Barwell Nominees Pty Ltd and City of Wanneroo
[2007] WASAT 156
•21 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BARWELL NOMINEES PTY LTD and CITY OF WANNEROO [2007] WASAT 156
MEMBER: MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
MS M CONNOR (MEMBER)
MR M SPILLANE (MEMBER)
HEARD: 15 & 16 MARCH 2007
FURTHER WRITTEN SUBMISSIONS RECIEVED 20 APRIL 2007, 26 APRIL 2007, 1 MAY 2007, 7 MAY 2007 & 15 MAY 2007
DELIVERED : 21 JUNE 2007
FILE NO/S: DR 350 of 2006
BETWEEN: BARWELL NOMINEES PTY LTD
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning - Development application - Mixeduse development - Darch neighbourhood centre - Shop, civic, tavern, restaurant, child care centre, medical centre, residential development - Whether the impact of the development of a tavern on the subject land will generate unacceptable noise, traffic and antisocial behaviour - Adequacy of surrounding road network - Proximity of tavern to high school - Whether the extent of car parking for the overall centre is acceptable - Reciprocal parking - Whether discretion should be exercised to permit shared use of parking - Weight to be given to the "Explanatory Section" of Structure Plan No 51 - Public submissions - Conditions to impose on approval
Legislation:
City of Wanneroo District Town Planning Scheme No 2, cl 3.2, cl 4.2, cl 4.2.3, cl 4.16, cl 6.6.2, cl 6.7, cl 6.8, cl 9.4.1(b), cl 9.8.2, cl 9.8.3, cl 9.8.7, Pt 9, Pt 10, Table 2
Environmental Protection (Noise) Regulations 1997 (WA)
Land Administration Act 1997 (WA), s 196
Liquor Licensing Act 1990 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 159, s 251(2)
Result:
Application for review allowed and conditional development approval granted
Category: B
Representation:
Counsel:
Applicant: Mr P Laskaris & Mr G Castledine
Respondent: Mr C Slarke
Solicitors:
Applicant: Castledine Legal and Mediation Services
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Busen Pty Ltd and City of Subiaco [2007] WASAT 49
Fazio and City of Fremantle [2006] WASAT 169
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Sistaro Pty Ltd & Anor and City of Joondalup [2003] WATPAT 43
Springmist Pty Ltd and Shire of Augusta Margaret River [2005] WASAT 143
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Barwell Nominees Pty Ltd sought review by the Tribunal of the decision of the City of Wanneroo to refuse to grant development approval for mixed use development comprising shops, civic building, tavern, restaurant, child care centre, medical centre and residential development (R40) on Lot 100 and Lot 9028 (Nos 213‑225) Kingsway, Darch.
The issues as agreed between the parties were:
1)Whether the impact of the development of a tavern on the subject site will generate unacceptable noise, traffic and antisocial behaviour.
2)Whether the extent of car parking proposed for the overall centre is acceptable.
A further substantive issue was the weight to be accorded to Pt 2 "Explanatory Section" of the Darch neighbourhood centre Local Structure Plan No 51. On this issue, the Tribunal found that some weight should be accorded to Pt 2 of the Darch neighbourhood centre Local Structure Plan No 51. However, the explicit distinction drawn between the two parts in the Statutory Planning Section of the Darch neighbourhood centre Local Structure Plan No 51 meant that the "descriptive analysis" of Pt 2 would not in any sense be determinative of an application which should be dealt with under the provisions of cl 3.2 and cl 6.7 of the City of Wanneroo District Planning Scheme No 2.
In regard to the potential noise impacts associated with the tavern, the Tribunal concluded that potential noise impacts from the tavern were a relevant consideration but could reasonably be dealt with in conditions attaching to any approval. In dealing with the traffic impacts of the proposed development, the Tribunal found that the evidence presented had demonstrated that the surrounding road network was adequate to deal with any increased traffic created by the development.
In regard to antisocial behaviour, based on the evidence submitted, it was difficult for the Tribunal to conclude that the location of a tavern in reasonably close proximity to a high school would generate unacceptable amenity impacts. Furthermore, in the current context, any potential amenity impacts were mitigated by a number of relevant factors.
The Tribunal therefore determined that subject to a number of conditions, a tavern use on the subject land could be supported.
In dealing with the extent of car parking proposed for the overall centre, the Tribunal found that the applicant had provided convincing evidence that the actual demand generated by the proposed development would be satisfied by the provision of 355 shared car parking spaces. The Tribunal therefore determined that it was willing to support the extent of discretion required to support the shared car parking use proposed under the provisions of cl 4.2 of the City of Wanneroo District Planning Scheme No 2.
Having weighed all of the relevant issues the Tribunal was prepared to allow the application for review subject to a range of conditions.
Introduction
These proceedings involve an application brought by Barwell Nominees Pty Ltd (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Wanneroo (Council, City or respondent) to refuse development approval for "Mixed Use Development" comprising shops, civic building, tavern, restaurant, child care centre, medical centre, residential development (R40) on Lot 100 and Lot 9028 (Nos 213‑225) Kingsway, Darch (site or subject land).
On 31 May 2006, the applicant submitted an application for "Approval to Commence Development" to the City.
The application was duly advertised under the provisions of cl 6.7 of City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme) for a period of 28 days. This included the provision of a sign on the site, an advertisement in the local newspaper and on the City's website, and letters to landowners within a 500 metre radius of the subject land. The submission period closed on 4 August 2006 and a total of 110 submissions were received by the Council. Of these, 28 submissions objected to the proposal or components of the proposal while 82 submissions supported the proposal. In addition to these submissions the Council received 118 completed surveys submitted by the Ashdale Gardens Residents' Association (Association). This survey had been organised by the Association to "establish what the residents in their community would like at the proposed Neighbourhood site".
