BIRMINGHAM PROPERTIES PTY LTD and CITY OF MELVILLE - [2010] WASAT 155

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BIRMINGHAM PROPERTIES PTY LTD and CITY OF MELVILLE [2010] WASAT 155

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 1 JULY 2010

DELIVERED : 22 OCTOBER 2010

FILE NO/S: DR 501 of 2009

BETWEEN: BIRMINGHAM PROPERTIES PTY LTD
MATAX PTY LTD
Applicants
AND
CITY OF MELVILLE
Respondent

Catchwords:

Town planning Development application Liquor store Impact of use on amenity of nearby residential locality Orderly and proper planning Shopping centre Need for a centre plan Costs

Legislation:

City of Melville Community Planning Scheme No 5, cl 7.8, Sch 1
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 87(2)

Result:

The application for review is allowed
The decision of the City of Melville dated 18 May 2010 is set aside and approval, subject to conditions, is granted

Category: B

Representation:

Counsel:

Applicants: Ms B Moharich
Respondent: Mr L Hitchcock (Representative)

Solicitors:

Applicants: GD Crocket & Co
Respondent: City of Melville

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

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Firestar Enterprise Pty Ltd and Town of Vincent [2007] WASAT 100; (2007) 52 SR (WA) 321
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242
Joubert and City of Joondalup [2005] WASAT 330
SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138
Woolworths Ltd and City of Joondalup [2009] WASAT 41

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings involved an application for review of a decision by the City of Melville to refuse approval for a change of use from a shop to a liquor store at 378 Canning Highway, Bicton.
The two issues that fell to be determined in the matter were:
1)Amenity; and
2)Orderly and proper planning.
In respect of amenity, the City of Melville raised concerns that undesirable behaviour in the area might get worse if the development was allowed. However, the Tribunal found that there was no evidence to support such a contention.
In respect of orderly and proper planning, the City of Melville suggested that a different use may be more appropriate, and that the size of the proposed use was too big. The Tribunal, however, was not satisfied that there were good planning reasons to refuse the application and the application for review was allowed, subject to conditions.
The applicants also sought costs which the Tribunal did not grant.

Introduction

These proceedings involve an application brought by Birmingham Properties Pty Ltd and Maytax Pty Ltd (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to review the refusal by the City of Melville (respondent, City or Council) to grant approval for the change of use of an existing building located at No 378 (Lot 210) Canning Highway, Bicton (site) contained in Certificate of Title 1343/597, which had previously been a shop, and is now a vacant building, to a liquor store.
Following advertising of the proposed development in September 2009, Council, at its meeting of 15 December 2009, refused the application.
An application for review was lodged with this Tribunal on 24 December 2009 and, following mediation, Council again considered the matter on 18 May 2010 when it again refused the application. It is that reconsidered application that is now before this Tribunal for determination.

The subject land

The site is currently occupied by a vacant retail building, totalling 1,768 square metres, comprising a former supermarket and eight speciality shops, totalling 1,642 square metres of floor area. Of that floor area, approximately 1,300 square metres was occupied by the supermarket and the remaining 342 square metres by speciality traders. An internal pedestrian/mall space made up a further 126 square metres.
Although the site abuts Canning Highway, it has no direct access to it and is served by a crossover to Murray Road and two crossovers to Fifth Street.
The site is situated on the western side of the complex known as Melville District Centre. To the east is the Melville Plaza Shopping Centre, which contains 9,156 square metres of retail floor space anchored by a Coles Supermarket of 4,781 square metres in size. The entire complex is served by integrated parking areas and access is also available to the site through the Melville Plaza Shopping Centre parking area.
On the opposite side of Canning Highway, there is a strip of commercial uses comprising showrooms, offices, fast food retailing, and a Liquorland liquor store. To the west and north of the subject site are residential areas comprising mixed single housing and grouped dwellings.

