AUTO MASTERS AUSTRALIA PTY LTD and CITY OF KWINANA
[2023] WASAT 39
•2 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AUTO MASTERS AUSTRALIA PTY LTD and CITY OF KWINANA [2023] WASAT 39
MEMBER: MS C BARTON, MEMBER
HEARD: 20 AND 21 FEBRUARY 2023
DELIVERED : 2 JUNE 2023
FILE NO/S: DR 86 of 2022
BETWEEN: AUTO MASTERS AUSTRALIA PTY LTD
Applicant
AND
CITY OF KWINANA
Respondent
Catchwords:
Town planning - Development application - Motor repair service centre - Service station - Service trade - Master Plan - Status of Master Plan - Weight to be afforded to Master Plan - Generally in accordance with - Main street design principles - Orderly and proper planning - Visual amenity - Amenity of the locality - Desired future amenity of main street - Noise - Condition limiting time for approval
Legislation:
Interpretation Act 1984 (WA), s 5
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 77, Sch 2, cl 67(2), cl 67(2)(a), cl 67(2)(n), cl 72
Planning and Development Act 2005 (WA), s 3(1)(c), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Town of Kwinana Local Planning Scheme No 2, Appendix II
Town of Kwinana Town Planning Scheme No. 3, cl 1.4, cl 1.4(c), cl 1.6, cl 1.6(a), cl 1.8, cl 2.1.1, cl 2.1.2, cl 2.2.4, cl 2.3.4, cl 3.1.1, cl 3.1.1.1, cl 4.1, cl 4.2, cl 4.2.2, cl 4.2.3, cl 4.2.4, cl 4.5, cl 4.5.2, cl 4.5.7, cl 4.5.7.1
Result:
Application for review dismissed
Respondent's decision affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489
Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500
City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61
Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 133
Grace and City of Nedlands [2010] WASAT 53
Johnson v The Minister for Planning [2018] WASC 334
Kelmscott Central Pty Ltd and City of Karratha [2020] WASAT 116
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Mohammadi and Bethune [2018] WASCA 98
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Scutti v City of Wanneroo [2018] WASCA 175
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 29
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Auto Masters Australia Pty Ltd (applicant), seeks approval to construct a motor repair service centre (proposed development) on a portion of No 4 (Lot 89) Chisham Avenue, Kwinana Town Centre (subject land). The respondent is the City of Kwinana (respondent or City).
On 25 May 2022, the applicant commenced proceedings in the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) following the respondent's deemed refusal of the proposed development.
On 29 June 2022, following mediation, the Tribunal invited the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 28 September 2022, the Council of the respondent (Council) resolved to refuse the proposed development for the following reasons:[1]
1.The built form of the development is inconsistent with main street design principles of a continuous edge to Chisham Avenue.
2.The siting of the development is prejudicial to future development in accordance with main street design principles set out in the Kwinana City Centre Master Plan.
3.The development will detract from the visual amenity of users of the road and the footpath along Chisham Avenue.
[1] Notice of determination dated 4 October 2022. Respondent's s 24 bundle of documents (Respondent's s 24 bundle) dated 25 November 2022, page 172, Exhibit 3.
I have concluded, for the reasons that follow, that the application for review should be dismissed and the respondent's decision to refuse the proposed development affirmed.
The issues for determination
The following key issues arise for determination by the Tribunal:
1.Is the proposed development capable of approval under the Town of Kwinana Town Planning Scheme No. 3 (Town Centre) (LPS 3 or Scheme) and does it satisfy the requirements of the Scheme?
2.Is the design of the proposed development consistent with the Kwinana City Centre Master Plan (Master Plan) and the principles of good design applicable to an urban centre?
3.What weight, if any, should be given to the Master Plan in the determination of these proceedings?
4.Would it be consistent with orderly and proper planning to grant approval to the proposed development?
5.Will the proposed development have an adverse impact on the amenity or desired future amenity of the locality?
Conduct of the proceedings and witness evidence
The Tribunal heard expert evidence from two urban designers, Ms Shannon O'Shea, a director of Hames Sharley, and Mr Malcolm Mackay, a director of Mackay Urban Design, both called on behalf of the respondent. Ms O'Shea and Mr Mackay filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were cross-examined.
The applicant also relied on the expert planning evidence of Mr Neil Teo, a director of Dynamic Planning and Development Pty Ltd, while the respondent relied on the expert planning evidence of Mr Paul Neilson, Manager Planning and Development, at the City. Both Mr Teo and Mr Neilson filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were crossexamined.
The Tribunal had the benefit of a site view of the subject land, and surrounds, which was attended by the parties' legal representatives and the expert witnesses. The site view commenced in the car park area of the Kwinana Marketplace shopping centre (shopping centre), where the subject land is situated, and from where we observed its location relative to the retaining walls adjacent to Chisham Avenue and the laneway which separates the shopping centre from adjoining land to the east (laneway). We walked westward along Chisham Avenue to just before the BP service station at the corner of Gilmore Avenue, and then returned to the subject land along Chisham Avenue, during which we compared the existing development with Google Street View images taken in December 2009. We also observed the ALDI car park entrance and walked past the ALDI development on the northern side of Chisham Avenue from where we viewed a new development fronting the street to the south, including an Indian grocer. We then returned to the subject land and proceeded by vehicle down the laneway to Challenger Avenue. We travelled in convoy north on Meares Avenue, past Darius Drive and then turned left onto Sulphur Road, where the site view concluded.
The proposed development
The proposed development is an Auto Masters service centre which provides motor vehicle servicing and minor mechanical repairs. It will be located in the shopping centre car park (car park) and comprise a single-storey building with five vehicle service bays, a waiting bay, office, reception area and amenities (building). The building will be setback to the northern Chisham Avenue boundary approximately 10.6 metres and built up to the eastern boundary laneway with a nil setback. The laneway provides access to existing commercial developments to the east.
Vehicular access to the proposed development will be via the car park.
Key aspects of the proposed development include:
1)The building will be situated at the level of the car park which is beneath the finished surface level of both Chisham Avenue and the adjacent laneway.
2)The elevated portions of the office and reception area, with high glazing and angular roof line, will sit proud in front of the workshop building component adjacent to the northern boundary to Chisham Avenue.
3)Landscaping is proposed in the areas abutting the office and reception area at the level of the car park and the finished surface level of Chisham Avenue. The proposed landscaping includes low lying shrubs and two new trees.
4)A feature art wall is proposed which will face the eastern elevation and the laneway. The feature art wall will be visible periodically on approach from the east to the proposed development while travelling westward along Chisham Avenue and along the laneway.
5)A total of 28 of the existing car parking bays will be removed to accommodate the proposed development, with the installation of traffic management signage and type 2 speed humps.
The subject land and the locality
The subject land is 323m2 in area and is wholly contained within the north-eastern most portion of the shopping centre car park and is currently utilised as carparking for the shopping centre.[2] The land on which the shopping centre is located is formally described as Lot 89 on Diagram 99721, being the whole of the land in Certificate of Title Volume 2503 Folio 641 (shopping centre land). The applicant proposes to lease a portion of the shopping centre land for the purposes of the proposed development.