The development application was the subject of a detailed assessment report by the Council's professional staff which recommended the granting of conditional development approval.
On 19 September 2006, the Council refused the application. The reasons for refusal were:
"1.The development of a tavern at this centre is considered to be inappropriate as the activity associated with this use will significantly impact upon the amenity of the locality by way of increased noise, traffic and antisocial behaviour.
2.A significant proportion of the objection received as a result of the community consultation associated with this proposal related to the tavern.
3.The application proposes considerably less car parking bays than that required by the City's [DPS 2].
4.Approval of the proposed tavern at this centre is considered to be contrary to the principles of orderly and proper planning."
On 16 October 2006, an application for review was lodged with the State Administrative Tribunal seeking a review of the refusal of the application for "Approval to Commence Development".
The subject land
The subject land comprises an area of approximately 3.1234 hectares and is bounded by Kingsway to the south, Ashdale Boulevard to the east, Athenny Way to the north and the future extension of Carlingford Drive to the west. The site is currently vacant. It contains remnant vegetation and a drainage sump located towards the south‑west corner abutting the road reservation for the extension of Carlingford Drive. The site is generally flat with limited falls (up to 3 metres) that generally slope from the western and southern boundaries of the subject land towards a low point in the north‑east corner of the site.
Kingsway is a district distributor road within the City and provides a major east‑west link for both commercial and residential traffic. Ashdale Boulevard is a local distributor road which connects south across Kingsway to Evandale Road. It does not connect directly north to Furniss Road, which bounds the southern side of the Landsdale General Industrial Area (approximately 750 metres north of the subject land); a direct connection is provided by Driver Road approximately 400 metres to the east of Ashdale Boulevard.
The locality has seen recent residential development to the north, east and south of the subject land. To the west of the subject land, a State Government high school is proposed. The land immediately to the north of the subject land has a density coding of R40, while the land immediately to the east and south is coded R20.
The Kingsway Christian College is located on Kingsway approximately 500 metres to the east of the subject land while Darch Primary School is located approximately 150 metres to the north on Ashdale Boulevard.
The proposed development
The proposed development is a combination of uses which seeks to establish an integrated development for the whole of the subject land and comprises the following uses:
•A tavern (605 square metres) with a liquor outlet (including drive through – 150 square metres);
•neighbourhood centre (200 square metres assembly);
•restaurant (188 square metres);
•supermarket (1500 square metres);
•six retail tenancies (770 square metres);
•medical Centre (450 square metres);
•child care centre (350 square metres);
•associated parking (355 bays provided for non‑residential uses); and
•a residential component indicating 22 residential lots.
The Commercial and Community Uses are grouped centrally on the southern portion of the land around a north/south "main street" accessed from Kingsway. The residential lots are distributed mainly along the northern boundary facing Athenny Way with a more limited number on the northern portion of the eastern boundary facing Ashdale Boulevard. The major parking area is located between the commercial uses and the residential lots with the provision of a number of smaller linked parking areas distributed around the perimeter of the southern portion of the subject land.
Access to the development is provided from Kingsway, from two locations on Ashdale Boulevard and three locations on Carlingford Drive. Vehicular access to the residential lots is proposed from a right of way located at the rear of these properties.
A landscape plan has been submitted identifying both the location and species of trees, hedges and ground covers.
All of the proposed commercial and community buildings are single storey. In response to a requirement of the Darch neighbourhood centre Local Structure Plan No 51 (Structure Plan No 51) to provide a landmark building on the corner of Kingsway and Carlingford Drive, a metal clad element has been included on the south‑west corner of the neighbourhood centre to provide some height and prominence. The residential component of the development comprises two storey town houses on narrow lots (typically 8 metres by 30 metres). A number of the proposed residences have offices at the rear of the block over the garage. The applicant seeks approval for the location, extent and density of housing on a portion of the subject land rather than development approval for the indicative housing plans included in the development application.
While the internal main street of the development constitutes the primary focus of the , the distribution of uses has sought to, where possible, achieve an active edge to the surrounding streets. The neighbourhood centre, a retail tenancy and the medical centre are orientated to Kingsway. A section of the medical centre faces Ashdale Boulevard and a landscaped feature has been provided facing the intersection with Ardmore Terrace. Generally, rear service elements face Carlingford Drive.
The tavern is located to the north of the neighbourhood centre approximately 42 metres from the Kingsway boundary and 26 metres from the Carlingford Drive boundary. The tavern includes a restaurant/function facility (175 square metres) on the southern side of the building, a lounge area (75 square metres) and sports bar (145 square metres) centrally on the eastern side, and an alfresco area (182 square metres) between the sports bar and liquor store. The western edge of the building comprises the service functions (toilets, kitchen, cool room, freezer, etc). The alfresco area is thus enclosed on the northern, eastern and southern sides by buildings. It is located approximately 42 metres from the western boundary, 63 metres from the southern boundary and 94 metres from the eastern boundary of the subject land. The closest residential lot on the subject land is approximately 75 metres from the alfresco area.
The application includes provision for 355 car parking bays. The applicant is seeking a relaxation of the parking standards of Table 2 under cl 4.2 of DPS 2 based on a shared car parking analysis.
The planning framework
The site is zoned "Urban" under the Metropolitan Region Scheme and "Urban Development" under DPS 2.
Pursuant to Pt 9 of DPS 2, an Agreed Structure Plan, the East Wanneroo Cell 6 Agreed Structure Plan (ASP), has been adopted by the Council in September 2004 and endorsed by the Western Australian Planning Commission (WAPC). The ASP seeks to establish a planning framework to guide the subdivision and development of Madeley and Darch and identifies the subject land as "neighbourhood centre and Community Purposes".
