Atlas Point Pty Ltd and Western Australian Planning Commission
[2013] WASAT 33
•5 MARCH 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ATLAS POINT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 33
MEMBER: MR P McNAB (SENIOR MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD: 29 & 30 NOVEMBER AND 3 & 4 DECEMBER 2012
DELIVERED : 5 MARCH 2013
FILE NO/S: DR 391 of 2011
BETWEEN: ATLAS POINT PTY LTD
First Applicant
PRO INVESTMENTS AUSTRALIA PTY LTD
Second ApplicantAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Development application Department store Activities centres hierarchy Shopping centre Department store proposed for Bunbury Regional and local planning framework providing for any department store to be established in central business district (CBD) Developers seeking expansion of existing nonCBD shopping centre to accommodate proposal City of Bunbury approving same under local planning scheme Deemed refusal by Western Australian Planning Commission under regional planning scheme Whether proposal consistent with statutory planning framework Evidence of various site constraints in CBD Whether proposal likely to undermine established hierarchy of activity centres Evidence of some detrimental economic effect on CBD if nonCBD approval given No firm proposal for department store in immediate future Whether outcome in accordance with planning framework would ever be possible Whether orderly and proper planning requires resolution of CBD site limitations and constraints Tribunal holding that insufficient case presented to justify departure from planning framework Application for review refused
Legislation:
Planning and Development Act 2005 (WA)
City of Bunbury Town Plan ning Scheme No 7, cl 1.6, cl 1.6.3, cl 2.1.1, cl 4.2
Greater Bunbury Region Scheme, cl 5(e), cl 6(a), cl 40, cl 12, cl 40
Result:
Review dismissed
Summary of Tribunal's decision:
The applicants sought development approval for the expansion of the existing Bunbury Forum shopping centre to accommodate a major department store. The store's potential operator had not yet committed to open in Bunbury but there were indications that, amongst other things, should the economic climate continue to improve, then such a proposal might well become a reality. The department store operator favoured the Bunbury Forum location. However, this event seemed, at present, to be several years away.
The Bunbury City Council, contrary to its own written policy and to its professional officers' advice, had conditionally approved the development under its local planning scheme. The Western Australian Planning Commission (which also had to approve the development but under a regional planning scheme) had, in effect, refused to do so on the basis that the planning framework favoured such development in the Bunbury central business district. Bunbury Forum is located some kilometres away from the central business district.
The Western Australian Planning Commission's written policy viewed the Bunbury central business district as the 'City centre' in the hierarchy, as it was 'considered to be the prominent focal point for Greater Bunbury'. Department stores were included in the typical retail types for the Bunbury city centre, but they were not included in the typical retail types for any other centres.
The applicants provided evidence of significant limitations (practical and economic) as regards the establishment of a department store in the Bunbury central business district.
The issue before the Tribunal was whether, based on the circumstances of this particular case, the relevant provisions of the Western Australian Planning Commission's policy should be departed from and, if so, on what basis. In other words, the issue was whether the proposed department store should be permitted to be developed at the Bunbury Forum.
The Tribunal held that it should not give its approval to the proposed development. The Tribunal concluded that, absent a firm commitment to develop a major department store and given that it was unlikely that such a store would be established anywhere in Bunbury in the foreseeable future and, further, given the potential adverse impacts on the Bunbury central business district retailing activity if planning approval were to be given, the Tribunal could not be satisfied that, at present, a sufficient case had been made out for what would be a significant departure from the planning framework. This was so, notwithstanding the currently acknowledged central business district site-specific constraints.
However, the Tribunal noted that if, in fact, no progress were made on resolving these site-specific constraints in the central business district and a firmer commitment by a major department store operator emerged, then such changed circumstances might result in an approval being given for a non-central business district department store to be established at, say, the Bunbury Forum.
Accordingly, the application for review was dismissed.
Category: B
Representation:
Counsel:
First Applicant : Mr M Hotchkin and Mr S Halls
Second Applicant : Mr M Hotchkins and Mr S Halls
Respondent: Mr C Bydder and Mr P Spragg
Solicitors:
First Applicant : Hotchkin Hanly
Second Applicant : Hotchkin Hanly
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
Goldrange Pty Ltd and City of Wanneroo [2010] WASAT 52
Hawkins and City of Joondalup [2008] WASAT 64
Tah Land Pty Ltd v Western Australian Planning Commission [2008] WASAT 227; (2008) 60 SR (WA) 280
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Atlas Point Pty Ltd and Pro Investments Australia Pty Ltd (developers or applicants). The applicants have a common interest in developing an 'upmarket' department store (and associated facilities) in Bunbury, a major regional centre in the SouthWest of Western Australia.
The review involves a deemed refusal by the Western Australian Planning Commission (respondent or Commission) of a proposal to significantly expand an existing shopping centre (Bunbury Forum) to, in effect, accommodate a leading major department store. Bunbury Forum is an existing modern shopping centre located to the south-east of the Bunbury city centre.
The central issue in this review concerns the appropriateness of locating such a department store outside the Bunbury city centre; that is, at Bunbury Forum, which is approximately 3 kilometres from the city centre.
The City of Bunbury (City) has approved the substance of the developers' proposals for the expanded Bunbury Forum. However, the respondent, exercising its separate statutory powers of development control, has, in effect, refused the development, arguing that any department store should be located in the Bunbury city centre in accordance with its relevant planning policies.
As will be seen, the critical issue in the review is whether the merits of the case justify departure from those policies.
Site and locality
The subject land for the proposed development at Bunbury Forum comprises the site of the existing shopping centre located on Sandridge Road, East Bunbury (subject land or site). It consists of the following parcels of land:
1)Lots 63 and 68 Sandridge Road; and
2)Lots 69 and 70 Pennant Road.
Lots 1, 2 and 150 Strickland Street and Lot 134 Jipse Crescent were originally thought to be required for additional parking for the proposed development, but this issue has fallen away and is not relevant to this review.
Bunbury Forum
The existing Bunbury Forum site is a triangular portion of land bounded by Sandridge Road to the south, Pennant Road to the west and Strickland Road to the north. Sandridge Road is an 'Other Regional Road' (a 'Blue Road') under the provisions of the Greater Bunbury Region Scheme (GBRS) and provides direct access from the Bunbury Bypass through to Blair Street which links north to the Bunbury city centre.