[2] Respondent's statement of issues facts and contentions (Respondent's SIFC) dated 25 November 2022, para 41.
The subject land slopes down significantly, away from Chisham Avenue, towards the shopping centre from 2.2 metres to 1.1 metres, a fall of 1.1 metres to the edge of the subject land.[3] There is an existing stepped retaining wall to the northern boundary to Chisham Avenue and to the eastern boundary to the laneway. At its highest, the retaining wall is 3.07 metres above the car park level.[4]
[3] Witness statement of Neil Albert Teo dated 7 February 2023, para 12.
[4] Witness statement of Neil Albert Teo dated 7 February 2023, para 12.
Immediately to the north of the subject land is an existing ALDI supermarket, located at No 32 (Lot 5901) Meares Avenue, with access via formalised crossovers to both Chisham Avenue and Meares Avenue. Immediately to the east of the subject land is a laneway providing access to the shopping centre land and surrounding commercial uses, including a Vibe Service Station, Active 24-Hour Fitness and takeaway food establishments.
Segmented paving has been installed on Chisham Avenue to slow down traffic and signal that it is a place for pedestrians.[5]
The planning framework
[5] ts 55, 20 February 2023.
The subject land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Shopping/Business' under LPS 3.[6]
[6] Exhibit 8.
Clause 2.3.4 of LPS 3 provides that the objective of the 'Shopping/Business' zone is as follows:
To accommodate retail and commercial use and development necessary to meet the district level shopping needs of the community.
Part 3 of LPS 3 sets out general development requirements. Clause 3.1.1 of LPS 3 provides:
3.1.1Development shall be carried out incorporating the following principles:
3.1.1.1Building design and layout shall generally accord with the Kwinana Town Centre Design Guidelines adopted by Council (as amended from time to time) and Council shall have regard for the guidelines when assessing development proposals.
3.1.1.2Building setback shall be at the absolute discretion of Council (except in the case of residential development) and Council shall have regard for the following when approving setbacks:
(i)to ensure that no buildings are constructed over designated internal accessways which impede directly or indirectly vehicular or pedestrian movement along designated routes; and
(ii)Council has discretion to determine setbacks having regard to matters dealt with under the Kwinana Town Centre Design Guidelines, referred to in clause 3.1.1.1.
Pursuant to cl 4.1 of LPS 3, the Scheme zones are divided into Policy Precincts. The specific development requirements with respect to the Policy Precincts are set out in cl 4.2 of LPS 3.
4.2.1Council when considering proposals to use and develop land or buildings within precinct areas shall have regard to Table 1, stated Precinct Land Use Policies and Predominant Uses listed hereafter and also the Town Centre Strategy Plan, Scheme Area Policies and Scheme development requirements referred to in Part III of the Scheme. In the case of subdivision proposals, Council shall have regard to the Precinct Policies when making a recommendation to the Western Australian Planning Commission.
4.2.2Council may grant approval to uses and development or classes of uses and development not listed as Predominant Uses provided that Council is satisfied that the proposals are consistent with Precinct Land Use Policies.
4.2.3Council in considering proposals for uses not listed as Predominant Uses within a specific precinct shall have regard to uses listed as Predominant Uses in other precincts and shall be satisfied that approval does not undermine the viability or level of service of these Predominant Uses, whether existing or planned.
Clause 4.5 of LPS 3 deals with the 'Shopping/Business' zone. Clause 4.5.1 and cl 4.5.2 relevantly provide:
4.5.1The zone should generally accommodate and consolidate undercover convenience and comparison goods retail and other commercial core uses.
4.5.2Service commercial, bulk retail and service trades will not generally be supported unless Council is satisfied that such land use and development would be consistent with the orderly and proper planning of the Town Centre and the preservation of the amenity of the Town Centre.
In addition to the MRS and LPS 3, the relevant planning framework includes, but is not limited to, the following:
1)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations);
2)State Planning Policy 4.2 - Activity Centres for Perth and Peel (SPP 4.2);[7]
3)State Planning Policy 7.0 - Design of the Built Environment (SPP 7.0);
4)State Planning Policy 7.2 - Precinct Design (SPP 7.2); and
5)the Master Plan.[8]
[7] See also draft State Planning Policy 4.2 - Activity Centres, August 2020.
[8] Referred to in LPS 3 as the Town Centre Strategy Plan. The Town Centre Strategy Plan has undergone several iterations since the Scheme was gazetted on 18 August 1998.
In determining an application for development approval under LPS 3, I must have due regard to the matters listed under cl 67(2) of Sch 2 to the LPS Regulations (Deemed Provisions) to the extent, in my opinion, those matters are relevant to the proposed development the subject of the application.
Tribunal's consideration
Following mediation, the applicant filed with the Tribunal an amended application dated 4 August 2022, which in turn was amended on 16 August 2022.[9] A further amended plan was submitted on 7 September 2022.[10] The application dated 16 August 2022, together with the amended plan, form the basis of the proposed development which is the subject of the review proceeding.
[9] Respondent's s 24 bundle dated 25 November 2022, page 84, Exhibit 3.
[10] Respondent's SIFC dated 25 November 2022, para 46. Applicant's statement of issues, facts and contentions (Applicant's SIFC) dated 22 December 2022, para 5.
I will first consider whether the proposed development is capable of approval under LPS 3.
Is the proposed development capable of approval under LPS 3?
The subject land is located in the Retail Precinct of the Shopping/Business zone. The 'Predominant uses' in the Retail Precinct include a 'service station' but do not include a 'motor repair station'.[11] These use classes are not defined in LPS 3. However, they are defined in Appendix II to the Town of Kwinana Local Planning Scheme No. 2 (LPS 2)[12] as follows:
Motor Repair Station means land and buildings used for or in connection with mechanical repair and overhauls including tyre recapping, retreading, panel beating, spray painting and chassis reshaping.
Service Station means land and buildings used for the supply of petroleum products and automotive accessories and includes greasing, tyre repairs, and minor mechanical repairs.
[11] LPS 3, cl 4.5.7.
[12] LPS 2 applies to the whole of the land within the City of Kwinana except that area of land which forms part of the Kwinana Town Centre to which LPS 3 applies.
I am satisfied that the definitions of 'motor repair station' and 'service station' in Appendix II to LPS 2 inform the meaning of the same expressions in LPS 3 and I so find.
Where a proposal to use or develop land is not listed as a predominant use within a precinct area, it may be approved under LPS 3 if the respondent, and the Tribunal on review, is satisfied that the proposal is consistent with 'Precinct Land Use Policies'.[13] Further, in considering a proposal for a use not listed as a predominant use within a specific precinct, the respondent, and the Tribunal on review, must have regard to uses listed as a predominant use in other precincts and 'be satisfied that approval does not undermine the viability or level of service of these Predominant Uses, whether existing or planned'.[14]
[13] LPS 3, cl 4.2.2.
[14] LPS 3, cl 4.2.3.