The subject land is also included within Structure Plan No 51, adopted by the Council in August 2004 and endorsed by the WAPC in November of the same year. Structure Plan No 51 seeks to determine the "overall detailed use and form of development for the neighbourhood centre". Structure Plan No 51 zones the land "Commercial" under the provisions of DPS 2, permits a residential density code of "R40" while restricting residential development to no more than 20% of total site area, and restricts retail net lettable area (RNLA) on the subject land to a maximum of 3550 square metres.
In addressing land use, Structure Plan No 51 "Explanatory Report" (Pt 2), suggests that development shall comprise two predominant land uses:
"(a)core retail, incorporating shopping, office, and other commercial and business uses (eg: tavern and child care centre); and
(b)a community purpose facility integrated into the total development of the site"
Section 8 "Statutory Planning Section" (Pt 1) of Structure Plan No 51, under cl 8.1(f) and cl 8.1(g), establishes provisions for the neighbourhood centre and sets out the following requirements for the subject land:
"f)An integrated community purposes site no less than 5000 [square metres] in area is to be well integrated into the overall design of the centre. This land is to be set aside for future acquisition by the City, pursuant to [Pt] 10 of the Scheme;
g)The exact location and shape of the community purpose site is to be determined at the development application stage, but must be capable of accommodating a unit of no less than 600 [square metres] RNLA with an external facade and entry doors facing either Kingsway or Ashdale Boulevard, plus associated car parking and servicing; ... "
DPS 2 designates shops, medical centre, restaurant and liquor store as uses which are permitted ("P" uses) in a "Commercial" zone but which may be subject to any conditions that the Council may wish to impose in granting its approval. Child care centres, taverns, and dwellings are discretionary or "D" uses and are not permitted unless the Council grants its approval after following the procedures set out in cl 6.6.2 of the Scheme. "Community Centre" is a use not defined under the Scheme and as such is an "unlisted use". Under cl 3.3 of the Scheme, the Council may determine whether an "unlisted use" is a permitted use, a discretionary use or a use not permitted. It is understood that the respondent considers "Community Centre" to be a discretionary use, which would accord with Structure Plan No 51.
In considering an application for planning approval, the Council is required to have due regard to a range of matters set out in cl 6.8 of the Scheme. The relevant matters relating to this application are as follows:
"(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area;
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
f)any agreed structure plan prepared under the provisions of [Pt] 9 of the Scheme;
…
(i)the compatibility of a use or development within its setting;
(j)any social issues that have an effect on the amenity of the locality;
…
(n)the preservation of the amenity of the locality;
…
(p)whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
(q)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(y)any relevant submissions received on the application including any relevant submission received by the applicant;"
Clause 4.2 of the Scheme makes provision for the Council to vary development standards and requirements, although cl 4.2.3 constrains the use of this discretion to cases where the Council is satisfied that:
"(a)approval of the proposed development would be appropriate having regard to the criteria set out in Clause 6.8; and
(b)the non‑compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality."
The substantive issue arising in regard to the statutory provisions applicable to the subject land is the weight to be accorded to Pt 2 of Structure Plan No 51.
It was agreed that the Council, in advertising Structure Plan No 51, had included both Pt 1 and Pt 2. It was further agreed that the Structure Plan No 51, endorsed by the WAPC on 19 November 2004, included under cl 2 explicit reference to Pt 2 as follows:
"This Structure Plan comprises the:
(a)Statutory section (Pt 1);
(b)Explanatory section (Pt 2);"
In addition, it was agreed that cl 5 of the statutory section of Structure Plan No 51 purported to provide by way of cl 5(b) guidance on the interpretation to be given to Pt 2:
"Pt 2 of this Structure Plan is for explanatory purposes only in order to provide a descriptive analysis of the Structure Plan."
Beyond the agreements noted above, the weight to be accorded to Pt 2 remains in dispute between the parties. This issue is addressed below.
Clause 9.8.2 of DPS 2 addresses the operation of Agreed Structure Plans as follows:
"9.8.2Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
(a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme."
Clause 9.8.3 states that:
"Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:
…
(g)an Agreed Structure Plan may distinguish between provisions, requirements or standards which are intended to have effect as if included in the Scheme, and provisions, requirements or standards not so intended, and it is only the provisions intended which have that effect. Any other provisions are for guidance or information only, or such other purpose as stipulated in the Agreed Structure Plan documents."
In this context, it is clear that Pt 2 of Structure Plan No 51 is intended "for explanatory purposes only in order to provide a descriptive analysis of the Structure Plan" and is not intended to have effect as if included in the Scheme.
Such an interpretation is supported by the manner in which Council officers dealt with the single objection received when the Structure Plan was advertised. The submission objected to a tavern or any other form of liquor merchant operation within the neighbourhood centre. This objection clearly related to the content of Pt 2 of Structure Plan No 51 rather than Pt 1, which made no reference to land uses other than establishing a "Commercial" zone and limiting residential development to no more than 20% of the total site area of the neighbourhood centre. In assessing the objection, Council officers made no reference to Pt 2 of Structure Plan No 51 and relied on the relevant provisions of the Scheme relating to the "Commercial" zone.
Mr Slarke, counsel for the respondent, submitted that " ... all the explanatory notes represented are essentially what the proponent thought was a good idea[;] they are the proponent's explanatory notes as to why the commercial zoning was a good idea. They don't have any statutory force ... " and should be given "fairly minimal" weight by the Tribunal.