Planning framework

The land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) with a 5 metre wide strip across the front of the site reserved as 'primary regional road' for the future widening of Canning Highway.
At the time, the matter was considered by Council, the Statement of Planning Policy 9 Metropolitan Centres Policy (SPP 9) was in force.
However, SPP 9 has now been replaced by the Activity Centres for Perth and Peel Policy, which was gazetted on 31 August 2010.
The principal local planning document is the City of Melville Community Planning Scheme No 5 (CPS 5) under which the site is zoned 'District Centre'.
A liquor store is a 'D' use within the District Centre zone. A 'D' use means:
use not permitted unless the Council exercises discretion and grants planning approval.
A liquor store is defined under Sch 1 of CPS 5 as:
means any land or buildings the subject of a Store Licence granted under the provisions of the Liquor Licensing Act 1988 (as amended).
Clause 7.8 of CPS 5 outlines the matters to be considered by Council or this Tribunal when considering an application for approval.
The Council also adopted a Local Commercial Strategy ('the Strategy') in 1993, updated in 2006, which identified the Melville Centre as containing 9,205 square metres of retail floor area as of 2002. The Strategy recommended that a 12,000 square metres cap be maintained, noting that the potential remaining for growth (about 2,800 square metres) was sufficient for likely expansion.
Section 3.4 of the Strategy noted:
… The fragmented grouping of two nodes of retail/commercial activities that comprise the centre was recognised as problematic. It recommended that the secondary node to the west of the main centre (along Canning Highway) be phased out or somehow rationalised by way of a comprehensive centre plan involving all the owners in the centre.
It was accepted by all parties that no centre plan has yet been adopted for the Melville Centre. In his statement of evidence, Mr Allerding, a planner called on behalf of the respondent, referred to a number of other clauses of the Strategy which he believed were relevant; namely:
a)Clause 6.5 which states:
…
The spatial analysis of shop type distribution shows that Melville is very well served at the Regional and District Level for comparison shopping but not so well served at the local convenience level. Shopping is definitely a carorientated activity in Melville, especially the east and southeast quadrants. In these areas even daily convenience goods (newspaper, milk and bread shops) are spaced well beyond normal walking distances …
b)Clause 7.2 states:
…
The older larger centres, especially the larger ones such as Melville and Petra Street, will be refurbished and consolidated to enhance their 'Main Street' function, also making use of their 'Frame' areas. …
c)Clause 7.7.4 states:
The Melville Centre is classified as a 'Main Street' District Centre in the Metropolitan Centres Policy (2000)…
…
The whole centre is ageing and will need comprehensive refurbishment in 1015 years. It is also fragmented. It is recommended that any expansion be tied to refurbishment and consolidation of the existing centre, including the possible linking of Dewsons supermarket with the Coles centre by an extended mall and making different arrangements for access and parking. …