By application dated 17 January 2022, the applicant sought approval for the proposed development on the basis that it was classed as a 'service station' under LPS 3. However, the respondent assessed the application as 'motor repair station'. Both a 'service station' and 'motor repair station' are 'AA' uses in the Shopping/Business zone and, therefore, those uses are not permitted unless approval is granted.[15] It is the applicant's position that the proposed development is capable of approval under LPS 3 as a 'motor repair station' and that the use is:[16]
1)consistent with Precinct's Land Use Policies for the purposes of cl 4.2.2 of LPS 3; and
2)not listed in another precinct as a predominant use and, therefore, does not undermine the viability or level of service of these predominant uses for the purposes of cl 4.2.3 of LPS 3.
[15] LPS 3, cl 2.2.4.
[16] Applicant's SIFC dated 22 December 2022, para 10 and para 11.
The parties ultimately agreed, and I find, that the proposed development is properly characterised as a 'motor repair station' under LPS 3 because it will not supply petroleum products. Consequently, I find that the proposed development is capable of approval under LPS 3. However, a 'motor repair station' is not a use that is listed as a predominant use in the Retail Precinct of the Shopping/Business zone and, therefore, I will next consider whether the proposed development satisfies the requirements of LPS 3.
Does the proposed development satisfy the requirements of LPS 3?
Whilst a 'service station' is listed in the Retail Precinct as a predominant use, a 'motor repair station' is not. Because the proposed development is not listed as a predominant use in the Retail Precinct or any other precinct, the applicant contends that it does not undermine the viability or level of service of the predominant uses in those other precincts for the purposes of cl 4.2.3 of LPS 3. The applicant further contends that having regard to the spectrum of uses between 'service station' and 'motor repair station', it is at the service station end in terms of the scope of mechanical works that are proposed.[17]
[17] ts 166, 21 February 2023.
The respondent, and the Tribunal on review, may grant approval to proposals for uses and development not listed as predominant uses in the Retail Precinct provided it is satisfied that the proposals are consistent with Precinct Land Use Policies.[18]
[18] LPS 3, cl 4.2.2.
The relevant Precinct Land Use Policies for the Shopping/Business zone are those listed in cl 4.5 of LPS 3. Relevantly, cl 4.5.1 provides that the zone should generally accommodate and consolidate undercover convenience and comparison goods retail and other commercial core uses. Also, cl 4.5.2 of LPS 3 relevantly provides that 'service trades' will not generally be supported in the Shopping/Business zone unless the respondent (and the Tribunal on review) is satisfied that such land use and development would be consistent with the orderly and proper planning, and the preservation of amenity, of the Kwinana Town Centre (Town Centre or City Centre).
The respondent contends that the proposed development is a 'service trade' for the purposes of cl 4.5.2 of LPS 3. In support of its position, the respondent relied on the evidence of Mr Neilson. In Mr Neilson's opinion, it is reasonable to classify a motor repair station as a 'service trade'.[19] Mr Teo agreed that the servicing of motor vehicles would be a 'service trade-type use'.[20]
[19] Witness statement of Paul Neilson dated 3 February 2023, para 55; ts 136-137, 21 February 2023.
[20] ts 136, 21 February 2023.
Whilst the expression 'service trade' is not defined in LPS 3, a 'trade' is defined in the Macquarie Dictionary Online as:
a skilled occupation, especially one requiring manual labour[.]
'Service' is defined in the Macquarie Dictionary Online to include, relevantly:
the providing of, or provider of, any articles, commodities, activities etc., required or demanded[.]
I find, based on the scope of these definitions and the evidence before me, that the proposed development is a 'service trade' for the purposes of cl 4.5.2 of LPS 3. Consequently, I cannot approve the proposed development unless I am satisfied that it is consistent with the orderly and proper planning, and the preservation of amenity, of the Town Centre.
I will address the issues of orderly and proper planning, and the amenity of the locality, after determining whether the design of the proposed development is consistent with main street design guidance and outcomes of the Master Plan (design principles) and the weight that I should afford to them.
Is the design of the proposed development consistent with the Master Plan?
I will first consider the process by which the Master Plan was adopted by Council in the context of the provisions of LPS 3.
Background to the adoption of the Master Plan
The objectives of the Scheme are set out in cl 1.6 of LPS 3 which include the implementation of development proposals contained in the Town Centre Strategy Plan (Strategy Plan). The objectives of the Scheme are:
(a)providing development controls for the purpose of securing and maintaining an orderly and properly planned due and development of land within the Scheme Area;
(b)implementing the development proposals contained in the Town Centre Strategy Plan adopted by Council.
Pursuant to cl 1.4(c) of LPS 3, the Strategy Plan (as amended) is part of the Scheme. The expression 'Strategy Plan' is defined in cl 1.8 of LPS 3 as follows:
Strategy Plan:
Means a plan adopted by Council (as amended from time to time) to guide development within the Town Centre area and deals with (but not limited to) broad land use precincts, vehicle/pedestrian/cyclist movement systems, spatial layout of build form and landscaping.
Council resolved on 11 December 2019 to adopt the Master Plan as the Strategy Plan pursuant to cl 2.1.1 of LPS 3.[21] The purpose of the Master Plan is to guide the future vision and development of the City Centre.[22]
[21] Respondent's SIFC dated 25 November 2022, para 15. Applicant's SIFC dated 22 December 2022, para 3.
[22] Master Plan, cl (i) purpose.
The relevant objectives in cl 2.2 of the Master Plan are as follows:
•Provide a high quality Main Street environment facilitating a pedestrian-orientated environment and public spaces.
•…
•Encourage a wider variety of uses within the City Centre to facilitate activity outside business hours.
•Minimise the impact of vehicle traffic and car parking within the City Centre.
•…
•Promote a high quality mixed use environment accommodating ground level retail and opportunity for multi-unit residential dwellings above.
Further, the proposed development must be assessed and carried out having regard to the development requirements set out in Part III of the Scheme. Relevantly, cl 3.1.1.1 of LPS 3 provides that building design and layout must generally accord with the Kwinana Town Centre Design Guidelines (Design Guidelines) (as amended from time to time) and that Council (and the Tribunal on review) must have regard to the guidelines when assessing development proposals.
The expression 'Design Guidelines' is defined in cl 1.8 of LPS 3 as follows:
Design Guideline:
Means criteria adopted by Council to guide the design and assessment of development in order to achieve the objectives of the Scheme (as amended from time to time) and which deal with the location, siting, orientation, height, design, bulk finish, colour and texture of buildings and associated development.
The Master Plan also operates in effect as the Design Guidelines as that term is defined in cl 1.8 of LPS 3.[23]
[23] Respondent's SIFC dated 25 November 2022, para 50.
I will next consider the weight to be afforded to the Master Plan and the design principles embodied in it.
The weight to be afforded to the Master Plan
The starting point in assessing the weight to be afforded to the Master Plan is to consider the Scheme provisions.
A local planning scheme is subsidiary legislation[24] and, consequently, common law principles of statutory construction apply to its interpretation. A statutory provision must be construed, in its context, so that it is consistent with the language and purpose of all the provisions of the statute: Mohammadi and Bethune [2018] WASCA 98 (Mohammadi) at [32]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].