Mr Laskaris, counsel for the applicant, submitted that the following facts were relevant considerations in determining the weight to be accorded to Pt 2 of Structure Plan No 51:
1)The Council has express provisions under cl 9.4.1(b) of the DPS 2 to make modifications to Structure Plan No 51 and has chosen not to do so;
2)Pt 1 makes explicit reference to Pt 2; and
3)Structure Plan No 51 had been formally endorsed by the WAPC.
The Tribunal is of the view that some weight should be accorded to Pt 2 of Structure Plan No 51 given it formed part of the material advertised for public comment by the Council and is explicitly referred to in Pt 1, which was formally adopted by the WAPC. However, the explicit distinction drawn between the two parts in the Statutory Planning section of Structure Plan No 51 clearly indicates that the "descriptive analysis" of Pt 2 would not in any sense be determinative. While it would be difficult to argue that Pt 2 had not created some expectation of future potential land uses, it "does not provide for specific land uses" which are therefore required to be dealt with under the provisions of the cl 3.2 and cl 6.8 of the Scheme. In this context it is, however, reasonable to give Pt 2 some weight in providing guidance on the exercise of discretionary powers under the provisions of cl 3.2 of the Scheme.
It should be noted that Pt 2 of Structure Plan No 51 suggests "[i]n some instances there is also the opportunity to share car parking provision between the different land uses based on the different hours of use for facilities such as the tavern and the community purpose site". However, cl 8.1(b) of Pt 1 of Structure Plan No 51 requires that "[t]he neighbourhood centre shall be developed as a fully integrated centre, with car parking, access, levels, built form and services being designed to integrate land uses throughout the centre". Thus the statutory provisions of Structure Plan No 51 do not explicitly support reciprocal use of car parking provided in the centre.
Issues
The following principal issues arise for determination in the review:
1)whether the impact of the development of a tavern on the subject site will generate unacceptable noise, traffic and antisocial behaviour; and
2)whether the extent of car parking proposed for the overall centre is acceptable.
Whether the impact of the development of a tavern on the subject site will generate unacceptable noise, traffic and antisocial behaviour
Noise
The respondent contended that it is common for noise related complaints to be received by the Council in relation to taverns within a suburban setting. This, the respondent argued, could be related to the servicing of the tavern, activity within the tavern itself, or associated with patrons in adjoining car parking areas. The respondent noted the proximity of residential development, the inclusion of alfresco areas from which it would be difficult to contain noise emissions and potential trading hours as concerns. The respondent concluded that the proposal did not include any technical assessment, commitments or management proposals to demonstrate that the tavern would not create noise problems.
The applicant argued that the layout of the complex has considered attenuating noise and that the tavern building was specifically located in the proposed location to ensure minimal sound paths to the adjacent residential areas. The applicant also submitted that the tavern would not cater for live music and suggested that the operation would be similar to the "Royal Bar and Brasserie" currently operated by the applicant. It was contended that this type of operation will discourage patrons who may be the source of some of the anticipated problem.
Neither party called an expert witness to address the noise issue. However, the Tribunal heard evidence from two town planners in relation to the matter. Mr CP Williams was called by the applicant and Mr P Kotsoglo was called by the respondent. In their joint statement, the planners agreed that it would be "difficult" to contain noise emissions, but not impossible through design solutions. Mr Kotsoglo suggested treatments could be applied to the walls, vegetation and larger barriers that might have some acoustic qualities which could deflect or contain the noise. Mr Williams suggested acoustic engineering solutions which could be recommended or implemented would be relevant in this circumstance, primarily because the facility did not directly abut a residential area.
Counsel for the respondent raised with Mr Williams the possibility of a condition preventing amplified music. He suggested the applicant would need to be consulted directly on the acceptability of such a condition. Mr Slarke also raised the issue of the planning approval extending beyond the current applicant and the potential difficulties the Council could have with a future owner seeking to operate a very different style of business.
Mr Laskaris advised that the applicant agreed to the imposition of a condition which requires noise nuisance and noise emissions from the proposed development to be contained within the requirements of the Environmental Protection (Noise) Regulations1997 (WA).
Mr Slarke referred the Tribunal to Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 where the Tribunal found that only incidental aspects of a development should properly be the subject of a condition which requires the preparation of some plan, detail or specification for approval by the decision‑maker and then require that plan to be implemented. Mr Slarke submitted that a condition cannot lawfully defer for later consideration a non‑incidental aspect of a development, or leave open the possibility that a development carried out in accordance with that consent will be significantly different from the development for which the application was made.
The Tribunal is cognizant of the fact that noise was one of a number of issues for review. The Tribunal concluded that potential noise impacts from the tavern were a relevant consideration but, based on the evidence before it in the current case, could reasonably be dealt with in conditions attaching to any approval. While the Tribunal was assisted by the fact that the applicant had put forward a number of suggested conditions mitigating the concerns raised relating to possible noise emissions, it did not believe that the application of such condition would result in a development significantly different from the development for which the application was made. The "noise conditions" attached to the approval are dealt with below.
Traffic
The respondent raised in its statement of facts, issues and contentions that the assessment of estimated vehicle trips per day generated by the centre and the likely distribution of that traffic included with the application did not provide either the technical basis for the calculation or any assessment of current and future vehicle volumes on the surrounding road network.
The respondent also raised a number of further issues related to traffic:
•increased traffic on a road system that is inadequate to deal with this;
•access locations to Ashdale Boulevard will encourage u‑turns;
•problems with service vehicle movements;
•the community centre design will promote short cutting through Ardmore Terrace and Westport Parade; and
•Kingsway entrance will cause safety problems.
The applicant provided a response to these issues in its statement of issues, facts and contentions, and through the expert witness statement of Mr Levey, a consultant in traffic engineering and transport planning.