Issues

At the time the matter came before the Tribunal for hearing, many of the substantial issues, which had been debated at Council, were resolved, and in its statement of issues, facts and contentions, the respondent set out three issues for consideration, namely:
1.Is the development capable of inappropriately affecting the amenity of residential land in the locality nearby to the subject land ('the Land')[?]
2.Is it consistent with orderly and proper planning to approve the proposed Dan Murphy's Liquor Store ('the Liquor Store') in the absence of a centre plan being developed for the Melville District Centre[?]
3.Having regard to the nature and scale of the Liquor Store[,] is it appropriate to grant approval to the liquor store having regard to the purpose and intended function of the Melville District Centre[?]
In their response, the applicants stated in respect of the first issue:
The Applicants do not agree that this is a standalone test to determine whether the Application should be approved. To the extent that the test is relevant, it is not whether the Liquor Store is 'capable' of affecting amenity, but whether, on the evidence available it 'will' affect amenity. As amended, this test is one of the considerations to which regard must be given pursuant to clause 7.8 of CPS5.
In respect of Issue 2, the applicants stated:
… the Applicants note that this was not an issue considered relevant by the Council of the City of Melville in determining the Application in the first instance, or when reconsidered pursuant to section 31(1) State Administrative Tribunal Act 2004.
At the hearing, the second issue turned out to be resolved. In the joint statement of the planning experts at para 7, they stated:
It is agreed that at present there is not a Centre Plan that exists for the Melville District Centre.
and at para 10 they stated:
Mr Allerding accepts the proposal is not a major development for the purpose of the policy. Whilst Mr Allerding accepts that a Centre Plan would be a preferred planning outcome to better coordinate built form, parking and access between the various ownerships and commercial uses within the Melville Centre, Mr Allerding accepts that given the nature of the proposal utilising an existing building a Centre Plan would not be required in this instance if the Applicant were to accept the Respondent[']s conditions in relation to traffic and parking coordination. If the Applicant were to accept those conditions Mr Allerding considers that a Centre Plan would not be necessary.
As the conditions in respect of traffic and parking were agreed, the second issue was not therefore an issue before the Tribunal.
In respect of the third issue outlined by the respondent, the applicant agreed it was relevant. In the circumstances, the Tribunal at the beginning of the hearing clarified with the parties that the two issues to be determined were:
1)Amenity.
2)Orderly and proper planning.

Issue 1: Amenity

In relation to this issue, Mr Allerding, the planner called on behalf of the respondent, stated at para 99 of his statement of evidence:
I have not attempted for the purposes of this statement to analyse whether there is any link between reported anti-social behaviour in the area, and the availability of alcohol, and nor am I qualified to say whether approval of this liquor store would contribute to anti-social behaviour.
The only evidence called by the respondent in respect of this issue was through Councillor Guy Wieland, who is the ward councillor for the Bicton/Attadale/Alfred Cove area in the City of Melville. In his written statement of evidence, the issues Councillor Wieland referred to largely concerned matters raised with him by residents and feedback he had received in respect of undesirable behaviour in the general area relating to alcohol.
In direct evidence, Councillor Wieland explained that apart from complaints from residents, he himself had inspected areas around Point Walter and Blackwell Reach and found a large amount of alcoholrelated litter which he believed were leftovers from teenagers. When put to him that it could at best be an assumption that these alcoholrelated items came from liquor shops in the area, Councillor Wieland stated, '…one would have to conclude that it was most probably bought in the area'.
At its highest, Councillor Wieland's evidence, in respect of the question of amenity, was a contention based on his own perspective and feedback he had received from residents that current undesirable behaviour in the area would get worse if the proposed development was allowed.
There was no direct evidence put forward by the respondent to support such a contention, and in evidence put forward by the applicants through Mr Caporn, who made enquiries with both the City of Melville officers and the local police, no evidence of any complaints could be found of the matters Councillor Wieland raised.
In Woolworths Ltd and City of Joondalup [2009] WASAT 41 at [76] and [77] the Tribunal stated:
In Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124, the Victorian Civil and Administrative Tribunal in dealing with a proposed alcohol and drug resource centre and neighbourhood residents' objections stated at [56]:
While we can appreciate the concern expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.
In the present case, the Tribunal is not on the evidence before it able to conclude that there is a factual or realistic basis to the fears of the residents. …
The Tribunal is of the same opinion in the present case. It is not uncommon in applications for planning approval for liquorrelated developments for the issue of amenity to be raised and residents to object based on an apprehension or fear of what may happen if the development is approved. Dr Henstridge, the managing director of Data Analysis Australia, who was called on behalf of the applicant, stated at [5.1] of his witness statement
While there have been a number of studies that have attempted to objectively understand the relationship between liquor outlets and harm in their neighbourhood, this is an inherently difficult research question and few studies have addressed it in a convincing manner.
In essence, this issue is largely driven by what people perceive the impacts of a use might be, but the Tribunal must be satisfied that there is a factual or realistic basis for those fears.
In the present case the Tribunal is not so satisfied, particularly in light of the evidence of the proposed management of the store, as outlined by Mr Martin Smith, the General Manager for Dan Murphy's stores in Australia.