While the subject land can be accessed off both Pennant Road and Strickland Street, the major access points are located on Sandridge Road. Current development on the land comprises:
•Bunbury Forum shopping centre (and an associated large open carpark);
•a business centre;
•a McDonalds fast food outlet located adjoining the Pennant Road boundary (McDonalds);
•an existing petrol station on the corner of Sandridge Road and Pennant Road; and
•a Kentucky Fried Chicken fast food outlet at the eastern end of the site (KFC).
The Bunbury Forum shopping centre itself is located adjoining the Strickland Road boundary and comprises an IGA supermarket, a Woolworths supermarket, a number of specialty stores and a Big W discount department store. The main pedestrian entry to the Bunbury Forum shopping centre is located centrally on the southern side, from the large carpark which separates the shopping centre from Sandridge Road.
The proposed development
According to the applicants, the proposed development will 'reinvigorate' Bunbury Forum shopping centre by diversifying the tenant profile through the introduction of a 'full range leading brand department store and fashion anchor'. The expansion of Bunbury Forum shopping centre will, it is said, also allow for an increase in both the 'variety and number of specialty stores' in the shopping centre.
The proposed development includes the construction of buildings, additional car parking, reconfigured access arrangements, and landscaping. More particularly, the proposed development will include the following:
1)Increasing the approved lettable area for retail purposes to 35,415 square metres, or 16,233 square metres above the existing area of retail uses.
2)The construction of a new, two level department store above a new ground floor car parking area; new specialty shops; a mall extension; a three level shaded car parking area, and an 'activated' outdoor area.
3)The demolition of the existing business centre on Pennant Road.
4)The relocation of the existing McDonalds near the corner of Pennant Road and Sandridge Road.
5)The upgrading of the existing petrol station.
Therefore, in summary, the proposed development will be located between the existing Bunbury Forum shopping centre and the Pennant Road and Sandridge Road intersection; that is, the southwestern portion of the land. The business centre on Pennant Road will be demolished, the McDonalds on Pennant Road will be relocated adjacent to the Sandridge Road boundary, and the existing petrol station will be retained in its current location.
In terms of proposed retail expansion, the existing southern mall will be extended to the west, and a new ramp lined with specialty stores will be built out in a southwesterly direction leading up to the two storey department store located over new ground level car parking adjacent to the Pennant Road boundary. An additional section of mall, lined with specialty retail outlets and two 'minimajor' stores, will be constructed adjacent to the new three level car parking structure facing Sandridge Road.
Procedural history
The application seeking planning approval for the expansion of the Bunbury Forum shopping centre was lodged with the City on 13 May 2011. The development application was referred to the respondent by the City on 26 May 2011. As the proposal had 'regional significance', it was required to be determined by the respondent in accordance with the GBRS.
Such applications are also required, pursuant to the GBRS, to be determined within 90 days of the receipt of the application. The applicants agreed to the extension of this period on two occasions. A further request for an extension from the respondent to undertake a number of supplementary investigations was sought and was declined by the applicants. The application was deemed to have been refused on 21 October 2011 and, on 18 November 2011, the applicants applied to the Tribunal for a review of the deemed refusal.
The City's concurrent approval
The proposed development also requires a separate determination by the City under the City of Bunbury Town Planning Scheme No 7 (TPS 7).
Importantly, the City, over its officers' objections (and apparently contrary to its own published policy on the issue), resolved at its meeting of 25 September 2012 to approve the development, subject to certain conditions. A number of the conditions imposed by that approval are currently being mediated in the Tribunal in separate review proceedings.
On 2 February 2012, the City forwarded to the respondent the Council's reasons for supporting the proposal. These were as follows:
(1)The commercial centre of Bunbury has three elements, the CBD itself, the Homemaker Centre and the light industry and facilities that surround them, and the Bunbury Forum Shopping Centre. These work in synergy with each other and form the primary reason why residents outside of the urban area of Greater Bunbury, come into Bunbury. All three centres, CBD, Homemaker and Forum are within five minutes['] drive of each other and people who come into the City of Bunbury, often access all three centres when they visit. This of course is not a reason on its own to change the zonings or land use of any of the three parts but in planning terms it is relevant to recognise the synergies and how they complement each other. It is a reason why the Forum does not need to further develop its own hierarchy of land uses surrounding the retail areas at the Forum as they are provided in the Homemaker Centre, CBD and the areas in between.
(2)A missing link to the commercial success of the CBD, Homemaker Centre and the Forum in combination and synergy, is the lack of a department store, such as a Myer or David Jones. Obtaining one ahead of competing regional centres outside of Greater Bunbury would help Bunbury to retain its role as the regional retail and service centre of the South[]West, and the second city of WA, and the regional capital of the South[]West[.] It is a critically important land use issue.
(3)Attracting such stores and advancing Bunbury as a priority site for the companies that operate them, and the chain franchise stores that often accompany them, has long been a very high priority of the City of Bunbury.
(4)No city would ever want to refuse such a store without there being a clear legal and/or planning reason for doing so.
(5)The economic, amenity, employment, financial and retail benefits that will be derived from a $180 million retail development including a department store at the Forum are obvious.
(6)It would also re-establish Bunbury as the regional retail destination of choice for the whole of the South[]West, upper Great Southern and lower Peel regions.
(7)The City acknowledges that the preference given to the CBD as the regional centre for major developments is a factor for consideration when making decisions of this kind, or decisions like a Kmart going to the Parks Centre.
(8)However[,] the synergy between the CBD, Homemaker Centre and the Forum also needs to be considered. Having a Department Store at the Forum would benefit all retailers[,] and especially those in the CBD and Homemaker Centre[,] to a greater or lesser degree. There will be at least a short term disadvantage to the CBD[,] as evidenced by the Shrapnel Report[,] but it would also benefit from attracting new shoppers to Bunbury and to [reducing] the number of locals who go to the CBD in Perth or the other regional shopping centres in Perth to access the department stores.
