AUSTGOLD HOLDING PTY LTD and TOWN OF VINCENT
[2007] WASAT 70
•26 MARCH 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AUSTGOLD HOLDING PTY LTD and TOWN OF VINCENT [2007] WASAT 70
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 15 DECEMBER 2006
DELIVERED : 26 MARCH 2007
FILE NO/S: DR 300 of 2006
BETWEEN: AUSTGOLD HOLDING PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning – Approval to commence development – Cashinlieu contribution for car parking shortfall – Fairness in imposing planning conditions – Change of use
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(b)
Town of Vincent Planning and Building Policy Manual, policy 3.7.1
Town of Vincent Town Planning Scheme 1, cl 13(2), cl 38(5)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant: Mr Geoffrey Woon (Acting as Agent)
Respondent: Mr R Rasiah (Acting as Agent)
Solicitors:
Applicant: Austgold Holdings Pty Ltd
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Hill v State Planning Commission (1994) 10 SR (WA) 354
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Town of Vincent to impose a cash‑in‑lieu contribution of $44 772 for the equivalent value of 17.22 car parking spaces for a change of use from "Shop and Take Away Food Outlet" to "Shop, Take Away Food Outlet and Eating House".
The Tribunal examined the relative arguments of the parties, the background to previous approvals, legislative and policy provisions, an alternative calculation for assessing the cash‑in‑lieu contribution and the matter of "fairness" in imposing planning conditions
The Tribunal believed that the alternative contribution of $18 655 for a car parking shortfall of 7.175 bays was fair and reasonable.
The application for review was upheld.
Introduction
The application for review, dated 7 September 2006, was lodged by Mr Geoffrey Woon for Austgold Holdings Pty Ltd (applicant) against a decision of the Town of Vincent (respondent) on 8 August 2006 to conditionally approve a change of use from "Shop and Take Away Food Outlet" to "Shop, Take Away Food Outlet and Eating House" at No 566 – 570 Beaufort Street, Mount Lawley.
The application was made under s 252(1) of the Planning and Development Act 2005 (WA) and specifically related to condition (ii) of the approval:
"(ii)prior to the issue of the Building Licence or first occupation of this development, whichever occurs first, the applicant/owner shall pay a cash‑in‑lieu contribution of the equivalent value of 17.22 car parking spaces, based on the construction cost of $2,600 [sic] per bay as set out in the Town's 2005/2006 Budget. Alternatively, if the car parking shortfall is reduced as a result of a greater number of car bays being provided, the cash in lieu [sic] amount can be reduced to reflect the new changes in car parking requirements;"
Subject land
The subject land can be described as No's 566 – 570 (Lot 6) on Diagram/Plan No 692 at the corner of Beaufort Street and Clarence Street, Mount Lawley. It has an area of 549 square metres.
The site is located on the east side of Beaufort Street and there is a 3.02 metre wide sealed right‑of‑way at the rear which is vested in the Town.
Legislative framework
The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "commercial" in the Town of Vincent Town Planning Scheme No 1 (TPS 1).
A "shop" and "eating house" are "P" uses in the "commercial" zone whilst a "take away food outlet" is an "unlisted use" which is covered by cl 15 of TPS1. A "P" use is described under cl 13(2) of TPS 1 as a:
"… use permitted by the Scheme;"
Of relevance in this matter is the Town of Vincent Planning and Building Policy Manual as it relates to "Parking and Access" (Policy No 3.7.1).
Respondent's position
The respondent's position is outlined in its Statement of Issues, Facts and Contentions, dated 11 October 2000. The respondent argues:
(a)In exercising its jurisdiction, the Tribunal is required to consider whether the car parking requirements have been satisfied in accordance with Policy No 3.7.1 relating to parking and access, including the calculation of cash‑in‑lieu contribution.
(b)the applicant's argument for a shortfall of 7.125 car bays is unsubstantiated and does not reflect the shortfall applying to the subject land.
(c)Condition (ii) relating to the shortfall of 17.22 car bays and the cash‑in‑lieu contribution of $44 772 is consistent with the Town's calculation of car parking applying to the site, based on the current and proposed approved uses and in accordance with Policy No 3.7.1.