Issue 2: Orderly and proper planning

In respect of orderly and proper planning, Mr Allerding concentrated on two main themes, one being the size of the proposed liquor store and the second was inconsistency with what he described as Main Street design principles.
In respect of the size of the proposed liquor store, Mr Allerding at paras 56, 57 and 59 of his witness statement stated:
56.The characteristic of a Dan Murphy's store are distinguishable from other liquor stores as follows:
•A substantially large floor area for the display of liquor products;
•The sale of liquor in bulk; and,
•The sale of liquor at discount prices.
57.Dan Murphy's is best described as a 'destination liquor store'. This entails a larger customer base and relies on and encourages customers to commute a further distance than a local bottle store. The larger range of products and the nature and character of the large scale display of liquor encourages customers to travel longer distances to make 'occasion purchases' for an event or to make bulk purchases.
59.Having regard to the nature of this use specifically it is not considered that the specific function of this form of Liquor Store is consistent with the intended function of the District Centre which seeks to provide. '…a greater local focus... ..essential to ensure local communities have access to a minimum level of services'.
In direct evidence, Mr Allerding made it clear that he was not saying that the use as a liquor store was inappropriate, but rather, it was the size of the proposed development that made it unsuitable. He stated:
I'm not necessarily suggesting the use per se is inappropriate. In fact there are already liquor outlets in the district centre zone. What I'm saying is that you can't just - you have to characterise the nature of the whole development and the nature of the use and we've seen that you can distinguish between a Dan Murphy's type of facility and the other sorts of facilities, whether they be a Woolworths liquor outlet where it's an incidentaltype activity to a main retail outlet or it be a wine and spirits which might be a small locallyfocused liquor outlet. What we have here is something that's quite distinctive to that sort of liquor use and it is really more akin to being something that's of a large retail format.
Further, para 20 of the joint witness statement of the planning experts stated:
Mr Allerding contends that such an operation is inconsistent with the purpose and function of the district centre as anticipated by the 'Activity Centres for Perth and Peel' …
To support this, Mr Allerding referred to the following extract from that policy which stated:
This level of activity is the beginning of a transition to services and employment that has greater focus on local residential needs. The composition and diversity of a district level centre tends to vary throughout Perth and Peel according to the size and maturity of its catchment. Nevertheless, their overall smaller scale enables them to have a greater local community focus and as a result the services and employment provided generally reflect this. The development of this network of centres is essential to ensure local communities have excellent access to a minimum level of services.
In reply to this assertion, Mr Goff, the planner called on behalf of the applicants, stated in direct evidence:
… if you actually look at the Activity Centres Policy and in particular appendix 2 which is on pages 15 and 16, it starts at the top end of the hierarchy and describes the sorts of roles and functions of the Perth central area, then goes down through the strategic primary centre, strategic centres, regional centres and then to the district centre and it makes a statement that the level of activity is the beginning of a transition of service and employment that has greater focus on local residential needs and to me that indicates that district centres effectively have a foot in both camps where they serve larger catchments as well as local needs and consistently district centres throughout the metropolitan area have uses such as discount department stores within them so that they tend to have relatively large catchments. In this particular case the Melville centre doesn't have one of those, but I think the key issue is that district centres are very definitely aimed at satisfying the weekly household requirements for food and groceries and those sorts of nondurable items so that - I don't think the fact that one outlet within a centre has maybe a broader catchment than most or all of the other outlets in that centre is an indication that it is an inappropriate use within a district centre. I think the statement that it is a transition to locally based services simply means that a fair proportion of the outlets within that centre should have that local focus.