In the cross‑examination of Mr Levey, the capacity of the existing road network to absorb further increases in traffic flows was dealt with in some detail. Mr Levey gave evidence that Kingsway currently had adequate capacity although some sections of the road are not to standard. In his view, however, the overall road system had been planned with a neighbourhood centre assumed to be located on the subject land.
He took the Tribunal to the plans to extend Hartman Drive and Mirrabooka Avenue. These future arterial road links would, by facilitating improved north‑south vehicular flows in the locality, and by distributing rather than concentrating traffic, reduce the pressure on Kingsway.
Both the ASP and Structure Plan No 51 included provisions which require infrastructure contributions. The respondent's "without prejudice" draft conditions included at condition (b) the requirement for a contribution which among other items addressed the provision of arterial roads.
Mr Levey was then taken to the impact of the development on the local road network where he provided details on the distribution of traffic from the subject land and potential traffic flows on the future Carlingford Drive.
Mr Laskaris argued that the evidence of Mr Levey had demonstrated that the surrounding road system is adequate to deal with any increased traffic created by the development, and dealt with the specific concerns raised by the respondent.
In assessing the evidence before it in this proceeding, the Tribunal considers that it has been demonstrated that the traffic impacts of the tavern will not place an unacceptable burden on the existing road network in the locality either in the short or long term. In any event, the respondent has in place appropriate mechanisms to ensure the ongoing improvement of the road network in the future should this prove necessary.
Antisocial behaviour
The respondent in its statement of issues, facts, and contentions identified the antisocial behaviour concerns raised in the submissions received by the Council during the submission period relating to the tavern use. These included:
•impact on safety and wellbeing of children at nearby schools;
•increase the likelihood of drink driving;
•increase the noise associated with bands and gatherings; and
•service industrial clientele from outside the suburb.
The respondent also argued that the subject land is located within a newly established family based residential neighbourhood and within close proximity to three existing or proposed schools. The respondent contended that Structure Plan No 51 did not specifically include a tavern and that no formal operational or management commitments were included with the application.
In responding, the applicant argued that:
•it was not aware of any substantiated evidence suggesting negatives associated with the location of the tavern relative to the school site(s);
•the tavern would be required to comply with the appropriate regulations controlling the sale and handling of alcohol and as enforced by Liquor Licensing;
•there are no plans (or allowances in the design) to have bands or DJs; and
•the tavern is intended to operate as a restaurant, café, brasserie and function centre not dissimilar to their client's recent operation of the Royal Bar and Brasserie in East Perth.
The respondent called Mr Iacomella, Manager of Local Area Education Planning at the Swan District Education Office of the Department of Education and Training (Department). Mr Iacomella was a teacher by profession for 25 years prior to joining the planning section of the Department. He provided details on the planning that had been undertaken by the Department for the proposed Landsdale High School on the property to the west of the proposed neighbourhood centre immediately across the future extension of Carlingford Road.
Mr Iacomella told the Tribunal that the Landsdale High School site comprises 9000 square metres and is planned to be developed as a large secondary school catering to a student population of 1500 or more once it is fully developed (from 2013). Of these students, around 400 will be at a post‑compulsory level and a number of these will be 18 years old. It is intended that the school will offer flexible hours to post‑compulsory students and could operate until 8 pm. A development application has been submitted to the Council for stage 1 of the school.
Mr Iacomella also sought to address the potential impacts of the establishment of the tavern on the operation of the planned high school. Mr Iacomella argued that the location of a tavern adjacent to a secondary school is inappropriate for the following reasons:
•Parents do not like the idea of having an establishment selling liquor adjacent to a secondary school site. He supported the view that there were conflicts between a secondary school site and an establishment selling liquor. He considered the potential conflicts to include the behaviour of patrons once they leave the tavern and drink driving.
•The neighbourhood centre is likely to be a significant attractor to students of the school and 18‑year‑old students will be entitled to frequent the tavern.
•Concerns with the security of its staff and for the premises, particularly after normal school hours.
Under cross‑examination, Mr Iacomella conceded that the Department does not have a policy addressing the proximity of schools and licensed premises. He also told the Tribunal that he had not reviewed the development application for the neighbourhood centre in any detail and was not aware how the tavern was proposed to be operated. As to the location of infrastructure on the school site, he told the Tribunal that the majority of the school buildings "will be fronting Westport [Parade]", located centrally on the site, with its major access from Westport Parade, and the school oval will be located adjacent to the tavern.
Based on the evidence submitted, it is difficult for the Tribunal to conclude that the location of a tavern in reasonably close proximity to a high school would generate unacceptable amenity impacts. The Tribunal concludes that in the current context, any potential amenity impacts would be mitigated by the following relevant factors:
•the school buildings will not be developed on the southern portion of the site in the vicinity of the tavern;
•main access is to be provided to the school from Westport Parade, while Mr Levey provided evidence that the majority of vehicles accessing the tavern were likely to utilise Ashdale Boulevard, Carlingford Road (south of Athenny Way) and Kingsway; and
•the nature of the operation proposed (which includes a substantial restaurant/function centre and no live music) was likely to mediate potential amenity impacts.
The evidence provided to the Tribunal in terms of potential antisocial behaviour associated with the tavern focused almost entirely on the issue of the interaction with the proposed school. Mr Williams conceded that, depending on the nature of the facility, the dispersal of patrons may be an issue while Mr Kotsoglo focused on the potential overspill of parking into residential areas.