(9)In the case of the Forum development, Council had the benefit of:
(i)The application itself
(ii)A report from Shrapnel Urban Planning which included comment on the draft Activity Centre Policy and its impact on the CBD
(iii)A commentary on the Retail sustainability of the area
(iv)Views that the development ought to be in the CBD
(v)Advice that estimates of the percentage impact on Bunbury retailers as a whole was between 1% and 7.7% were within the bounds of reasonableness and
(vi)Over 26 submissions and
(vii)A website for comments by local residents of all ages that ran to ten pages[,] almost all of which supported the proposal and
(viii)Briefings and advice from senior planning staff.
(10)All of these matters were alluded to and commented on during the debate both at the Council Committee and Council meetings and it ought to be assumed that individual Councillors considered them fully in coming to their collective decision.
(11)In the end after listening to the advice offered, the documents before it, and hearing the debate the Council resolution was based on a view that while it was accepted that if a suitable site in the CBD was available or likely to be available in the near future the Council recognised it should support a CBD option, all but three Councillors were of the view that there was no identified, or identifiable site for a Department Store in the CBD, and certainly none that was likely to be developed in the near future, and that in order to ensure Bunbury, including the CBD, retained its status as the retail centre and capital of the South[]West, that [sic] we have a Department Store in the City of Bunbury and the retail amenity and benefit, and the economic benefits that would flow, Council should opt to support the Forum application and recommend it for approval.
(12)In the light of these advices and the other material before Council, the principle [sic] issue was the question of whether the current department store proposal could be and/or should be located in the CBD, because of the general primacy that should be attached to the CBD, and the potential for a non[-]CBD location to have an adverse effect on the CBD.
(13)In practical terms this led Councillors to examine the question of whether a suitable CBD site had ever been identified. The answer to that question was in our view no.
(14)The secondary question was if a suitable site could be identified, would it be a land parcel in several or common ownership.
(15)A further question was how long it might take if one land parcel under common ownership was not available, to assemble such a land parcel, to plan its development and then make that development bankable in the current financial climate, and then to design and construct the department store.
(16)The potential competition for the CBD is not simply within the area covered by the Greater Bunbury Region Scheme, but also comes from other cities in the Peel and Vasse region. Potential competition with the Bunbury CBD would not be a factor in the planning schemes for the Peel and Vasse areas.
(17)If a Department Store location was approved in any of those competing areas, before a CBD site was available, there would be a very much reduced chance of one coming to Bunbury.
(18)The greatest threat to the CBD was and remains the Draft Activity Centre Policy, or for Department [S]tore decision[]makers to bypass Bunbury because of the lack of a suitable site in the CBD.
(19)There also remains a possibility that the Department Store may go to one of the regional or district centres outside of the City of Bunbury given the proposed Activity Centre Policy.
(20)Given the lack of any identifiable suitable alternative sites within the CBD, especially a site that would be in proximity to existing CBD retailers, and that there would be benefits to the CBD traders by a Department [S]tore being built anywhere in the City of Bunbury, and the amenity and economic benefit it would [bring] to Bunbury, Council opted to approve the Forum site in the interests of Greater Bunbury as a whole, including the CBD.
(21)It was also believed that this development would complete the Forum Centre and future developments were more likely to go to the CBD. This could include a second Department Store, but at present[,] there is no identified site in the CBD for a Department [S]tore, and it is likely that it will be some years before such a development was likely to be achieved in the CBD.
Against this background, we turn to consider the respective regional and local planning frameworks relevant to the issues to be determined.
The planning framework: regional schemes
The site of the existing Bunbury Forum shopping centre is zoned Urban under the GBRS and Shopping Centre under the provisions of TPS 7. The respondent's preferred location for the proposed development is the Bunbury city centre, and that site is zoned Regional Centre under the GBRS and City Centre under TPS 7.
The GBRS, at clause 5(e), sets out certain 'purposes' of the scheme, which includes the following:
… [the provision of] a mechanism for certain development of regional significance, and development in areas of regional significance, to be considered and approved by the Commission; …
At clause 6(a), the GBRS establishes certain 'aims', which include the following:
… [the promotion of] sustainable development of land taking into account relevant environmental, social and economic factors;
…
The 'purposes' of the various zones established by the GBRS are set out in clause 12, as follows:
(a)Urban to provide for residential development and associated local employment, recreation and open space, shopping, schools and other community facilities;
…
(c)Regional Centre the Bunbury central business district within which commercial, civic, cultural, service and administration activities serving the region are located[.]…
Clause 40 of the GBRS sets out matters to be considered by a decisionmaker in considering an application for planning approval. These provisions include:
(a)the aims and provisions of the [GBRS] and any other local planning schemes in effect within the region;
…
(e)any policy or strategy of the [respondent] and any policy adopted by the Government of the State;
…
(zb)any other planning consideration the [decisionmaker] considers relevant.
The planning framework: main regional policies
The Activity Centres for Greater Bunbury Policy (ACGB Policy) was adopted by the respondent on 16 March 2012. Although the applicants raised concerns regarding both the content and the timing of the adoption of this policy, the expert planning witnesses all agreed that this policy formed part of the planning framework. We respectfully agree with that position. The ACGB Policy says:
The Activity Centres for Greater Bunbury Policy is based on the principles of State Planning Policy 4.2 Activity Centres for Perth and Peel. The Activity Centres for Greater Bunbury Policy will be included in the State Planning Framework as set out in Statement of Planning Policy No. 1 State Planning Framework Policy and will apply to the area within the boundaries of the Greater Bunbury Region Scheme. It will specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres within the City of Bunbury and the Shires of Capel, Dardanup and Harvey. The policy is mainly concerned with the distribution, function, broad land use and urban design criteria of activity centres and with coordinating their mixed land uses and infrastructure planning.
Under the ACGB Policy, an 'activity centre' is referred to in the following terms:
[They are] community focal points within cities and towns. They are the central nodes that provide a diverse range of services, facilities and activities to enable residents, workers and visitors to participate as part of the community.
The ACGB Policy, at clause 2, Table 1, establishes certain objectives. In dealing with the 'activity centre hierarchy', the ACGB Policy seeks to:
[d]istribute activity centres to meet different levels of community needs and enable employment, goods and services to be accessed efficiently and equitably by the community.