As to Main Street design, paras 89, 90 and 91 of his statement of evidence, Mr Allerding stated:
As a Main Street District Centre it is anticipated that development and redevelopment (including refurbishment) would be undertaken in a manner that is consistent with achieving Main Street design principles.
In the 'Interpretations' Section of the Policy, Main Street is defined as follows:
'means mixed land use developments fronting to a street in a manner whereby pedestrian access to the majority of individual businesses can be achieved directly from the street and/or where customer car parks an private property generally do not separate the road reserve boundary from the front of the building.'
It is recognised that the current building is already developed in a big box configuration and it would be unreasonable to require the landowner to redevelop the entire property simply to bring it into line with Main Street design principles. …
In his direct evidence, Mr Allerding also stated:
It is a regional based facility with a regionally based catchment and the design of that facility unquestionably in now [sic] way could achieve a main-street design. It is a big box. So to approve it on this site when there are other sites available - you put the question to say, 'Where else could it go?' This is equivalent to a large format retail type of design. To approve it on this site we're never going to get to achieving what the council wants for these district centres which is to shift out the large format retailing-type activities and bring in the shopping based activities. That's the core of the issue for me and there's other smaller elements that I've mentioned in my statement, but that really encapsulates, I think, the nature of why I think the use in this particular instance shouldn't be approved.
Taking up this theme, Mr Goff in reply stated in respect of the Activity Centres Policy:
So when you actually look at the Activity Centres Policy in more detail and about the transition, what it does say about the activity centres themselves is it talks about main-street design, although it doesn't use the reference to main street but it does quite clearly say - and I'm happy to - in fact I can tell you it's on page 11. It talks about development proponents should demonstrate consistency with a number of things such as centre plans, activity centre developments and address liveable neighbourhoods.
In essence, therefore, the core of the argument the respondent put to the Tribunal in respect of orderly and proper planning, was that the Dan Murphy'stype operation, being a 'destinationtype liquor store', is too big and different from other local bottle shops, and allowing it in this site would make it very difficult for Council to achieve what it sees as the future for these type of centres being more locally focused and designed around a Main Street.
However, it is noted that Mr Allerding, at para 91 of his statement of evidence, stated:
… that the current building is already developed in a big box configuration and it would be unreasonable to require the landowner to redevelop the entire property simply to bring it into line with Main Street design principles.
Furthermore, at the hearing, the respondent confirmed in reply to a question by the Tribunal that if the application had been for a shop, even one as large as a David Jones department store, that would have been permitted. It is only because it is a liquor store that Council's approval is necessary.
Councillor Wieland explained what he described as 'the community' requirement for 'alternative grocery retailers' rather than the proposed development, and stated at para 5 of his statement of evidence:
General grocery competition is required at Melville Plaza due to there being only one grocery outlet being 'Coles', without competition on the same site, and with Coles now introducing its own brand food substitutes, the community is restricted by food types available and price control by having no direct competitor. The community has clearly stated to me that if the Dan Murphy's development application is approved, it will be a 'lost opportunity' in regards to providing a shopping centre with alternative grocery retailers that will give direct competition to Coles and thus providing a direct benefit to the social amenity of the area. The elderly in particular have been clear in their comments regarding the current and future cost of living and that they need grocery retail competition to help them 'make ends meet', providing a competing grocery outlet on this site will allow this financial saving to the shopping centre users.
From a planning perspective, although discretionary, the use applied for is an allowable use and, as the Tribunal stated at [24] of Joubert and City of Joondalup [2005] WASAT 330:
… it is open to the owner to apply for any of the uses allowable in the zoning table and it is not appropriate to dismiss an application merely because the respondent or neighbours might have wished the owner had chosen a different use from that applied for. The use applied for can then be examined to establish whether there is any other planning reason why the use should not be allowed, particularly in the case of 'D' uses, as proposed in this instance.
The Tribunal is of the same view in the current application. Mr Allerding has no objection to the actual use, ie, a liquor store, being allowed. For him, the size of the proposed operation is the principal issue.
However, as he acknowledged, the building is already developed in a configuration that is to remain unchanged and is located in a district centre located on a primary regional road.
In SPB (Australia) Pty Ltd and Ors v Town of Claremont [2003] WATPAT 138, at [90] the Tribunal stated:
… The function for the Tribunal is not, of course, to determine whether a proposed development is the best possible development, having regard to all issues, that might conceivably be placed on the subject site. What the Tribunal must do is to assess whether, in the interests of all orderly and proper planning, and the amenity of the area, and having regard to all applicable planning instruments, a development should be approved. Thus, unless it can be said that a proposed development is contrary to any of those considerations, it should be approved notwithstanding that some may think that a better development of the site might be possible.
In the present case, from the respondent's and the neighbours' viewpoint, a different development may be more welcome. However, the respondent has not demonstrated to the Tribunal that in the particular circumstances of the present case, there are good planning reasons to refuse this application, nor has it shown that the proposed development is contrary to any of the relevant policies or scheme provisions to a degree that would support a refusal. Indeed, Council's planning officers were obviously of the same view when, on two separate occasions, they considered the application for approval and stated:
… the application is found to be compliant with Council's Community Planning Scheme No. 5 and associated policies and is therefore recommended for approval.

