial paragraph and the three bullet points following and be replaced by the following:

4.The plans and supporting technical reports are to be amended to detail the following traffic and access modifications:

•the mid-block Lloyd Street access and the mid­block Clayton Street access are both restricted to left-in/left-out movements only;

•demonstrate compliant service vehicle turning movement templates for all service areas throughout the site to support ease of movement and prevent vehicle and pedestrian conflict; and

•provide existing and finished levels for the site demonstrating vehicle and pedestrian access points seamlessly integrate with the existing boundary and minimise the height and extent of retaining walls abutting the site boundary.

•The widening of the service driveway to the rear of Building 1 to 6.5 m and the change in tenancy size for Building 4, Unit 3 to approximately 1,001 sqm (GFA)and Building 4, Unit 4 to approximately l,040 sqm (GFA); and

•The car parking bays located in between the right­in and left out driveways mid-block on Lloyd Street are to be removed.

Details are to be submitted at working drawings stage and implemented prior to the operation of the development, to the satisfaction of the MRA in consultation with the City of Swan.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR M SPILLANE, SENIOR MEMBER

10 OCTOBER 2019