In dealing with 'activity', the ACGB Policy, among other objectives, seeks to:
[a]pply the activity centre hierarchy as part of a long-term and integrated approach by public authorities and private stakeholders to the development of economic and social infrastructure.
The 'Policy provisions' of clause 3.1 of the ACGB Policy include the following (emphasis added):
…
(3)The responsible authority should consider the main role/function and typical characteristics for each centre type outlined in Table 2 [see below] and should not support activity centre structure plans or other structure plans, scheme amendments or development proposals that are likely to:
•undermine the activity centre hierarchy or the policy objectives;
…
(4)The responsible authority shall not approve major development of activity centres unless a retail sustainability assessment and an activity centre structure plan have been prepared and endorsed in accordance with clause 3.2 and clause 3.3, respectively …
(5)This policy has identified the Bunbury central business district (CBD) as the only centre within the City centre hierarchy as it is considered to be the prominent focal point for Greater Bunbury. Proposals for any of the other centres that would undermine the primacy of the CBD would need to be justified in accordance with this policy.
As is apparent from the provisions reproduced immediately above, clause 3.1(5) of the ACGB Policy is central to the issues agitated in this review. And if approval were to be given to the development, then it may be necessary to revisit the obligations, if any, arising under clause 3.1(4) and clause 3.3(1) of the ACGB Policy, set out above, dealing, in particular, with the preparation of a structure plan.
Table 2 of the ACGB Policy goes on to set out functions and typical retail types in various centres. Importantly, 'Department Stores' are included in the typical retail types for the Bunbury city centre, but they are not included in the typical retail types for any other centres.
Finally, Table 3 of the ACGB Policy establishes a 'Diversity performance target', which seeks to ensure that district and neighbourhood centres (but not the Bunbury city centre) with a proposed retail floor area of more than 15,000 square metres (which is the case here) should have a 30% mix of other (presumably other than retail) land uses integrated into the activity centre.
The planning framework: local schemes
Clause 1.6 of TPS 7 sets out certain aims of the Scheme, which include the following:
The local government's general aim of the Scheme is to plan for the efficient and equitable use of land with due regard to the community needs and aspirations for quality of life and the environment.
At cl 1.6.3 of TPS 7, the specific objectives of the Scheme are set out and include the following:
…
(b)To ensure there is a sufficient supply of serviced and suitable land for housing, employment, commercial activities, community facilities, recreation and open space;
…
(n)To promote and assist Bunbury's future growth as a Regional Centre of character which offers an attractive and unique lifestyle enhanced by economic growth opportunities.
Clause 4.2 of TPS 7 sets out the broad objectives of the zones established by TPS 7. These include the following:
…
4.2.1.2City Centre zone To provide for a broad range of uses including administrative, civic, cultural, entertainment, educational, residential, recreational, retail and hospitality/tourist as well as other commercial functions and activities which assist in maintaining and promoting the primacy of the Bunbury Central Business District
(a)within the local government area; and
(b)as the Regional Centre within the Bunbury Wellington Region.
4.2.1.3Shopping Centre zone To accommodate suburban shopping centres and such other uses as the local government considers appropriate to the suburban shopping centre function including, but not limited to, retail shopping, office, other approved commercial development, social, recreational and community activities and facilities.
The planning framework: main local policies
Clause 2.1.1 of TPS 7 provides the authority for the City to prepare local planning policies. On 22 March 2011, the City adopted the Local Planning Strategy for Activity Centres and Neighbourhoods (LPSACN). This constitutes a 'general strategy to guide town planning zoning, policy development and decision making in relation to … development'.
As a general principle, the LPSACN favours maintaining unrestricted development potential in the Bunbury CBD, with appropriate restrictions placed on the type and intensity of development in all other commercial locations. Importantly, the LPSACN suggests, at 45, that 'it will be absolutely essential for any full line department store to be located within the Bunbury CBD'.
Table 9 of LPSACN sets out the recommended floor space guidelines, with a maximum total retail floor space of 26,000 square metres nominated for the Bunbury Forum District Centre. It should be noted that a planning approval (still current) issued by the City in 2008 would allow Bunbury Forum to expand beyond that recommended figure to 30,942 square metres. This approval, however, does not include a department store.
The issues
The central issues in the matter may now be addressed. We first set out the parties' respective positions on what they saw the issues as, commencing with the respondent's views, as follows:
1.Whether the [a]pplicant's development application should be approved pursuant to the [GBRS], having regard to:
(a)The applicable planning framework, particularly in relation to the location of department stores;
(b)Whether a department store development can be accommodated within the Bunbury central business district ('the CBD');
(c)The economic and social impact of the proposed development on the commercial viability of the CBD; and
(d)The absence of a structure plan for the proposed development.
2.If the first issue is answered in the affirmative, whether conditions should be imposed and, if they should, what those conditions should be.
On the other hand, the applicants saw the issues as follows:
(a)Whether the proposed development is inconsistent with the [ACGBP] adopted [on] 16 March 2012 …;
(b)If the proposed development is inconsistent with the [ACGB Policy], whether the net economic and social benefits associated with the proposed development justify a departure from the [ACGB Policy], to the extent that it is applicable, and for approval to be granted for the proposed development[;] and
(c)What are the conditions to be imposed on the grant of an approval, if any.
As the ACGB Policy is a policy to be applied in the context of decisionmaking under the GBRS, the essential differences between the parties on the issues to be decided are perhaps more apparent than real. And, having now received all of the evidence and having considered the matter, the Tribunal can restate the substantive issue under review here as: whether, based on the circumstances of this particular case, the relevant provisions of the ACGB Policy should be departed from and, if so, on what basis. In other words, should the proposed department store be permitted to be developed at Bunbury Forum?
Essentially, the applicants' case revolves around the more or less positive commercial indications of a major department store operator; the practical and economic advantages of the Bunbury Forum site; and the various difficulties that potentially exist with the location of such a store in the Bunbury CBD. In short, the applicants seek to show that a good case can be made out for departing from the respondent's planning framework.