Conclusion

In respect of both issues, the Tribunal finds in favour of the applicants. There is no evidence on which the Tribunal can rely that the proposed development would adversely affect the amenity of the locality and there is no reason in the Tribunal's view, based on orderly and proper planning, as to why the proposed development should not be approved.
In the circumstances, the application for review will be allowed and the decision of the respondent, dated 18 May 2010, refusing the application will be set aside and approval, subject to the conditions set out below, granted.

Conditions

As is usual in matters before the Tribunal, prior to the hearing the respondent had prepared a draft set of conditions in the event that the application was allowed, and the applicants had commented in respect of those draft conditions.
Prior to the conclusion of the hearing, the parties confirmed that they had agreed a set of conditions in the event that the Tribunal decided to allow the application. Those conditions will be attached as conditions of the approval and are.
i)A construction management plan shall be submitted to and approved by the Manager Planning and Development Services prior to the issue of a building licence.
ii)A second crossover being installed on the northern Fifth Street elevation as marked in 'RED' on the attached plan. The crossover is to be situated no closer than 10.0 metres from the brick paved pedestrian access way and be a minimum 6.0 metres in width.
iii)Concrete kerbing is to be provided through the main parking area between parking bays along the north/south orientation as marked in 'RED' on the attached plan to prevent cross movement of vehicles throughout the northern parking area.
iv)In order to maintain safe and functional pedestrian and vehicle movement, traffic calming devices are to be installed within the northern car parking area as shown in red on the attached plan to Australian Standards for car parks.
v)Murray Road streetscape to be upgraded to improve safety and visual amenity of the street by way of improved delineation of the loading area.
vi)A minimum of 132 onsite car bays are to be provided. The dimensions of all car parking bays, aisle widths and circulation areas complying with Australian Standard AS2890.1.
vii)A landscaping plan is to be prepared for the site and lodged with the City. As a minimum requirement, the plan must provide:
(a)the location of existing trees which are to be retained;
(b)three trees additional to those shown on the attached plan within the car park area;
(c)planting around the perimeter of the car park on Fifth Street and Murray Road; and
(d)reticulation system to be provided to all planted areas.
Landscaping of the site is to be maintained in accordance with the landscaping plan.
viii)The existing central crossover on Fifth Street is to be deleted as marked in 'RED' on the attached plan and the verge, footpath and kerb reinstated to Council satisfaction.
ix)The new crossover to be created in Murray Road, as marked in 'RED' on the attached plan, for delivery vehicles entering the loading/service area. The crossover is to be constructed with sufficient width to accommodate the swept path of a delivery vehicle approaching from Preston Point Road. Any brick walls which interfere with this movement to be modified to suit.
x)External lighting to be designed, installed and maintained:
(a)with respect to all pedestrian paths and crossings within the site, in accordance with AS1158 Lighting for Roads and Public Spaces;
(b)with respect to car parking areas within the site, and the exterior entrances to all buildings, in accordance with AS1158.3.1 (Cat P);
and external lighting to be hooded and oriented so that the light source is not directly visible to the travelling public or abutting residences in accordance with AS4282 Control of Obtrusive Effects of Outdoor Lighting.