[24] Interpretation Act 1984 (WA), s 5.
A local planning scheme is to be construed broadly and sensibly, not pedantically.[25] Further, the Tribunal has recognised that scheme provisions will ordinarily be construed in a manner which acknowledges that they are largely the work of town planners, not parliamentary counsel. Consequently, scheme provisions 'should be read as a whole and applied in a practical and common sense, and not an overly technical way and in a fashion which will best achieve their evident purpose'.[26]
[25] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v The Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
[26] Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500, at [502]; cited with approval by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312.
The Western Australian Court of Appeal in City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 at [66] referred to the following passage from Mohammadi which is of assistance in discerning the purpose of a statute (or scheme):[27]
… the objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions[.]
[27] Mohammadi at [33].
Clause 1.4 of LPS 3 provides that the Scheme comprises the Scheme text, the Scheme map and the Strategy Plan. On this basis, the respondent contends that the Master Plan forms part of LPS 3 and, consequently, the guidelines for development set out in the Master Plan should be given substantial weight.[28] The respondent further contends that the Master Plan was prepared taking into account the objectives of SPP 7.2 and the design principles of SPP 7.0. Because the City Centre is a 'precinct' for the purposes of SPP 7.2, the respondent says it requires detailed planning and design focus due to its complexity.[29]
[28] Respondent's SIFC dated 25 November 2022, para 52.
[29] Respondent's SIFC dated 25 November 2022, para 53; SPP 7.2, cl 4.1; ts 187, 21 February 2023.
In contrast, the applicant says that the Strategy Plan and Design Guidelines (which together comprise the Master Plan) do not fall within the meaning of 'planning instrument' as that term is defined in reg 77 of the LPS Regulations and, therefore, the documents are not to be given 'due regard' for the purposes of cl 67(2) of the Deemed Provisions.[30] Whilst the Master Plan was advertised and publicly consulted on, the applicant says it was not the subject of a prescribed process for the introduction of a planning instrument (such as advertising, public consultation and, in some cases, the approval of the Western Australian Planning Commission).[31] It is the applicant's position that the Master Plan is in conflict with the provisions of LPS 3 and the Deemed Provisions (and exceeds the proper scope of a nonplanning instrument) by purporting to require a specific form of development in certain locations where a broader range of development is contemplated by the relevant planning instruments.[32] For these reasons, the applicant contends that the design principles should be disregarded or, alternatively, given limited weight.[33]
[30] Applicant's SIFC dated 22 December 2022, para 25 and para 27; ts 170, 21 February 2023.
[31] Applicant's SIFC dated 22 December 2022, para 26.
[32] Applicant's SIFC dated 22 December 2022, paras 31-32.
[33] Applicant's SIFC dated 22 December 2022, para 33.
There was no dispute, and I find, that on 11 December 2019 Council adopted the Master Plan as the Strategy Plan pursuant to cl 2.1.1 of LPS 3 to guide development within the Town Centre. I further find that the Master Plan is a planning instrument because, pursuant to cl 1.4 of LPS 3, it forms part of the Scheme. Consequently, the Master Plan provisions have effect as if they are incorporated into the Scheme.[34] For these reasons, I am satisfied that the Master Plan is a relevant planning consideration to which I must have due regard under cl 67(2)(a) of the Deemed Provisions.
[34] See, for example, Scutti v City of Wanneroo [2018] WASCA 175 at [125] where the provisions of a structure plan were expressed to be incorporated into the relevant scheme and found to be binding and enforceable in the same way.
Pursuant to cl 2.1.1 of LPS 3, land use and development in the Town Centre must occur 'generally in accordance with' the provisions of the Master Plan.
The meaning of the phrase 'generally in accordance' was considered by the Tribunal in Coventry Square WA Pty Ltd and City of Bayswater [2014] WASAT 133 (Coventry Square). In that decision, the Tribunal endorsed the following statements from Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 at [9] [13]:[35]
[35] Coventry Square at [26].
...
•'Generally in accordance' does not require the proposed development to be identical to that described in the development or master plan; and
•It is appropriate to read the development or master plan as a whole when making this assessment[.]
…
12.Rather, the question before us is whether the departures identified by the responsible authority are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the approved development plan[.]
It follows that Council has discretion to permit land use and development under the Scheme that is at variance with the Master Plan provided any departure from the Master Plan is sufficiently confined and otherwise acceptable having regard to the objectives of the Scheme. The discretion afforded to Council (and the Tribunal on review) is made clear by cl 2.1.2 of LPS 3 which provides:
Land use and development proposals at variance to the Strategy shall be considered by Council, in the light of the Scheme Objectives where discretionary powers are available under the Scheme to permit such variance.
Clause 1.6 of LPS 3 sets out the two Scheme objectives as follows:
(a)providing development controls for the purpose of securing and maintaining an orderly and properly planned due and development of land within the Scheme Area;
(b)implementing the development proposals contained in the Town Centre Strategy Plan adopted by Council.
The applicant contends that the Master Plan is a policy to which the criteria for determining the weight to be given to a policy apply.[36] The applicant further contends that there are cogent reasons to depart from the Master Plan, such as the inconsistencies between the Master Plan and the Scheme identified by Mr Neilson which Council anticipated would require an amendment to LPS 3.[37]
[36] See Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100, adopting the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR(WA) 1 at 51; ts 172, 21 February 2023; ts 193, 21 February 2023.
[37] ts 149, 21 February 2023; ts 172-173, 21 February 2023; Exhibit 15, page 48.
The Master Plan forms part of the Scheme pursuant to cl 1.4(c) of LPS 3 and, consequently, I find that it is a strategic planning instrument of a higher order than a local planning policy made under the Scheme. Further, pursuant to cl 2.1.1 of the Scheme, land use and development in the Town Centre must occur generally in accordance with the provisions of the Master Plan. For these reasons, I find that the Master Plan is not properly described as a 'policy' but, instead, it is a higher order planning instrument which should be afforded substantial weight in the determination of these proceedings.
As referred to earlier, the Master Plan is a matter to which I must have due regard under cl 67(2)(a) of the Deemed Provisions. Consequently, the design principles embodied in the Master Plan are also matters to which I must have due regard and, for the reasons just stated, are to be afforded substantial weight.
I will next consider whether the proposed development is consistent with the design principles.
Assessment against the Main Street design principles
The subject land is located 'within the Main Street Precinct designated by the Master Plan' (Main Street Precinct).[38] Chisham Avenue is designated in the Master Plan as a 'Main Street'.
[38] Respondent's SIFC dated 25 November 2022, para 42(d). Applicant's SIFC dated 22 December 2022, para 4.
If weight is be afforded to the design principles, the applicant contends that a time-limited approval for a period of 10 or 15 years should be granted because:[39]
1)it will not derogate from the ultimate implementation of the Master Plan;
2)the specific form of development aspirations contained in the Master Plan, over the broader area of which the subject land is part, is for development many times larger than the proposed development. (The Master Plan envisages a 'Medium-to-high rise built form fronting the Main Street environment' and Figure 21 of the Master Plan identifies the subject land as a 'key landmark site');
3)any future development of the relevant area that implements and gives effect to the Master Plan will involve substantial commitment and the existing development within the locality does not indicate any sign of such a commitment occurring in the foreseeable future; and
4)to fully realise the Master Plan vision requires the redevelopment of sites on the main street that have only recently been redeveloped.