The applicable principles
From the applicants' point of view, this case is, in effect, all about avoiding an alleged '[d]iscrepancy with reality' (cf McLeod (ed), Planning & Development WA, Presidian Legal Publishing, Planning Case Notes (McLeod's Planning & Development WA) at paragraph 18.921.56, referring to the Tribunal's decision in Goldrange Pty Ltd and City of Wanneroo [2010] WASAT 52: see, for example, at [76], 'To the extent that planning proceeds on a basis that it ignores … reality … [it] is likely to result in inaccurate and flawed conclusions.').
In the United Kingdom, echoes of this problem in relation to retail centres may be found in major planning cases such as Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13. There, Lord Reed, at [28], said (emphasis added):
… As [the relevant part of the planning framework] makes clear, the application of the sequential approach [that is 'town centres should be the first choice for such developments, followed by edge of centre sites and, only after this, out of centre sites which are currently or potentially accessible by different means of transport'] requires flexibility and realism from developers and retailers as well as planning authorities. The need for flexibility and realism reflects an inbuilt difficulty about the sequential approach. On the one hand, the policy could be defeated by developers' [sic] and retailers' [sic] taking an inflexible approach to their requirements. On the other hand, as Sedley J remarked in R v Teesside Development Corporation, Ex p William Morrison Supermarket plc and Redcar and Cleveland BC [1998] JPL 23, 43, to refuse an outofcentre planning consent on the ground that an admittedly smaller site is available within the town centre may be to take an entirely inappropriate business decision on behalf of the developer. The [planning framework] seeks to address this problem. It advises that developers and retailers should have regard to the circumstances of the particular town centre when preparing their proposals, as regards the format, design and scale of the development. As part of such an approach, they are expected to consider the scope for accommodating the proposed development in a different built form, and where appropriate adjusting or subdividing large proposals, in order that their scale may fit better with existing development in the town centre. The [planning framework] also advises that planning authorities should be responsive to the needs of retailers. Where development proposals in outofcentre locations fall outside the development plan framework, developers are expected to demonstrate that town centre and edgeofcentre options have been thoroughly assessed. That advice is not repeated in the structure plan or the local plan, but the same approach must be implicit: otherwise, the policies would in practice be inoperable.
Such tensions and the interplay between developers' aspirations and planning policies which unjustifiably or wrongly retard those aspirations, if applied without sufficient flexibility, are also seen locally, and perhaps more relevantly, in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (Tah Land) (reversing Tah Land Pty Ltd v Western Australian Planning Commission [2008] WASAT 227; (2008) 60 SR (WA) 280).
In McLeod's Planning & Development WA, Tah Land is, with respect, correctly summarised, at paragraph 18.140.10, as a case where the Tribunal erred by 'in substance' considering itself as being bound by a State planning policy on activity centres and 'inflexibly' applying the policy, '[making] no reference to legal and practical consequences' which 'outweighed' the relevant planning considerations. The Tribunal there 'had not regarded itself as free to exercise its discretion contrary to policy' and had accordingly fallen into error. But the circumstances in this case are, it is to be noted, materially different to those of Tah Land. There, the appropriate catchment area had an undersupply of relevant retail, there was strong population growth and, importantly, there was a committed developer. Hence, a satisfactory case could be made out for departure from the relevant planning framework.
Against this background, the Tribunal will now turn to consider the main points of the expert and related evidence that has been received by the Tribunal.
The experts' evidence
Mr Cuzens the view from Atlas Point Pty Ltd
Mr Cuzens, the Managing Director of Atlas Point Pty Ltd, was called to give evidence on behalf of the applicants, in effect to set the scene. His evidence related to discussions that had taken place with a leading department store operator in regard to its interest in the Bunbury Forum development and the investigations into the feasibility of alternative locations for a department store within the Bunbury CBD. In regard to the former, he advised that as at October 2007, an 'in principle' agreement had been reached between Atlas Point Pty Ltd and a major department store as to the terms of a proposed lease. Following further discussions and negotiations, in May 2012, the department store advised that 'it had no current plans for a store in Bunbury Forum for the foreseeable future' although Mr Cuzens noted that that position was subject to change once the general economic and retail climate improved.
In regard to the feasibility of alternative locations for a department store within the Bunbury CBD, Mr Cuzens gave evidence that he had been advised by the department store operator that 'it saw no current opportunity that critical retail requirements such as ease of access, appropriate Centre car parking and integration into a critical mass of retail could be met in any known CBD location in Bunbury'.
It is convenient to note here that at least three of the possible alternative sites in the Bunbury CBD would relevantly affect the existing Stirling Centre shopping centre. That centre is owned by Atlas Point Pty Ltd. In response to crossexamination on this topic, Mr Cuzens said:
Stirling Centre was a strategic purchase for us. Obviously the ability to buy a centre as close to our competition as Centrepoint is [in the CBD] was important for us so our attitude is that, you know, we're a longterm holder of Stirling Centre to protect our Bunbury Forum position basically. So it's unlikely that well, there's no chance that we're going to sell Stirling Centre in the current environment. (T:57; 30.11.12)
Mr Rumbold retail expert
Mr Rumbold, a retail expert witness called by the respondent, gave evidence that department stores have had a difficult history in Australia over the past two decades. They were facing increased competition from discounters and specialty retail chains and, most recently, they have been affected by the growth of online shopping. He had concluded that a major development scheme to include a department store is likely to be difficult to support anywhere in Bunbury. The reason was that Bunbury's population and retail spending market is not yet adequate to sustain a department store. In his view, it was very unlikely that a department store would open in Bunbury before 2020.
In responding to a question on the potential development of a department store in Mandurah, Mr Rumbold responded that while such a development could delay the establishment of one at Bunbury, ultimately Mandurah and Bunbury were separate markets.
In regard to the location of a department store in the CBD, Mr Rumbold had prepared a report which assessed a number of potential CBD sites. He conceded that it was not clear how a policy consistent with a CBD location might be delivered in practice. The viability of such a scheme would be critically dependent on the position adopted by key landowners and also by the Council, particularly as regards to the provision of adequate car parking.