xi)All external building plant, including air conditioner units not to exceed the maximum height of thirteen point five metres (13.5 metres) from natural ground level and shall be appropriately screened.
xii)A separate application for planning approval and a sign's licence is required for all signage. No signage is to be illuminated on the western façade.
xiii)All new security alarm devices to be 'silent monitored' systems to address potential impacts on surrounding residential amenity to the satisfaction of Council.
xiv)In order to address potential impact on public amenity, refuse areas are not to operate before 7.00 am or after 9.00 pm and are to be screened from public view.
xv)Effective mechanical or electromechanical devices must be deployed at all times on all shopping trolleys used on the development site with such devices and deployment to be to the satisfaction of Council. Devices may include, but are not limited to, coin operated release and return systems and electromagnetically triggered perimeter wheel brakes.
xvi)The footpath on Murray Road is to be reinstated at the point where the crossover is removed.
xvii)No service delivery vehicles visiting the site outside the hours of 7.00 am to 7.00 pm Monday to Saturday, and 9.00 am to 7.00 pm Sunday.
xviii)The development complying with any amendments and notations marked in 'RED' as shown on the attached plan.
xix)The façade of the building/s and wall/s is to be treated with nonsacrificial and antigraffiti agent.
xx)Prior to issue of a building licence, the manufacturer's rated noise levels for refrigeration and ventilation are to be submitted to and approved by Council. Immediately following the installation and operating of the equipment, the applicant is to supply to Council the results of a certified test of the noise level of inservice performance.
xxi)Prior to the commencement of any construction, the Council requires the provision of a suitable receptacle for the containment of windblown rubbish. The receptacle (generally a wire mesh cage) should have maximum openings of 100 millimetres; have a base of 4 square metres and a height of 1 metre and a hinged lid. The receptacle should not be allowed to overfill.
xxii)During construction, access to the lot to be via the street frontage only and that no building rubble be permitted to overspill the site.
xxiii)Disabled car parking bay/s to be provided, clearly designated as such, located conveniently to the principal building entrance and to be of minimum dimensions 3.8 metres wide by 6.0 metres deep.
xxiv)All unused crossover(s) to be removed and the kerbing and verge to be reinstated at the applicant/owner's full expense to the satisfaction of the Manager Planning and Development Services.
xxv)Maximum vehicles access gradient ratio of 1.5 being achieved.
xxvi)In accordance with the approved plans, all parking bay/s, driveway/s and points of ingress and egress areas are to be permanently provided, constructed, drained, marked prior to the development first being occupied and thereafter maintained to the satisfaction of the Manager Planning and Development Services. The parking bay/s, driveway/s and points of ingress and egress are to be designed in accordance with the City of Melville Plan Nos 102A2-80E/1 (concrete commercial crossover), 423A287E (bitumen commercial crossover) unless otherwise specified by this approval.
xxvii)Electrical installation to be constructed and maintained to the satisfaction of Western Power in accordance with the SAA Wiring Rules No CC1, Part 1, 1961.
xxviii)All stormwater to be contained on site and stormwater and drainage systems to be designed in accordance with the relevant Australian Standard.