In regard to the nature of the operation, the Tribunal is of the view that the style of operation and management of licensed premises is not a matter that can, as suggested by Mr Laskaris, simply be left to the Director of Liquor Licensing under the provisions of the Liquor Licensing Act 1990 (WA). He submitted that:
"[The] Tribunal should not be confused with or be drawn into a debate with respect to operation of the proposed tavern ... they are properly issues to be addressed at the liquor licensing stage. There is a whole legislative framework within our jurisdiction of Western Australia that deals with the appropriateness of licensing a particular premises to sell liquor. And questions of proposed use operation are dealt with within that jurisdiction. And there's a clear distinction between planning considerations and proposed operations of particular premises."
The Council, or the Tribunal upon review, is required, in considering an application for planning approval under DPS 2, to have regard to the amenity of the area in which the proposed licensed premises will be established.
The Tribunal in Busen Pty Ltd and City of Subiaco [2007] WASAT 49, Fazio and City of Fremantle [2006] WASAT 169 and the former Town Planning Appeals Tribunal Sistaro Pty Ltd & Anor and City of Joondalup [2003] WATPAT 43 has considered the issue and found that the style of operation and the management regime of licensed premises can have a significant effect on the amenity impacts associated with such facilities.
In this case, the applicant argued that the nature of the proposed tavern and in particular the "type of food offered, the pricing of that food [on] offer and the general ambience and presentation of the venue will discourage patrons who may be the source of some of the anticipated problem".
Both counsel for the respondent and counsel for the applicant agreed that in dealing with the potential amenity impacts of the tavern neither "moral issues" nor "unfounded fears" were relevant. These are views with which the Tribunal concurs.
The Tribunal is of the view that depending on the nature of the operation, a tavern is a use that could be considered on the subject land. However, in order to ensure such impacts are in fact addressed, the Tribunal considers that it would be prudent to impose appropriate conditions upon any approval for the tavern.
Whether the extent of car parking proposed for the overall centre is acceptable
The applicant sought the relaxation of the car parking provisions established by Table 2 of DPS 2 on the basis that "if the peak demand of one development does not coincide with the peak demand of another development, then the overall car parking requirement will be less than the sum of the individual parts".
The development application included a "Shared Parking Analysis", prepared by Uloth Associates, Consultants in Traffic Engineering and Transport Planning, which suggested that while the requirement under the Scheme was 430 car parking bays (Council officers had calculated this figure as 435 bays) the likely peak demand for the Darch neighbourhood centre on Saturday at noon would be 320 car parking bays.
The plans submitted made provision for 355 car parking bays on the subject land, which does not include the provision of car parking for the residential component of the development. This figure represents a theoretical shortfall of approximately 18% from the requirements of the Scheme.
The respondent contended that the applicant did not provide any technical basis upon which the extent of reduced car parking was based, that the subject land was located within a suburban residential area with limited capacity for overflow car parking, and that the Council could only exercise discretion where it was satisfied of the following:
•approval of the proposed development would be appropriate having regard to those matters that it is required to consider under cl 6.8, which includes the adequacy of car parking provision; and
•the non‑compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the area.
The respondent argued that, given the limitations identified above, the exercise of discretion was not appropriate in this instance.
Mr Kotsoglo and Mr Williams provided general comment on the question of reciprocal car parking. It was agreed it was not uncommon for planners to consider reciprocal car parking in neighbourhood centres. Mr Kotsoglo submitted that such a consideration required addressing both the split in peak times of uses and conditions in the general locality. He considered that there was, in this instance, uncertainty in terms of actual peak use of parking. Mr Williams submitted that consideration of reciprocal use of car parking required complimentary or non‑conflicting patterns of peak use, and reasonable proximity between such uses and parking provided. He argued such consideration was logical in mixed use environments.
The only witness with specific expertise in traffic engineering and transport planning to address car parking provision was Mr Levey. No expert witness was called by the respondent to challenge the evidence of Mr Levey.
Mr Levey submitted that he had identified four potentially critical peak periods for parking demand being lunch time and evening periods of both a weekday and Saturday. He had also identified the percentage of the peak demand that is expected at each individual time period by each type of use. He argued that the peak demand for retail development is expected to occur at around lunch time on either a Thursday or a Saturday. Conversely, the peak demand for the tavern and restaurant is expected to occur around 8 pm or 9 pm on a Saturday when there is very little demand for retail car parking.
Under cross‑examination, Mr Levey provided information on the methodology he had applied in calculating the expected car parking demands of the centre and the potential level of reciprocal use of car parking provision, given the nature of uses proposed as part of the development.
The respondent sought to challenge the assumptions and calculations made by Mr Levey in his estimation of parking demand by proposing different scenarios. In provided details of the assumptions made, Mr Levey also provided his expert opinion on the potential effects on the outcomes should some of the assumptions be relaxed. In each case his calculations withstood scrutiny.
The Tribunal is cognisant that the car parking requirements of DPS 2 require that parking be calculated on an individual use basis in accordance with the requirements prescribed in Table 2 which would equate to the provision of 430 (applicant) or 435 (respondent) car parking spaces on site. However, the Tribunal recognises that cl 4.2 of the Scheme provides discretion to consider developments which do not comply with a development standard and Pt 2 of Structure Plan No 51 suggests the possibility of shared car parking.
In Springmist Pty Ltd and Shire of Augusta Margaret River [2005] WASAT 143, the Tribunal determined that where an applicant can demonstrate that the actual parking demand generated by the development would be satisfied by the provision of the proposed number of shared parking bays, a variation to the parking provisions of the Scheme could be considered. In this instance, a convincing argument has been put forward by the applicant in support of the shared parking arrangements in respect to this particular development. The Tribunal is of the view that the applicant has demonstrated, through Mr Levey's evidence, that the actual demand generated by the proposed development is likely to be satisfied by the provision of 355 shared car parking spaces.