However, Mr Rumbold argued that the location of a department store at Bunbury Forum would have relevantly significant negative economic and social impacts on the CBD. He estimated that the reduced economic activity in the CBD would be in the range of 13% to 15%. Further, his oral evidence suggested that, outside the existing retail core, CBD retailing activity looked 'quite frail and vulnerable'. He also drew attention to the negative 'multiplier effect' of declining patronage caused by the creation of new retail development outside the CBD.
He submitted that outside a reasonably strong and sustainable retail core, the rest of the CBD retailing looked problematic and, in his view, was potentially at a tipping point. He argued that there was a need to do further work on potential CBD locations before a CBD location was regarded as cost prohibitive. While he believed that the multiplier and flowon benefits of a department store in the CBD would be greater than at Bunbury Forum, Mr Rumbold conceded that a department store at Bunbury Forum would bring economic benefits to the City and to the region. Mr Rumbold also argued that while an approval for a department store at Bunbury Forum would, in itself, be unlikely to spark any material change in trading or retailer expectations in the CBD, once construction was about to start and there were commitments from major retailers, it would carry an impact in terms of responses from CBD retailers.
Mr Dimasi retail expert
Mr Dimasi, a retail expert witness called by the applicant, gave evidence that it was quite unlikely that a department store would be developed in Bunbury within the next few years at least, because of the continuing impacts of the Global Financial Crisis (GFC). However, he argued that as the economy continues to recover from the GFC, it will become a realistic proposition, but it will take a number of years before it reaches that point.
Importantly, it was Mr Dimasi's evidence that '[t]here is certainly no possibility in my view, no practical possibility of [the development of a department store] happening in the CBD so certainly my views are predicated on it only happening at Bunbury Forum'. In support of this position, Mr Dimasi cited a range of criteria which he believed demonstrated that no suitable CBD site was available. These included the need:
… to have the support of a lot of other facilities around it before it will seriously entertain [such] a location and that support usually includes a desire to have certainly supermarkets and discount department stores but also the ability to be able to provide an extensive and modern specialty offer and, of course, car parking, access, egress, circulation and appropriate levels of car parking. (T:175; 03.12.12)
Mr Dimasi assessed the negative economic impacts of a department store scheme going to Bunbury Forum and came up with an estimate which is 'in the order of 9 per cent in terms of a trading impact on the Bunbury CBD' (T:177; 03.12.12). Mr Dimasi argued that the benefits of a department store at Bunbury Forum included establishing Bunbury as a genuine regional retail destination, significantly improved shopping choice, the attraction of customers from the broader region, and significant additional employment.
In addressing the potential impacts on the CBD of an approval for a department store at Bunbury Forum, Mr Dimasi said:
I don't see how the mere grant of an approval would have an impact. Of itself that would do nothing for CBD retailing really; you know, any retailer in the CBD would want to know a lot more than that and want to know what is proposed, when it's going to happen, exactly who's going to go there, [etc] ... So there would be a lot more factual information required and one would need to be a lot closer to the date at which something is actually about to happen before there's likely to be any impacts on the CBD. (T:216; 03.12.12)
Mr Shrapnel planner
Mr Shrapnel, an expert planner called by the respondent, had, back in 2011, prepared a report for the City responding to a retail sustainability assessment produced by the applicants. The main conclusions of his report were that:
•the application to expand Bunbury Forum to include a major department store was not in accordance with either of the recent City or Commission's draft activity centres planning studies/policies;
•the retail sustainability assessment contained many unsubstantiated assumptions; and
•there had been no assessment of the impact on the CBD (both the direct and more subtle economic and social effects over time).
In this report, Mr Shrapnel argued strongly that the SouthWest region's first major department store should not be located anywhere other than in the Bunbury CBD.
At the hearing, Mr Shrapnel said that he had 'formed [the] view that … the main department store operator, had not fully evaluated in any degree of detail any CBD option' (T:190; 03.12.12). Thus, in his view, it was still an open question as to whether or not something attractive could be provided and presented in relation to the CBD. He further agued that 'the positive impacts of a department store … would be gained by the City of Bunbury and the region as a whole whether or not the department store was in the [F]orum or the CBD'. However, in relation to local impact, he reiterated his view that:
… it's not only the percentage impact of the first year of trading, the instant one, that should be considered but a consideration of all the other … potential impacts that aren't necessarily quantifiable. (T:190; 3.12.12)
Mr Shrapnel said that he believed that 'from the moment the decision was made to approve [a department store at Bunbury Forum] the negative effects on the Bunbury CBD would start' (T:121; 30.11.12). What the CBD loses, Mr Shrapnel submitted:
… is not going to be gained at the [F]orum. A department store will be gained at the [F]orum but in terms of community benefit, the whole towncentre thing, there would be a struggling town centre city centre at one end and a big-box shopping centre with a department store at the other and [for] the community the net effect would be lower. (T:127; 30.11.12)
Mr Nuttall retail expert
Mr Nuttall is a retail expert witness called by the applicant. In October 2012, Mr Nuttall prepared a report for Atlas Point Pty Ltd which assessed the viability of a potential department store within the Bunbury CBD. Having developed a range of potential development scenarios, Mr Nuttall concluded that none of the locations assessed were financially viable. In addition to the issue of financial viability, he identified a number of other constraints in the CBD, which included dealing with multiple landowners; the displacement of existing businesses; road closures/realignments; and possible poor building design outcomes, all premised, in any event, on the willingness of a department store to select the Bunbury CBD as the location for a store.
At the hearing, Mr Nuttall raised concerns with the figures provided in the analysis of CBD development costs that were provided by Mr Rumbold. While the majority of the cost differences between them were in the construction cost assumptions, Mr Nuttall submitted that there were a number of nonconstruction items that were omitted from Mr Rumbold's analysis. He argued, for example, that there was no allowance for the payment of tenant incentives or for agents' fees in relation to lettings for the new complex, and there had also been no allowance made for the acquisition of the City's carpark.
Mr Bownes architect
Mr Bownes, an architect called by the applicant, gave evidence in regard to work he had undertaken in assessing possible locations within the Bunbury CBD for a proposed department store. Based on his assumptions, Mr Bownes identified the need for a site of some 18,000 square metres to accommodate a department store and the associated specialty stores and car parking. Under crossexamination, Mr Bownes conceded that this figure could be reduced to 16,230 square metres. However, this did not change his original conclusion that 'no parcels of this size currently exist[ed] in the Bunbury CBD without the need for permanent road closure' (witness statement, paragraph 6.3).