Applicant's position
The applicant's position is outlined in its Statement of Issues, Facts and Contentions, dated 20 October 2000. The applicant argues:
(a)The application for the change of use is only for the shop comprising No's 568 and 570. The shop on No 566 was already approved as an "eating house" on 22 August 2000.
(b)If the applicant did not submit the application for a change of use, the shop at No 566 would still operate as an "eating house" and the shop at No's 568 and 570 would still operate as a food outlet serving breakfast, lunch and dinners. There would be no cash‑in‑lieu payment required.
(c)The first calculation by Council officers estimated a shortfall of 7.175 car bays. This equates to $18 655 cash‑in‑lieu and is acceptable.
(d)The second calculation by Council officers estimated a shortfall of 17.22 car bays. This equates to $44 772 cash‑in‑lieu and is a harsh, excessive and unreasonable figure.
(e)The "eating house" at No 566, which was approved on 22 August 2000, should not be lumped with No's 568 and 570; particularly as the only on‑site intensification is the addition of 50 square metres of dining room.
Planning issues
The principal planning issues are:
(a)Was the calculation of cash‑in‑lieu in this case in accordance with Policy No 3.7.1?
(b)Was the calculation of cash‑in‑lieu fair and reasonable in this case?
Assessment of proposal
Background
Based on the information contained in the report to the Ordinary Meeting of Council (OMC) of 11 December 1995, the following points are made:
(a)The application at that time was for an additional use (local shop) only to an existing pizza bar at No's 568 – 570.
(b)The addition (local shop) was estimated at 40.5 square metres and was intended to be subservient to the predominant use (pizza shop) at 49.5 square metres. All modifications proposed were internal.
(c)There was a shortfall of 4.5 car bays, which equated to $27 000 cash‑in‑lieu ($6000 per bay).
(d)The recommendation, which included the $27 000 cash‑in‑lieu contribution as a condition of approval, was approved by Council.
On 26 May 1997, the Council approved a change in use from "eating house" to "shop (second‑hand goods)" at No 566.
At the OMC on 22 August 2000, a proposal to revert the shop at No 566 to "eating house" was approved, subject to conditions. The report explained:
(a)The eating house would comprise 70 square metres of public area.
(b)There was a total shortfall of 6.75 car bays.
Based on the information before the Tribunal, it appears that the change of use from "shop" to "eating house" was approved subject to conditions. These conditions did not include a cash‑in‑lieu payment for the car bay shortfall, and it is assumed that none was paid.
At the OMC on 9 May 2006, a proposal to change the use from "shop" and "take away food outlet" to "shop and take away food outlet and eating house" at No's 568 – 570 with associated alterations and additions was considered. The report explained:
(a)The proposal involved the rear part of the existing tenancy at No 568 being included in the tenancy of No 570.
(b)The alterations and additions were to include internal modifications and the addition of two (2) female toilets, two (2) male toilets, one (1) disabled toilet, a staff toilet and associated storage at the rear of the property.
(c)There was a shortfall of 7.175 car bays which at $2600 per car bay equated to a cash‑in‑lieu contribution of $18 655.
The decision taken was that:
"the item be DEFERRED to recalculate the cash‑in‑lieu contribution."
At the OMC of 27 June 2006, the matter was again considered but on the basis of a new calculation of the shortfall in car bays and a consequential adjustment to the cash‑in‑lieu contribution. The report advised:
(a)The shortfall in car bays is 17.22 car bays which at $2600 per car bay equates to a cash‑in‑lieu contribution of $44 772, and not $18 655 as previously calculated.
The decision taken was:
"That the item be DEFERRED as requested by the applicant."
At the OMC of 8 August 2006, the report to Council advised:
(a)In accordance with policy, as the subject land is one lot (Lot 6) and not strata titled, the car parking calculation is based on the different land uses on No's 566, 568 and 570.
(b)The previous cash‑in‑lieu contribution of $27 000 as part of the 11 December 1995 approval was not paid.
The decision taken on 8 August 2006 was to approve the proposed change of use from "shop and take away food outlet" to "shop, take away food outlet and eating house and associated alterations and additions". The approval included a condition (ii) requiring a cash‑in‑lieu contribution of $44 772, which is now the subject of this review.