The Tribunal is prepared, therefore, to support the extent of discretion required to support the shared car parking use proposed under the provisions of cl 4.2 of the Scheme.
Conclusion
In considering the issues before it in this case, the Tribunal determines as follows. In regard to the potential noise impacts, the Tribunal considers that conditions could be imposed on any approval to ensure any resulting noise impacts are acceptable. In dealing with the traffic impacts of the proposed development, the Tribunal finds that evidence presented had demonstrated that the surrounding road network is adequate to deal with any increased traffic created by the development. In regard to antisocial behaviour, based on the evidence submitted, it is difficult for the Tribunal to conclude that the location of a tavern in reasonably close proximity to a high school would generate unacceptable amenity impacts. Furthermore, in the current context, any potential amenity impacts will be mitigated by a number of relevant factors. The Tribunal therefore determines that subject to a number of conditions a tavern use on the site could be supported.
In dealing with the extent of car parking proposed for the overall centre, the Tribunal finds that the applicant had provided convincing evidence that the actual demand generated by the proposed development would be satisfied by the provision of 355 shared car parking spaces. The Tribunal therefore determines that it is prepared to support the extent of discretion required to support the shared parking use proposed under the provisions of cl 4.2 of DPS 2.
For the above reasons, the Tribunal considers that approval for mixed use development comprising shops, civic building, tavern, restaurant, child care centre, medical centre and residential development (R40) on Lot 100 and Lot 9028 (Nos 213‑225) Kingsway, Darch as shown on plans drawn by Taylor Robinson entitled "0556 Darch neighbourhood centre drawings number 01‑07", dated May 2006, and the "Landscape Plan drawn by Plan E", dated May 2006 is warranted.
Conditions
As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate.
While a range of potential conditions was agreed between the parties, a number of potential conditions remained in dispute. Submissions were made by both parties on these matters.
The conditions in dispute are dealt with below.
Infrastructure contribution
The ASP and Structure Plan No 51 both specify that an infrastructure contribution is required to be calculated in accordance with Pt 10 of the DPS 2.
Pt 10 of the Scheme sets out the method by which the necessary infrastructure contribution must be calculated. The applicant has not challenged these requirements but has sought clarification on the methodology by which such a contribution is calculated.
The respondent has submitted that it is not possible for a condition of planning approval to modify the provisions of Pt 10, and it is undesirable to attempt through a condition to restate the method of calculation detailed in Pt 10 of the Scheme. This is a view with which the Tribunal concurs.
Community purpose site
There is no dispute over the requirement to provide a community purpose site. The respondent proposed the following condition:
"The design being amended to provide for a 600 square metre community building (with associated development such as car parking and servicing) in addition to the public space indicated on the approved plan. The community purpose site sufficient to contain the above shall be set aside as a separate lot pending acquisition by the City as part of the East Wanneroo Infrastructure Contribution Arrangements."
The applicant proposed these alternative conditions:
"The City will have the right to acquire (in accordance with [cl] 10.14 of DPS2) land of a maximum area of 2000 square metres to accommodate the community centre with a built footprint of a maximum of 600 square metres in the location as shown on the approved plans in the south western corner of the site with frontage to both Kingsway and Carlingford Drive. Reciprocal rights of carriageway and parking shall be mutually granted in favour of the community centre and the remnant neighbourhood centre sites. The City will enter into an agreement with the applicant to defer settlement on the transfer of this land for [seven] years from the date of this approval (unless otherwise agreed by the parties) and agrees to the applicant constructing a building for an interim use that is complementary to the neighbourhood centre for the period up to the settlement date. The applicant will use its best endeavours to ensure that the building is in an appropriate condition to be replanned and refitted internally as a community purposes building."
and
"Within [two] years of the date of this approval, the City may elect not to acquire the land referred to above by notice in writing to the applicant in which case the above condition shall be of no further force or effort."
Clause 8.1 (f) and cl 8.1(g) of Pt 1 of Structure Plan No 51 are clear in terms of the statutory requirements. Further to these requirements, it has been agreed between the parties to these proceedings that a site area of 2000 square metres, rather than the 5000 square metres sought by cl 8.1(f), is adequate in this case. The suggestion by the applicant that the Tribunal should seek to apply a condition requiring the respondent to enter subsidiary agreements deferring settlement goes well beyond the statutory requirements and would be inappropriate. Clearly there is no constraint on the parties seeking to establish such arrangements should they prove mutually beneficial.
Carlingford Drive
The respondent proposed the following condition:
"The Carlingford Drive extension being constructed to a full urban standard in accordance with the specifications set out in the City of Wanneroo 'Guidelines for the Development and Subdivision of Land' from Athenny Way to Kingsway prior to the first stage of the development being occupied. These works to include but not be limited to a [6 metre] wide kerbed road pavement, 2.5 metre wide dual use paths along both sides with associated crossing facilities adjacent to the intersection of Kingsway, remaining portion of the street verges graded to a 2% positive grade, the provision of stormwater drainage facilities and street lighting. The road design to make every endeavour to retain the four existing mature trees."
The applicant proposed the condition be amended to delete "2.5 metre wide dual use paths along both sides a 2.5 metre wide dual use path along the eastern side of the extension".
The issue in dispute is whether a dual use path should be required on the western side of Carlingford Drive.
The respondent submitted that:
•it is standard practice to require a dual use path along both sides of a road, such as Carlingford Drive, where heavy pedestrian demand is anticipated;
•there is a nexus between the development and the requirement to create a dual use path on the western side of Carlingford Drive, and the requirement fairly and reasonably relates to the development;
•it is standard practice that the full road (including any pedestrian paths) is constructed at the time of the creation and dedication of the road;
•to the north of the neighbourhood centre a dual use path already exists on the western side of Carlingford Drive; and
•the applicant may be able to recover a proportion of the costs of providing the Carlingford Drive extension in accordance with s 159 of the PD Act.