Mr Bownes had prepared various conceptual scenarios for four potential sites within the CBD, but concluded that each suffered from deficiencies which did not affect the Bunbury Forum site, and that he did not believe 'any of the scenarios for a Department Store development in the Bunbury CBD to be realistic compared to the Bunbury Forum Proposal' (witness statement, paragraphs 7.8 and 9.1).
Mr Collins quantity surveyor
Mr Collins, a quantity survey, was an expert witness called by the applicant to provide evidence as regards the estimates that he had prepared for the applicant, in regard to both the proposed development at Bunbury Forum and as to various building scenarios in the Bunbury CBD.
Mr Collins raised a number of queries in terms of the construction cost assumptions provided by Mr Rumbold. These included the square metre rates applied to car parking costs and the omission of a number of what he saw as required ancillary items. These omissions included allowances for piling, given the subsoil conditions in Bunbury, façade upgrades and the travelators and lifts which would, in his view, be required in such a development. Mr Collins also suggested that a CBD development would probably cost slightly more in terms of square metre rates relative to building costs at Bunbury Forum. This arose from the complexities of providing for storage areas, 'laydown' areas, truck access areas, and the likely requirement for tower cranes in the CBD.
Ms Gartrell planner
Ms Gartrell is a planning manager at the Department of Planning's Bunbury office and was called by the respondent. She gave evidence that the ACGB Policy is an 'endorsed' policy of the Commission, and that the Policy was concerned with the distribution, function, broad land use and urban design criteria of activity centres, and with coordinating their mixed land uses and infrastructure planning.
Ms Gartrell submitted that the ACGB Policy stipulates that the Bunbury CBD is the highest order centre in the hierarchy and that Table 2 of the Policy 'specifies "Department Stores" as being a typical retail type[,] only permitted in the Bunbury CBD' (witness statement, paragraph 14).
Ms Gartrell argued that 'the location of a department store outside of the CBD has the potential to undermine the activity centre hierarchy and the policy objectives' of the ACGB Policy (witness statement, paragraph 16). The potential impacts could include 'relocation of some retailers, especially national chains, to the Forum' (witness statement, paragraph 17). In addition, Ms Gartrell submitted that '[a] regional service (department store) at the Bunbury Forum [would] therefore also undermine the purpose of the '[R]regional Centre' zoning as defined in the GBRS' (witness statement, paragraph 20).
Ms Gartrell also raised the requirement under the ACGB Policy for a structure plan to be prepared prior to any approval of 'major development', and noted the additional requirement under the Policy to address the relevant requirements of the Liveable Neighbourhoods 2007 Policy. In her view, neither of these additional requirements had been addressed in the current application.
Ms Gartrell therefore concluded that approval 'should not be given [by the Tribunal] because it will undermine the hierarchy of the shopping centres and undermine the function of the city' (T:118; 30.11.12).
Mr Caddy planner
Mr Caddy, the Managing Director of TPG, was an expert planning witness called by the applicants. TPG was responsible for lodging the development application the subject of this review.
Mr Caddy gave evidence that the ACGB Policy was an operational policy of the Commission rather than a State planning policy, and was intended to provide guidance to both applicants and regulators in assessing proposals before the Commission. In this context, Mr Caddy argued that while a department store was listed as a typical use for the Bunbury CBD, there was actually 'nothing within Table 2 of the [ACGB Policy] generally that suggests that department stores are prohibited elsewhere' (witness statement, page 11).
Mr Caddy submitted that '[t]he issue of the proposed development undermining the activity centre hierarchy will only arise if there is an existing department store within the Bunbury CBD or there are reasonable prospects of such a department store commencing operations within the CBD in the foreseeable future' (witness statement, page 15). He reiterated the applicants' submission that 'there is no suitable land within the CBD that is available for a department store to be developed' (witness statement, page 15) and that '[t]he reliance upon the policy in this case to achieve a department store in the CBD is misconceived as the policy is based on a false assumption that an outcome in accordance with the policy is possible' (witness statement, page 18).
Mr Caddy conceded that while the urban design analysis, the traffic impact statement and the retail sustainability analysis which accompanied the development application did not constitute a full activity centre structure plan required by the ACGB Policy, he argued that these documents acknowledged the principles of activity centres. In terms of the ACGB Policy requirement for there to be a mix of land uses, he submitted that it is 'within the Tribunal's discretion to grant approval even if the target was not met' (witness statement, page 21). Mr Caddy also addressed the issue of recognising the Liveable Neighbourhoods 2007 Policy.
Mr Caddy concluded that 'the likelihood of a department store being able to be established in the CBD is nil' (witness statement, page 29) and there was, in his view, 'a net benefit to the community in having a department store established in the municipality of the City of Bunbury' (witness statement, page 18).
Mr Caddy's supplementary witness statement of 29 November 2012 raised the potential impact of a department store being established in Mandurah. An Activity Centres Planning Strategy endorsed by the City of Mandurah in October 2012 was premised on attracting such a store to Mandurah. Such a development would, in Mr Caddy's view, 'have a dramatic impact on any possibility of an operator locating in the CBD of Bunbury' (T:144; 30.11.12).
Mr Karaszkewych City's planner
Mr Karaszkewych, the Director of Planning and Development Services at the City, was an expert witness called by the respondent. Mr Karaszkewych was responsible for the preparation of the officers' report to the City which recommended refusal of the application the subject of this review under TPS 7. Mr Karaszkewych was also the author of a report entitled 'Investment Ready Department Store Location Analysis', which identified a number of potential sites for a department store in the Bunbury CBD.
Messrs Levey and Gick traffic
There was little in dispute between the two expert traffic witnesses. These experts were, Mr Gick, called by the respondent, and Mr Levey, called by the applicant.
Both expert witnesses had assessed the movement, transport and car parking issues associated with a number of potential department store sites within the CBD. They agreed that any, and indeed all, of the identified sites 'would require onsite and offsite transport infrastructure upgrades to accommodate vehicles, pedestrians and public transport to service the site and [to] address the impacts on surrounding areas' (joint witness statement, paragraph 17).