Legislative and policy provisions
Clause 38(5) of TPS 1 states:
"Without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to –
(a)the provisions of this Scheme …
(b)any relevant planning policy …"
Under Policy No 3.7.1, the following broad provisions apply to cash‑in‑lieu:
(a)Cash‑in‑lieu is to be considered where non‑residential developments have a shortfall of parking.
(b)Cash‑in‑lieu provisions are only permitted where the Town already provides off‑street public car parking which has spare capacity, or the town is proposing to provide, or is able to provide (including enhanced or additional on‑street car parking where appropriate) in the near future, within 400 metres of the subject development.
(c)In the case of any other development (including a change of use), the shortfall is to be calculated as the difference between the number of bays proposed and the number of bays required by the Land Use Requirements Table, and modified by an appropriate adjustment factor (if applicable) and reduced by an amount equal to any existing shortfall similarly calculated.
(d)The amount of cash‑in‑lieu is to be calculated at the rate determined annually by Council.
(e)The applicant may enter into an agreement with the Town to pay the cash‑in‑lieu by quarterly instalments over a period not exceeding five (5) years.
(f)The contribution is to be held in a Trust Fund for the purpose of providing and/or upgrading existing and proposed public parking facilities.
(g)In the event that the Town does not utilise the cash‑in‑lieu funds for additional parking within 10 years of receipt of the final amount, the Town shall refund the monies to the applicant.
(h)At the discretion of the Town, the applicant may apply for parking passes for the free and unlimited use of car spaces within the car park in which the contribution has been used for.
The car parking calculations
In the report to the OMC on 9 May 2006, the car parking calculations were made in accordance with Policy No 3.7.1 as outlined in [26(c)] above. The calculations resulted in the following:
| (a) Car parking requirement (nearest whole number): • Existing Eating House (No 566) One (1) car bay per 4.5 square metres of public area (74.7 square metres) = 16.6 car bays • Existing Take Away Food Outlet (No 588) One (1) car bay per 2.5 square metres of queuing area (31.4 square metres) = 12.56 car bays • Proposed Eating House (Nos 568 – 570) One (1) car bay per 4.5 square metres of public area • (87.48 square metres) = 19.44 car bays | 49 | |
| (b) Application of adjustment factors • Within 400 metres of a bus stop = 0.85 • Within 400 metres of one or more existing public car parking place(s) in excess of 50 car parking spaces = 0.90 • Adjustment factor (0.90 x 0.85) = 0.765 | ||
| (c) Revised car parking requirement (49 x 0.765) = 37.485 | 37.485 | |
| (d) Minus four (4) car parking bays provided on‑site (as shown on plans) | 33.485 | |
| (e) Minus recently approved on‑site car parking shortfall (with adjustment factors) | 26.31 | |
| • Existing Eating House (No 566) • Existing Take Away Food Outlet • 29.16 x 0.765 (adjustment factor) • Plus four (4) on‑site car bays | = 16.60 bays = 12.56 bays 29.16 bays = 22.31 bays = 26.31 bays | |
| (f) Resultant parking shortfall (33.485 – 26.31) = 7.175 bays | 7.175 |
By applying a figure of $2600 per bay, the cash‑in‑lieu contribution equates to $18 655.
Of relevance in these calculations is that the car parking requirements are based on the whole of Lot 6 (No's 566, 568 and 570) and include both existing and proposed land uses.
After applying the relevant adjustment factors and car parking provision, and reducing the number of car bays still further by the car bays relating to existing land uses the resultant shortfall, in its very broadest sense, represents the number of bays required for the proposed new "eating house" at No's 568 – 570. This number is 7.175 bays.