[39] Applicant's SIFC dated 22 December 2022, para 34; ts 185-186, 21 February 2023.
In contrast, it is the respondent's position that the proposed development is non-compliant with the current planning framework, which is unlikely to change in the future and, therefore, a time limited approval is not appropriate.[40] The respondent observed that there is no evidentiary basis on which the Tribunal could determine what an appropriate time limit might be in any event.[41]
[40] ts 198-199, 21 February 2023.
[41] ts 198-199, 21 February 2023.
Further, the respondent contends that the proposed development is inconsistent with the design principles for several reasons, including but not limited to, the following:[42]
[42] Respondent's SIFC dated 25 November 2022, para 56.
1)it does not engage directly with the pedestrian main street (Chisham Avenue);
2)it cannot be accessed from the main street;
3)it is set down significantly below the level of the main street;
4)it only provides a high-level window to the main street behind landscaping;
5)it does not provide an active frontage to the adjacent laneway to the east;
6)it is a car orientated use which is inconsistent with the intention for a pedestrian based streetscape;
7)it provides no shade or shelter to pedestrians on the main street;
8)it has minimal synergies with the types of uses that are appropriate in a main street environment;
9)it provides a large block of primary colour out of scale with the finer grain detail of buildings and signage that are expected and desirable in a main street environment; and
10)it does not adequately address its corner location at which a larger, active and finer grained development is expected and desirable.
Publicly accessible space
In relation to urban structure, the aim of the Master Plan is to '[c]reate a context for people to engage with the place' with attributes, for the character of the Main Street Precinct, that include a bustling retail and commercial centre supporting a high level of pedestrian activity, slow moving traffic and a rich mix of uses fronting the main street.[43] The Master Plan establishes Chisham Avenue as the focal point and prime public space of the City Centre.[44]
[43] Master Plan, cl 3.0, page 24.
[44] Master Plan, cl 3.2, page 26.
It is envisaged that the Main Street Precinct will provide a setting for people to linger, shop, gather in the evening and for special events, local markets and festivals.[45] In this context, the design guidance for the Main Street Precinct is, relevantly, as follows:[46]
•New development within the precinct should provide an engaging public space for locals, visitors and workers in the area.
•Improved pedestrian connections to the shopping mall and Main Street retail will add to the city's economic vitality.
…
•New development should accentuate the edge of the Main Street, reinforcing a distinctive urban wall and sense of enclosure.
[45] Master Plan, cl 3.1, page 24.
[46] Master Plan, cl 3.1, page 24.
The Master Plan also has a focus on publicly accessible space linking nodes of activity which are responsive to the existing pattern and uses within the City Centre.[47] One of the outcomes, in terms of urban structure, is to establish Chisham Avenue as the focal point and prime public space of the City Centre.[48] Design guidance includes:[49]
•Providing a variety of pedestrian environments along key pedestrian routes, such as squares, plazas and courtyards, add interest and contribute to the distinctive sense of place.
•Integrate public art to reflect a unique sense of place.
•Linking key pedestrian landmark features to ensure clear destinations within the City Centre and surrounds[.]
[47] Master Plan, cl 3.2, page 26.
[48] Master Plan, cl 3.2, page 26.
[49] Master Plan, cl 3.2, page 26.
Mr Mackay considered that the proposed development would not be appropriate for its location because it is not the type of fine-grained pedestrian-orientated use that would otherwise engage directly with Chisham Avenue and contribute to the liveliness of the main street.[50] It is also a car-orientated use, which Mr Mackay considers is not set back sufficiently from Chisham Avenue to enable another more appropriate and functional building or tenancy to be constructed between it and Chisham Avenue to sleeve it from the main street.[51] In Ms O'Shea's opinion, the proposed development does not create an engaging public space supporting the distinctive sense of place, nor does it attempt to integrate a network of public open spaces between the main street environment and the northern entry to the Shopping Centre.[52]
Movement
[50] Witness statement of Malcolm Mackay dated 1 February 2023, para 6.1(a).
[51] Witness statement of Malcolm Mackay dated 1 February 2023, para 6.1(b).
[52] Witness statement of Shannon O'Shea dated 31 January 2023, para 24(a)-(b).
The Master Plan's active transport and movement framework identifies primary streets, such as Chisham Avenue, with traffic slowed providing for defined pedestrian crossings and tree planting to create a sense of enclosure to the street.[53] The design guidance for pedestrian routes and primary streets include:[54]
•Legible way-finding through the city centre can improve access to parking areas and local facilities
…
•Ground level facades providing variation and interest at a human scale along its length encourage people to linger longer.
•Vehicle entrance points and service areas integrated into the overall building design minuses the visual impact on the pedestrian environment and street vitality[.]
[53] Master Plan, cl 3.5, page 32.
[54] Master Plan, cl 3.4, page 30; cl 3.5, page 32.
Ms O'Shea considers that the proposed development detracts from legible way-finding and access to local facilities in the context of the primary pedestrian axis and secondary pedestrian streets shown in Figure 15 (Pedestrian Network) of the Master Plan.[55] Because the proposed development accommodates a 'car dominated' business activity, it is Ms O'Shea's opinion that it 'provides no demarcation of space assigned to pedestrian or public transport, thereby limiting the opportunity for viable and cohesive pedestrian friendly centre'.[56] Mr Mackay agreed that the proposed development is inconsistent with the design guidance relating to primary and secondary pedestrian routes, and primary and secondary streets shown in Figure 17 (Street Hierarchy) of the Master Plan.[57]
Land use and building height and scale
[55] Witness statement of Shannon O'Shea dated 31 January 2023, para 24(c).
[56] Witness statement of Shannon O'Shea dated 31 January 2023, para 24(c).
[57] Witness statement of Malcolm Mackay dated 1 February 2023, para 7.3(g)-(o).
In relation to built form, the aim of the Master Plan is to '[c]reate a context for people to engage with the place'. The Master Plan promotes a mix of uses to service daily needs and establish a vibrant, active destination by day and night in order to achieve greater diversity, interest and desirable attractors along key routes.[58] The design guidance for commercial and retail uses include:
•Create synergies between activities during the day and night within the Main Street environment.
•Building design to consider flexible and adaptable ground floor uses over time, providing generous ground level ceiling heights between 3.3m and 4m.
[58] Master Plan, cl 4.1, pages 38-39.
Figure 21 of the Master Plan identifies key landmark sites and corner/gateway sites (Figure 21). In relation to building height and scale, the Master Plan seeks to achieve more prominent massing and architectural treatment on corners and other important sites shown in Figure 21.[59] The subject land is identified in Figure 21 as a 'key landmark site'.
[59] Master Plan, cl 4.2, page 40.