Analysis and findings
Having visited the two competing sites and their surrounds, and having carefully analysed and considered the extensive evidence that we have received in the review, the Tribunal is satisfied, for the reasons which appear below, as to the following matters:
1)At present, there is unlikely to be any realistic prospect of a large department store being established anywhere in Bunbury in the foreseeable future. This period may extend out as far as five years: see, for example, the evidence of Mr Cuzens set out above (referring to the advice that he had received as at May 2012 from a major department store operator) and the evidence on the same point, which was consistent with this position, from Mr Dimasi.
2)From the current viewpoint of any potential commercial department store operator, if and when a store were to be established in Bunbury, the existing Bunbury Forum site would be likely to be the most attractive potential site for the establishment of such a store: on this point, see the concessions made by Mr Rumbold, referred to above in the summary of his evidence, in relation to the practical limitations of applying the aspirations of the current policy framework. Further, there is the evidence of Mr Collins, which was that the construction costs were likely to be higher within the Bunbury CBD than at Bunbury Forum. He was not relevantly contradicted on this aspect of his evidence.
3)Speculation on any 'alternative' or competing site for a department store to be found in Mandurah, a possibility which was raised by some witnesses, carries next to no weight in relation to the critical issues concerning Bunbury which are actually before the Tribunal.
4)At present, the Bunbury CBD has a number of evident, site-specific limitations (which include the need to 'reorganise' access, car parking and traffic flow; potential difficulties in integrating into or with existing commercial operations; and the limited number of available sites of an appropriate size within the retail core of the CBD). The logistics and the public and private costs of overcoming these restrictions or impediments are likely to be not inconsiderable: see, for example, the evidence of Mr Bownes, referred to above, on the 'deficiencies' of the CBD area which did not affect the Bunbury Forum site. We have already drawn attention to the related concessions made by Mr Rumbold on this issue (see paragraph 2 above).
5)If a department store were to be eventually established, other than in the Bunbury CBD, there would be a net negative economic effect (in terms of diminished retail activity) on commercial/business activity in the CBD. This net negative effect could be initially in the range of 9% to 15%: see the relevant estimates in this area of somewhat imprecise 'science' found in the respective evidence of Messrs Rumbold and Dimasi, summarised above.
6)The extent of the negative economic and social impacts on the CBD was a key point of difference between these two experts. For present purposes, it is unnecessary to say which of these figures (that is, the lowest or the highest, or something else) is to be preferred. This is because, on any view, the impact could be fairly regarded as significant on a centre showing some signs of vulnerability, and the policy framework is predicated, at least in part, upon preventing the risk of such an impact.
7)There is also a consequential and related concern about the general undermining of confidence in the retail future of the CBD and its ensuing effects: see, for example, the evidence of Mr Rumbold, summarised above. Such a loss of confidence may well start from around the time that any announcement were to be made that the published goal of siting a department store in the CBD had effectively been abandoned.
8)The regional planning framework is soundly based on providing an activity centre hierarchy, the theory of which is wellestablished in planning law and practice. Regulators are entitled to establish such goals. Thus, the notion that the Bunbury CBD could be identified as having, in effect, presumptive priority in terms of relevant development is a logical and rational planning goal. This is so, notwithstanding that there may be short- to mediumterm site specific limitations concerning the CBD that appear to hinder the effective implementation of this goal. However, we can assume that such matters would have been well-known to both the authors of, and the organisations issuing, such policies.
9)In short, the relevant, specific planning framework with which we are presently concerned seeks to enhance longer term planning for both the City and the wider region, partly to prevent the potential damage to the CBD's economic activity by competing development occurring outside the CBD which may undermine the hierarchy of identified centres.
10)Any development decision of any relevant decisionmaker (including the Tribunal) must acknowledge these firm, soundly-based planning and policy goals but, absent any statutory prohibition, regard must also be had to matters of commercial likelihood and any 'on the ground' practical limitations (if significant).
Conclusions
Weighing all of these matters, the Tribunal has concluded that, absent a firm commitment to develop a major department store by a relevant operator, and given the likelihood that no such store would be, in any event, established anywhere in Bunbury in the foreseeable future (nor, it seems, in the medium term), and further given the potentially adverse impacts on Bunbury CBD retailing activity if planning approval were to be given, we are not satisfied that, at present, a sufficient case has been made out for what must be seen, on any view, as a significant departure from the planning framework, a departure that would not only deviate from two critical policies but would also tend to undermine the regional zoning of the CBD site. And this is so notwithstanding the currently acknowledged CBD sitespecific constraints.
As is well understood, the public planning process includes resolving these lastmentioned issues so that the legitimate aspirations found in the planning framework may be translated into reality. This is at the heart of orderly and proper planning. Thus, we respectfully do not accept Mr Caddy's view 'that an outcome in accordance with the policy is [not] possible'.
In the circumstances then, this case is not about the decisionmaker and this Tribunal 'inflexibly' applying planning policy. It is more a case where the factors and extensive material put forward by the applicant to date, which have been carefully considered, do not negate the wellrecognised presumptive authority of soundly based, transparent and directly applicable planning policies aimed at a wider public interest and reflected in the planning framework. As was recognised by this Tribunal in Hawkins and City of Joondalup [2008] WASAT 64 at [38] [39]:
… it is axiomatic that modern planning laws contain many restrictions 'which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)': Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:
[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws.
CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992), emphasis added. So too, Jacobs J in Church of England Collegiate School of St Peter v St Peters Town Council (No 2) (1990) 71 LGRA 309 at 312 (emphasis added):
Planning law is essentially for the protection of the public interest and restricts private rights only to the extent necessary to protect the public interest as expressed in the [planning framework].
In our view, the Tribunal ought not to undermine that framework unless, say, in a future case, it was demonstrated, for example, that despite the apparent optimism of the City's officers, in fact, no substantial progress had been, or could be, made on resolving these site-specific constraints in the CBD, and a firm commitment by a major department store operator emerged. Such circumstances, which are illustrative only, and which are very different from those found in the present case, might well result in an approval being given for a nonCBD department store to be established at, say, Bunbury Forum.
Orders
For the reasons given above, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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