While the Tribunal recognises the benefits of completing the road and pedestrian paths concurrently, it does not believe it is reasonable to require the applicant developing the neighbourhood centre to provide a dual use path along the side of the high school site on the far side of Carlingford Drive. Evidence was provided that the school development will proceed in a number of stages, all within a reasonable timeframe. It will therefore be open to the Council to reasonably place a condition on development of the school to complete the dual use path on the western side of Carlingford Drive. The condition should therefore be restricted to the requirement for the provision of a dual use path only on the eastern side of Carlingford Drive.
Detailed design of the main street
The respondent proposed the following condition:
"The detailed design of the entire main street and adjacent public space, as highlighted on the approved plan, shall be designed in a manner that provides a high level of pedestrian amenity and activity and be constructed in its entirety prior to the first stage of the development first being occupied to a standard approved by the City. The design should, amongst other things, use a consistent design theme and materials aimed at uniting the various elements of the space in a complementary way; seek to maximise a sense of enclosure; incorporate street furniture, public art, large deciduous canopy trees, opportunities for power outlets for potential market stalls and the like, opportunities for public activities and items to add interest and encourage longer visit length, shade and weather protection."
The applicant submitted that the respondent's proposed condition should be deleted. It is argued that the condition is onerous in that the design of the main street and public space is set out in sufficient detail in the submitted plans for the purposes of development approval and more detailed design considerations are best reserved for the building licence stage of the process.
However, the submitted drawings clearly state that "[a]ll materials colours and aesthetic treatments are notional and subject to change". Given the importance of the main street and the adjacent public space in establishing both the identity and quality of the centre, and the limited detail provided in the 1:1000 and/or 1:500 scale drawings submitted with the application, the request for further detail is not unreasonable. The condition should, however, be far more direct in terms of its requirements than that proposed by the respondent and a condition setting out the specific details required should be attached to the approval.
Parking standards
The respondent proposed the following condition:
"The detailed design of the 'main street' shall be amended to enable sufficient space for vehicle reversing."
The applicant says the respondent's proposed condition should be deleted as the current plans already demonstrate sufficient room within the main street for vehicle manoeuvring.
The respondent argued that it is not possible to determine from the submitted plans whether the angled parking layout in the main street will comply with AS2890. Given this is the issue, the appropriate condition would be one which required compliance with AS2890.
Legal agreement for public access
The respondent has proposed the following condition:
"The landowner shall enter into a legal agreement with the City prior to stage 1 of the development being occupied, outlining arrangements necessary to facilitate continued public access over the public space, ... and providing for City events to be held within the space at no charge, with the exception of any direct costs incurred by the landowners. The legal agreement shall be prepared by the City's solicitors and all costs associated with the preparation of the agreement shall be met by the landowner."
The applicant contended that the respondent's proposed condition is onerous and inappropriate and should be deleted. It is argued that the condition does not reasonably relate to the proposed development and would improperly restrict what the owner could ordinarily do with private land.
Structure Plan No 51 seeks to establish "a fully integrated centre, with car parking, access, levels, built form and services being designed to integrate land uses throughout the centre". Given these aspirations, the condition establishing continued public access over the public space, and providing for City events to be held within the space, is reasonable and should be imposed.
Easement in gross
The respondent proposed the following condition:
"The landowner shall enter into an easement in gross in favour of the public at large pursuant to section 196 of the Land Administration Act [1997 (WA)]. The easement shall cover all car parking areas, pedestrian paths and vehicular accessways. The easement shall be prepared to the City's requirements by the City's solicitors and registered on the title of the subject land prior to the relevant stage of development first being occupied. All costs associated with the preparation of the easement shall be met by the landowner."
The applicant submitted that the respondent's proposed condition imposes unnecessary restrictions on what a landowner can do with private land and should be deleted. The landowner may have good reason in the public interest to close the land to the public from time to time.
The respondent argued proper planning requires that the parking areas, pedestrian paths and vehicle accessways are protected for the life of the development in a way that ensures public access to the whole of the integrated development site will be maintained, even where the land is in separate ownership. The Tribunal concurs with this view.
Construction of parking on community use site
The respondent proposed the following condition:
"The parking bays, driveways and points of ingress and egress shall be designed in accordance with the Australian Standard for Off Street Parking (AS 2890). Such areas shall be constructed, drained and marked prior to the development first being occupied and thereafter maintained to a standard approved by the City. The main street car parking bays, vehicle accessways and external row of car parking bays on the community purpose land shall be constructed by the proponent in conjunction with the commercial component of the development."
The applicant proposed the following alternative condition:
"The parking bays, driveways and points of ingress and egress shall be designed in accordance with the Australian Standard for Off Street Parking (AS 2890). Such areas shall be constructed, drained and marked prior to the development first being occupied and thereafter maintained to a standard approved by the City."
The issue is whether the applicant should be required to construct parking and accessways on the community use site. Cl 8.0(b) in Structure Plan No 51 requires "a fully integrated centre, with car parking, access, levels, built form and services being designed to integrate land uses throughout the centre". As the accessways and car bays on the community purpose site will play an important role in establishing the integrated access and parking system for the centre sought by this provision, the condition is reasonable and should be imposed.
Bike trip end facilities
The respondent has proposed the following condition:
"End of trip bicycle facilities including showers, change rooms and lockers shall be provided for access by centre staff in accordance with the requirements in Austroads' Guide to Engineering Practice Pt 14: Bicycles."
I certify that this and the preceding [144] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
4
4
6