In the report to the OMC on 8 August 2006, a recalculation of the parking shortfall was made. The new calculations resulted in the following:
| (a) Car parking requirement (nearest whole number): • Existing Eating House (No 566) One (1) car bay per 4.5 square metres of public area (70.0 square metres) = 15.55car bays • Proposed Take Away Food Outlet (No 588) One (1) car bay per 2.5 square metres of queuing area (31.4 square metres) = 12.56 car bays • Proposed Eating House (Nos 568 – 570) One (1) car bay per 4.5 square metres of public area (87.48 square metres) = 19.44 car bays | 48 |
| (b) Application of adjustment factors • Within 400 metres of a bus stop = 0.85 • Within 400 metres of one or more existing public car parking place(s) in excess of 50 car parking spaces = 0.90 • Adjustment factor (0.90 x0.85) = 0.765 | ||
| (c) Revised car parking requirement (48 x 0.765) = 36.72 | 36.72 | |
| (d) Minus four (4) car parking bays provided on‑site (as shown on plans) | 32.72 | |
| (e) Minus recently approved on‑site car parking shortfall (with adjustment factors) | 15.50 | |
| • Existing Eating House (No 566) • Additional Shop to existing Pizza Bar Shop (Nos 568 – 570) • 25.5 x 0.765 (adjustment factor) • Minus four (4) on‑site car bays | = 15.5 bays
25.5 bays = 19.5 bays = 15.5 bays | |
| (f) Resultant parking shortfall (32.72 – 15.50) | 17.22 | |
The principal differences between the two calculations are that under the recalculation considered by Council on 8 August 2006:
(a)The public area of the existing eating house at No 566 is shown as 70.0 square metres and not 74.7 square metres.
(b)The take away food outlet at No 568 is referred to as "proposed" and not "existing".
(c)The four (4) on‑site car bays under (e) are calculated mathematically as a minus, rather than a positive as occurred under (e) in the original calculation considered at the OMC of 9 May 2006.
(d)The recently approved on‑site car parking shortfall for the existing eating house (No 566) is shown as 15.5 bays under (e), but shown as 15.55 bays under (a),
(e)There is no assessment of the take away food outlet as a separate entity under (e), whereas it was considered as such under (e) in the original calculation considered at the OMC of 9 May 2006.
The principal difficulty the Tribunal has with the recalculation, is that it introduces in [31(e)] above a parking shortfall of 10 car bays relating to an additional shop at No's 568 – 570 Beaufort Street. This calculation of 10 bays was made 11 years earlier under a different policy framework to Policy No 3.7.1 and where a "shop" required one (1) car bay per 15 square metres of gross floor area with a 10% adjustment factor if within 200 metres of a bus stop.
As stated in [26(c)], the method of calculating a parking shortfall under current policy is to calculate the difference between the number of bays proposed and the number of bays required and modified by an appropriate adjustment factor. The result is then reduced by an amount equal to any existing shortfall similarly calculated. The 1995 calculations were not made under the same calculation method as currently exists under Policy No 3.7.1.
In the view of the Tribunal, the method used in the recalculation of the parking shortfall on 8 August 2000 is basically (and mathematically) flawed, and is now put to one side for the purposes of the review.
The matter of "fairness" – planning conditions
The question of "fairness" in imposing a planning condition was addressed in Hill v State Planning Commission (1994) 10 SR (WA) 354 where it stated that planning conditions:
"1.must fairly and reasonably relate to the development;
2.must be reasonably capable of being regarded as relevant to the implementation of planning policy;
3.may not be so unreasonable that no reasonable planning authority could have imposed them;
4.cannot leave open the consideration of an essential element to another authority which may have the effect of altering the proposed development significantly."
On the matter of fairness, it appears that in 1995 the application for the additional use of a local shop to the existing pizza bar shop at No's 568 – 570 was lodged by a Mr Truong on behalf of Ho Soon Pty Ltd and approved subject to conditions; one of which was a cash‑in‑lieu contribution of $27 000 for a car parking shortfall. The monies, which were rightly due to the Council, were never paid.
In August 2000, an approval was granted to Mr G Woon, the current applicant, for a change of use from "shop" to "eating house" at No 566 Beaufort Street. Based on the car parking shortfall of 6.75 bays as outlined in the report to the OMC of 22 August 2000 a cash‑in‑lieu payment was required. There is no evidence before the Tribunal that it was, and it appears that Mr Woon may never have paid cash‑in‑lieu at all for any portion of Lot 6.
As argued by Mr Woon at the hearing, the cash‑in‑lieu amount should only relate to the parking shortfall as a result of the current application for the new eating house at No's 568 – 570 Beaufort Street.