Ms O'Shea considers that the proposed development limits the opportunity to encourage ground level activity or to facilitate a vibrant pedestrian environment.[60] She is of the opinion that the proposed development would be more appropriately located in the 'large format retail/commercial' land use zone shown in Figure 19 (Overlay of Land Uses within the City Centre) of the Master Plan. Further, in Ms O'Shea's opinion, the bulk and scale of the proposed development, conducive to capturing the attention of passing vehicles, is of a lower quality design within a high value main street environment, diminishing the appeal and definition of the City Centre and its adjacent public realm.[61] Mr Mackay agreed that the proposed development is inconsistent with the design guidance for height and massing, and corner sites.[62] In Mr Mackay's opinion, the proposed development will not create synergies between activities during the day and night within the main street environment and, therefore, is inconsistent with the design guidance in relation to land use.[63]
Building frontages and facades
[60] Witness statement of Shannon O'Shea dated 31 January 2023, para 25(a).
[61] Witness statement of Shannon O'Shea dated 31 January 2023, para 24(b).
[62] Witness statement of Malcolm Mackay dated 1 February 2023, para 7.4(b)-(d).
[63] Witness statement of Malcolm Mackay dated 1 February 2023, para 7.4(a).
The Master Plan envisages active frontages, as shown in Figure 22, that address the public domain to enhance the interaction with the street. The Master Plan looks to avoid long lengths of blank walls and infrastructure elements (substations etc) adjacent to primary pedestrian links and public open spaces. The design guidance provides that active building frontages should:[64]
•address primary pedestrian corridors;
•provide active, transparent shop frontages onto the street and public spaces to allow the public to see and be seen;
•provide frequent doors and windows, with few blank walls;
•have narrow frontage buildings, giving vertical rhythm to the street scene;
•articulate high quality materials and refined details;
•provide strong visual connection between internal spaces; and the adjacent public realm.
[64] Master Plan, cl 4.3, page 42.
In relation to façade treatment, the Master Plan seeks to ensure that individual buildings contribute to pedestrian friendly streets, providing a sense of activity and community at the ground level, and provide entrances that are clearly defined and legible within the public realm. Pedestrian entrances are to be located in prominent and convenient locations and on direct pedestrian paths.[65]
[65] Master Plan, cl 4.4, page 44.
In Ms O'Shea's opinion, the proposed development lacks active frontages that address the primary pedestrian axis, such as frequent doors and windows with few blank walls with clear sight lines to the public domain. She also considers that the proposed development gives no vertical rhythm to the street scene or articulation of visual connections between internal spaces and the public realm.[66] She observed that the proposed development lacks a semi-active frontage to the laneway due to the solid blank wall of up to 6.5 metres high and 34 metres in length wrapping the southern boundary. Further, it is Ms O'Shea's opinion that the proposed development fails to achieve the design guidance for active frontages because it does not incorporate design measures to create a human scaled environment required of the Main Street Precinct.[67]
[66] Witness statement of Shannon O'Shea dated 31 January 2023, para 25(d).
[67] Witness statement of Shannon O'Shea dated 31 January 2023, para 25(d).
Ms O'Shea considers that the proposed development lacks appropriate façade treatment expected within the Main Street Precinct because it does not provide street level interfaces that contribute to the pedestrian friendly environment or complements the public realm. In her opinion, the proposed building façade does not break up the mass of the building to create a human scaled street experience by providing depth and articulation to the overall structure or a variety of materials to break up the mass.[68]
[68] Witness statement of Shannon O'Shea dated 31 January 2023, para 25(f).
Mr Mackay agreed that the proposed development is inconsistent with the design guidance for active frontages and façade treatment.[69]
Integration with the public realm
[69] Witness statement of Malcolm Mackay dated 1 February 2023, para 7.4(f)-(j).
The Master Plan aims to create a context for people to engage with each other through a vibrant public realm.[70]
[70] Master Plan, cl 5.0.
In Mr Mackay's opinion, the proposed development is generally inconsistent with the intended outcomes and design guidance of the Master Plan relating to the public realm, particularly in respect of landscaping and signage. Ms O'Shea agreed and observed that the size and dominance of the proposed signage, which is aimed at attracting passing vehicle traffic, is identified in Figure 26 of the Master Plan as appropriate for 'large format retail/commercial' land uses illustrated in Figure 19.[71] In her opinion, the proposed signage detracts from the finer grain scale and legibility of a pedestrian friendly 'main street' experience. Ms O'Shea considers that the proposed development provides little integration of soft treatment or tree planting, further contributing to a lack of streetscape character expected of 'main street' improvements to the City Centre environment.[72]
[71] Witness statement of Shannon O'Shea dated 31 January 2023, para 26(d).
[72] Witness statement of Shannon O'Shea dated 31 January 2023, para 26(f).
In Ms O'Shea's opinion, the proposed development lacks integration or engagement with the public realm because it does not accommodate any interface with adjacent land uses or provide stimulating spaces that contribute towards comfortable, safe and pedestrian friendly spaces.[73] She observed that as a 'car dominated' activity, the proposed development does not support the vitality of the public realm and has little consideration for the principles of Crime Prevention Through Environmental Design.[74]
[73] Witness statement of Shannon O'Shea dated 31 January 2023, para 26(a).
[74] Witness statement of Shannon O'Shea dated 31 January 2023, para 26(b).
I will next consider the evidence of the expert planners and their assessment of the proposed development against the design principles.
Expert planning evidence on consistency with the Master Plan
Mr Teo undertook an assessment of the proposed development against the provisions of the Master Plan relating to urban structure, built form, and public realm outcomes. Due to the existing land levels and scale of the proposed development, Mr Teo concluded that it would be difficult to comply with all outcomes of the Master Plan without 'a full-scale redevelopment of the shopping centre area or a significant proposal involving extensive earthworks and level changes to the existing car park'.[75] He observed that modification of the existing car park levels to facilitate the proposed development would be cost prohibitive.[76]
[75] Witness statement of Neil Teo dated 7 February 2023, para 45.
[76] Witness statement of Neil Teo dated 7 February 2023, para 47(a).
In Mr Teo's opinion, the proposed development has considered the design principles by providing an open-void office space to Chisham Avenue and additional landscaping to the street frontage.[77] In his view, the proposed development does not prejudice the ability for the aspirations of the Master Plan to be achieved because:[78]
1)the redevelopment clause in the lease allows the landowner to relocate or terminate the applicant after 5 years from the commencement of the lease;
2)the landowner has acknowledged that there are no immediate plans to redevelop the subject land;
3)from a review of historical aerial photographs, redevelopment within the City Centre has moved at a 'slow pace';[79] and
4)if large scale redevelopment of the shopping centre occurred it could be staged around the proposed development until such time that it is appropriate to relocate or terminate the lease.
[77] Witness statement of Neil Teo dated 7 February 2023, para 47(b).
[78] Witness statement of Neil Teo dated 7 February 2023, para 48.
[79] Witness statement of Neil Teo dated 7 February 2023, para 13; Exhibit 9.
Mr Neilson is of the opinion that the proposed development is fundamentally inconsistent with the Master Plan and the design principles it embodies.[80] Further, Mr Neilson does not agree that it will be decades before multi-storey mixed-use development occurs along the main street, or that the proposed development should be considered acceptable in the interim.[81] In his opinion, the proposed development is likely to create an obstacle to the longer term delivery of the Master Plan vision for the main street. He considers that 'interim development ought to be consistent with the Master Plan and maximise opportunities for subsequent development to comply'.[82]
Urban design - findings
[80] Witness statement of Paul Neilson dated 3 February 2023, para 46.
[81] Witness statement of Paul Neilson dated 3 February 2023, para 49.
[82] Witness statement of Paul Neilson dated 3 February 2023, para 51.
The applicant did not adduce any expert evidence from an urban designer. Based on the uncontested expert evidence of the urban designers called by the respondent, which I accept, I find that the proposed development does not satisfy the design principles.
The urban designers and Mr Neilson agreed, and I find, that the Master Plan envisages a 'main street' design concept along Chisham Avenue characterised by built form that is designed as a continuous edge to the street in order to create a high-quality pedestrian environment with active frontages that provide visual interest. Whilst there may be aspects of the development that address the main street, I accept the evidence of the urban designers and Mr Neilson, and I find, that the proposed development is fundamentally inconsistent with the provisions of the Master Plan.
Nevertheless, the Tribunal has discretion to permit development under LPS 3 that is at variance with the Master Plan provided any departure from its provisions is sufficiently confined and otherwise acceptable having regard to the objectives of the Scheme.[83] Relevantly, the objectives of the Scheme include 'securing and maintaining an orderly and properly planned' Scheme Area.
[83] LPS 3, cl 2.1.1 and cl 2.1.2.
I will next consider whether the proposed development meets the objectives of the Scheme and satisfies the requirements of orderly and proper planning.
Does the proposed development satisfy the requirements of orderly and proper planning?
Clause 4.5.2 of LPS 3 provides that service trades will not generally be supported in the Shopping/Business zone unless Council (and the Tribunal on review), is satisfied that the development will be consistent with orderly and proper planning of the Town Centre. Further, one of the objectives of LPS 3 is to secure and maintain an orderly and properly planned development of land within the Scheme Area.[84]
[84] LPS 3, cl 1.6(a).
The meaning of the expression 'orderly and proper planning' was considered by the Western Australian Supreme Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall). Her Honour Pritchard J concluded that orderly and proper planning requires the suitable or appropriate use of land that is based on a systematic and logical approach to decision-making. Her Honour held:[85]
179… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, 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.
182While 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.
(Emphasis added)
[85] Marshall at [179]-[182].
It is the applicant's position that the proposed development is consistent with the requirements of orderly and proper planning.[86] The applicant contends that the proposed development does not pose a risk to surrounding development and complies with all of the applicable requirements of LPS 3 (except where referenced to the Master Plan).[87] The applicant further contends that the proposed development is consistent with the underlying aim and intent of LPS 3 which is to provide a broad range of commercial development in the locality.[88] In support of its contentions, the applicant relied on the evidence of Mr Teo. Mr Teo expressed the following opinion:[89]
As the proposed development has been architecturally designed to fit within the existing character of the area and the provisions [sic] of a statement art façade, it is deemed to be consistent with the design principles of SPP7.0. Further, it is of my opinion that as the proposed development is compliant with the [S]cheme and the Master Plan to a point that is reasonable, the proposal is considered compliant with the policy outcomes of SPP7.2.
[86] Applicant's SIFC dated 22 December 2022, para 19.
[87] Applicant's SIFC dated 22 December 2022, para 13.
[88] Applicant's SIFC dated 22 December 2022, para 15 and para 16.
[89] Witness statement of Neil Teo dated 7 February 2023, para 71(b).
Whilst the proposed development is car orientated, Mr Teo observed that there would be no change to Chisham Avenue or negative impacts to the existing pedestrian infrastructure. In Mr Teo's opinion, the proposed development would not reduce the ability of Chisham Avenue to operate as a pedestrian focussed main street.[90]
[90] Witness statement of Neil Teo dated 7 February 2023, para 71(g).
In contrast, the respondent says that the proposed development is not consistent with the requirements of orderly and proper planning. In support of its position, the respondent relied on the evidence of Mr Neilson and the assessments conducted by the urban design experts.[91] In Mr Neilson's opinion, the proposed development is an inappropriate impediment to the City's publicly adopted vision for future development and, therefore, is inconsistent with the key objectives of LPS 3.[92] Mr Mackay assessed the proposed development against the ten design principles of SPP 7.0 and concluded that the proposed development is not consistent with them.[93] He did not assess the proposed development against the requirements of SPP 7.2.[94]
Orderly and proper planning - findings
[91] Respondent's SIFC dated 25 November 2022, para 59.
[92] Witness statement of Paul Neilson dated 3 February 2023, para 48.
[93] Witness statement of Malcolm Mackay dated 1 February 2023, para 7.6; ts 82, 20 February 2023.
[94] ts 82, 20 February 2023.
Planning principles identified as relevant to a development application should not be lightly departed unless there is a sound basis for doing so, which is itself grounded in planning law or principle.[95] The applicant contends that if the design principles are to be given weight by the Tribunal (which I have found they should) then departure from them is warranted because:[96]
1)the Master Plan establishes a vision for the main street which is not reflected in LPS 3 itself, a formally adopted (precinct or activity centre) structure plan or local planning policy;
2)there are uses permissible on Chisham Avenue pursuant to LPS 3 (such as a motor repair service centre) which can never meet the design principles for preferred main street uses identified in the Master Plan;
3)the size and scale of the proposed development is not conducive to it satisfying the design principles, particularly those which have little or no application to a site that does not have a usable frontage to Chisham Avenue; and
4)the proposed development will not prevent the aspirations of the Master Plan from being realised in the future.
[95] Marshall at [181].
[96] ts 177-179, 21 February 2022.
The respondent says that the applicant has not identified a reason to depart from the Master Plan which is itself a planning justification for doing so.
I am not satisfied that the matters identified by the applicant either separately, or together, justify a departure from the design principles for the reasons that follow. First, whilst the Master Plan vision for the main street is not reflected in a formally adopted structure plan or local planning policy, I have found that the Master Plan is a planning instrument and is part of LPS 3 and, consequently, the design principles embodied in it cannot be departed from lightly. Second, the length of time it may take to realise a strategic planning vision is not a proper planning basis to depart from the design principles which embody that vision. Consequently, I do not consider that the proposed development, which I have found to be inconsistent with both the Master Plan and SPP 7.0 design principles, should be permitted on the basis that the aspirations of the Master Plan may take some time to realise. Third, the limited size and scale of the proposed development is not a proper planning basis to depart from the design principles in the circumstances of this case where the design outcome would nevertheless be incongruous with the Master Plan vision for the main street.
Whilst the proposed development does not prevent Chisham Avenue from being used as a pedestrian focussed main street, I accept the evidence of Mr Neilson, and I find, that the proposed development is inconsistent with the requirements of orderly and proper planning because it is detrimental to future development on Chisham Avenue and, consequently, an inappropriate impediment to the delivery of the Master Plan vision for the main street.[97] This finding is supported by the evidence of the urban designers who agreed that future mixed use development on Chisham Avenue may be inhibited by the proposed development.[98]
[97] Witness statement of Paul Neilson dated 3 February 2023, para 48 and para 51.