As explained at [30], the calculation of a parking shortfall of 7.175 bays does in fact do that and meets the criteria in [36] in that it fairly and reasonably relates to the development, is relevant to the implementation of current planning policy and, in the circumstances of this case, a cash‑in‑lieu contribution of $18 655 could not be construed as unreasonable.
Conclusions
The application for review was lodged by Mr G Woon against a decision of the Town of Vincent to impose a condition on the proposed change of use from "Shop and Take Away Food Outlet" to "Shop, Take Away Food Outlet and Eating House" on Lot 6 Beaufort Street, Mount Lawley. The condition required a cash‑in‑lieu payment for a shortfall in car parking bays of $44 772.
In his submissions to the Tribunal, Mr Woon argued for a lesser amount of $18 655 which had previously been assessed by officers in their report to Council.
In undertaking this review, the Tribunal examined the relative positions of the applicant and the respondent together with the background to previous approvals extending back to 1995, the current legislative and policy provisions, the two alternative calculations for car parking shortfall for cash-in-lieu contributions and the matter of "fairness" in imposing planning conditions.
On the subject of car parking in the immediate locality, the Tribunal had before it a written statement by Mr Jens V Jorgensen, dated 6 November 2006, in which he outlined the current parking problems in Clarence Street and his contention that the amount of cash‑in‑lieu requested by Council "was on the light side".
The Tribunal accepts that parking in this locality is a problem and supports the principle of cash‑in‑lieu when it is not possible, as in this case, to meet parking requirements on the land as a result of development or change in land use.
What is of concern to the Tribunal is that there were opportunities to collect cash‑in‑lieu in 1995 and 2000 for approvals granted on the subject land and it appears, at least in the first instance and possibly in both instances, that these opportunities were not taken. If monies had been collected it may well have given rise to a different decision in this case.
In its assessment of the two alternative calculations for car parking shortfall, the Tribunal had before it the officer reports to the Ordinary Meetings of Council in May, June and August 2006. In the May submission, the methodology used to calculate a car parking shortfall of 7.175 bays was in accordance with Policy No 3.7.1 and, in the broadest sense, did represent the number of bays required for the new "eating house".
On the other hand, the method of calculation in the June and August reports were not entirely in accordance with current Policy No 3.7.1 because of a recourse to the 1995 calculations which were very different and based on alternative criteria.
As a consequence, the methodology in these later calculations were basically (and mathematically) flawed in relation to Policy No 3.7.1, and were put to one side for the purposes of the review.
In the view of the Tribunal, and having regard to the circumstances of this case, a cash‑in‑lieu contribution of $18 655 for a car parking shortfall of 7.175 bays does fairly relate to the development itself, is relevant to current policy and could not be construed as unreasonable.
The Tribunal is prepared to uphold the application for review on the basis that the respondent's calculation of cash‑in‑lieu was not entirely in accordance with the requirements of Policy No 3.7.1 and that the calculation of a cash‑in‑lieu figure of $44 772 was, as a consequence, not justified.
The application for review is upheld in accordance with variations to condition (ii) of the respondent's conditional approval of 15 August 2006 being modified to:
"(ii)prior to the issue of the Building Licence or first occupation of this development, whichever occurs first, the applicant/owner shall pay a cash‑in‑lieu contribution of $18 655 for the equivalent value of 7.175 car parking spaces, based on the construction cost of $2600 per bay as set out in the Town's 2005/2006 Budget. Alternatively, if the car parking shortfall is reduced as a result of a greater number of car bays being provided, the cash‑in‑lieu amount can be reduced to reflect the new changes in car parking requirements;"
Orders
For the foregoing reasons, and in accordance with s 29(3)(b) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
1.The application for review is upheld in accordance with variations to condition (ii) of the respondent’s conditional approval of 15 August 2006 being modified to:
"(ii)prior to the issue of the Building Licence or first occupation of this development, whichever occurs first, the applicant/owner shall pay a cash‑in‑lieu contribution of $18 655 for the equivalent value of 7.175 car parking spaces, based on the construction cost of $2600 per bay as set out in the Town's 2005/2006 Budget. Alternatively, if the car parking shortfall is reduced as a result of a greater number of car bays being provided, the cash‑in‑lieu amount can be reduced to reflect the new changes in car parking requirements;"
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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