[98] ts 77, 21 February 2023; ts 79, 21 February 2023.
I will next consider whether the proposed development will have an adverse amenity impact on the locality.
Will the proposed development have an adverse impact on the amenity of the locality?
I must, in considering the application, have due regard to the amenity of the locality including, relevantly, the character of the locality pursuant to cl 67(2)(n) of the Deemed Provisions. The term 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
The correct approach to an amenity assessment does not involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development.[99] The Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (Sunbay). In Sunbay, the Tribunal referred to the decision of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Western Australian Town Planning Appeal Tribunal observed that:[100]
… the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The [Town Planning Appeal] Tribunal emphasised that the first part of the inquiry involves a determination, 'as a matter of fact, [of] the objective character of the area that represents the present state of amenity.
[99] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70].
[100] Sunbay at [20].
In Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity), the Tribunal considered the concept of locality:[101]
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[101] Ridgecity at [42].
There was no dispute, and I find, that the locality encompasses the Town Centre, which includes the existing development on the north and south sides of Chisham Avenue between Gilmore Avenue and Meares Avenue, the commercial uses adjacent to the laneway, the subject land and the car park.[102]
[102] Witness statement of Neil Albert Teo dated 7 February 2023, para 12; Exhibit 9.
It is the applicant's position that the proposed development does not pose a conflict with surrounding development and, except in respect of the design principles addressed above, it complies with LPS 3. For these reasons, the applicant says that the proposed development is consistent with the amenity of the locality and, particularly, the character of the locality for the purposes of cl 67(2)(n) of the Deemed Provisions. In support of its position, the applicant relied on the evidence of Mr Teo. Mr Teo observed:[103]
…the current visual amenity of users of [Chisham Avenue] and the footpath is that of an empty car park with a blank façade of the existing retaining wall [to the laneway]. The Development improves upon this existing visual amenity via the development of more landscaping consistent with the streetscape of the surrounding area, visually interesting built form preferable to blank hardscape and the public art feature aforementioned retaining wall.
[103] Witness statement of Neil Albert Teo dated 7 February 2023, para 47(c).
The respondent contends that the proposed development will have an adverse impact on the desired future visual amenity of pedestrians and other users of the main street, particularly those travelling in a west to east direction.[104] The respondent further contends that the proposed development is likely to have an adverse impact on the desired amenity of other main street users because of noise generated by vehicle servicing activities.[105]
[104] Respondent's SIFC dated 25 November 2022, para 62.
[105] Respondent's SIFC dated 25 November 2022, para 63.
In support of its contentions, the respondent relied on the evidence of Mr Neilson. Mr Neilson agreed with Mr Teo that the subject land is a car park and does not offer much visual appeal.[106] Mr Neilson also accepted that when viewed from the north-east, the proposed development has been designed to offer an attractive frontage (the feature art wall).[107] However, in his opinion, the same could not be said of the view of the proposed development when approaching from the west, particularly for pedestrians on the footpath.[108] Mr Neilson did not consider that the built form of the proposed development, and the noise associated with it, is acceptable in its location having regard to the desired future amenity of the main street.[109]
[106] Witness statement of Paul Neilson dated 3 February 2023, para 52.
[107] Witness statement of Paul Neilson dated 3 February 2023, para 52.
[108] Witness statement of Paul Neilson dated 3 February 2023, para 52.
[109] Witness statement of Paul Neilson dated 3 February 2023, para 53.
Whilst I acknowledge that the proposed development has been designed, including through the application of street art, to offer an attractive frontage when approached from the north-east, I do not consider that it will be consistent with the future character of the main street environment. I accept the evidence of Mr Neilson, and I find, that the built form of the proposed development, particularly when viewed from the west by pedestrians, is not in keeping with the desired future amenity of Chisham Avenue.
No noise assessment or other acoustic evidence was adduced at the final hearing to support a finding that the activities of a motor repair service centre would generate noise to a level that would interfere with the amenity of the locality. Consequently, I am unable to make any findings in relation to the impact on amenity from noise (if any) generated by the proposed development.
I will next consider whether it is appropriate to grant a time limited approval.
Time limited approval
Pursuant to cl 72 of the Deemed Provisions, the Tribunal may impose conditions limiting the period of time for which development approval is granted. The applicant's contentions in support of a time limited approval are summarised at [62] above.
In Grace and City of Nedlands [2010] WASAT 53 (Grace), the Tribunal considered the circumstances in which it may be appropriate to impose a condition limiting the time for approval. The Tribunal observed:[110]
… Generally speaking, time-limited consents are appropriate where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time[.]
[110] Grace at [70].
Because I have found that the proposed development will act as an impediment to the realisation of the Master Plan vision for Chisham Avenue, I am satisfied that granting a time limited approval would be inconsistent with the objectives of LPS 3 (of which the Master Plan forms part), the requirements of orderly and proper planning, and the desired future amenity of Chisham Avenue, particularly when viewed from the west by pedestrians. Further, there was no evidence before me of any change in the planning framework, or the character or amenity of the locality, which might support a time limited approval for a motor repair service centre in its proposed location.
Consequently, for these reasons, I find that limiting the time for which approval is granted is not appropriate in the circumstances of this case. Further, whilst a time limited approval may be appropriate for the use of an existing building in certain circumstances,[111] the built form in this case would necessarily require demolition when the approval lapses. I observe that granting conditional approval for a new building which would be used for a limited period does not promote the sustainable use and development of land for the purposes of s 3(1)(c) of the PD Act.
Conclusion
[111] See, for example, Kelmscott Central Pty Ltd and City of Karratha [2020] WASAT 116.
Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, I conclude that the correct and preferable decision is to dismiss the application for review under s 252(1) of the PD Act.
A 'service trade', such as motor repair service centre, may be approved in the Shopping/Business zone if it is consistent with orderly and proper planning and the preservation of the amenity of the Town Centre. However, I have found that the proposed development is inconsistent with the principles of orderly and proper planning because it would impede the realisation of the vision for Chisham Avenue embodied in the Master Plan, a strategic planning instrument which is part of the Scheme.
When assessed by the expert urban designers against the Master Plan design principles, the experts agreed that the proposed development is inconsistent with them. Pursuant to cl 2.1.2 of the LPS 3, the Tribunal has discretion to approve a development which is at variance with the Master Plan. However, I am not satisfied that there is a sound planning basis to depart from the application of the design principles in the circumstances of this case.
I have also found that the proposed development, particularly when viewed from the west by pedestrians, is not in keeping with the desired future amenity of Chisham Avenue.
In light of these findings, it would not be appropriate to limit the time for which development approval is granted. Accordingly, I will affirm the respondent's decision made on 4 October 2022 to refuse development application DA10281 for a motor repair service centre on the subject land.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 4 October 2022 to refuse development application DA10281 for a motor repair service centre at No 4 (Lot 89) Chisham Avenue, Kwinana Town Centre, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FM
Secretary
16 JUNE 2023
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