Costs

At the conclusion of the hearing, counsel for the applicants submitted that while recognising the Tribunal's starting position was each party bear its own costs, that in the present case it believed that an order for costs against the respondent would be appropriate on two bases.
The first was that the applicants believed the respondent failed to make a decision on the merits of the case when it had reconsidered the application at its Council meeting on 18 May 2010, and that the respondent had elevated the objections of the residents regarding social harm to such an extent as to disregard all other relevant planning issues.
The second basis related to the respondent's conduct throughout the hearing of the matter before the Tribunal. In this regard, they pointed to the fact that the matter was first refused by Council on 12 December 2009 for two reasons; namely, traffic generation and impact on amenity.
Then, through mediation, the traffic issues were resolved, which was accepted by Council when it reconsidered the matter on 18 May 2010. However, Council maintained its objection on the issue of alleged social harm and raised that as the principal issue before this Tribunal.
The applicants pointed out that the respondent adduced no evidence in relation to that issue, other than the statements by Councillor Wieland which they described as:
… at best are hearsay and in fact are more properly described as the hearsay opinion of residents, those opinions based on unsubstantiated concerns regarding the existing amenity of the area and the likely impact that the proposal will have.
while the respondent in reply had provided evidence from three separate witnesses, namely Dr Henstridge, Mr Caporn and Mr Smith.
The applicants submitted that the respondent had put them to significant expense in replying to the issue of social harm and its effect on amenity, while failing to pursue it in any real way, although it is noted that Mr Caporn's report and information regarding management policies, which Mr Smith dealt with, had been prepared and furnished to Council well before the hearing.
The applicants made similar submissions in respect of the second issue raised by the respondent in its statement of issues, facts and contentions; that is, the lack of a centre plan and the fact that that issue was, in effect, abandoned at the hearing.
In reply, counsel on behalf of the respondent submitted that it could not be said that no attempt was made to address the amenity issue. Although it proved difficult to deal with, the elected member who gave evidence showed that there was a very real concern regarding amenity issues, which are real issues, and one could not say from the evidence they had put forward that they had not dealt with the matters.
As acknowledged by the applicants, and confirmed by the Tribunal in a number of cases, the normal rule in administrative review proceedings is that each party bear its own costs.
However, there are occasions in which the Tribunal will allow costs. In Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246, the Tribunal observed, at [31], that there are several sound policy reasons which support an approach to the exercise of discretion under s 87(2) of the State Administrative Tribunal Act 2004 (WA) in relation to review proceedings under which normally each party should bear its own costs, and stated:
… First, it ensures that individuals who have had an application rejected or not considered by an original decision-maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially 'sits in the shoes' of the original decision-maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit.
In Firestar Enterprise Pty Ltd and Town of Vincent [2007] WASAT 100; (2007) 52 SR (WA) 321 the Tribunal, at [15], stated that:
… The approach taken by the Tribunal to the award of costs in its review jurisdiction has been that there must be some exceptional reason for ordering that one party pay the costs of another. Usually, an exceptional reason will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect.
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242, a case referred to by the applicants in their submissions, the respondent was found to have failed to genuinely attempt to make a decision on the merits of the application and had costs awarded against it.
From a review of Council's minutes of its Ordinary Meeting of 18 May 2010, it might be said that in the present case Council came perilously close to falling into that trap.

However, the hearing before the Tribunal is a hearing de novo, and had it been run solely on the grounds of an alleged adverse impact on amenity, based on the evidence put forward by the City, it may well be that the Tribunal might order costs in favour of the applicants.
However, from an early point in the proceedings, and in particular in its statement of issues, facts and contentions filed in early June 2010, the City raised the planning issue ultimately argued before the Tribunal which could not be described as entirely irrelevant or frivolous.
The application for costs is not without merit; however, as the planning issue raised before the Tribunal had some traction, the Tribunal is not satisfied that the conduct of the matter by the respondent on this occasion falls into the category where costs should be awarded.
In the circumstances, the costs application will be dismissed.

Orders

1.The application for review is allowed.
2.The decision of the City of Melville, dated 18 May 2010, is set aside and development approval is granted for the proposed use as a liquor store, subject to the following conditions:
(i)A construction management plan shall be submitted to and approved by the Manager Planning and Development Services prior to the issue of a building licence.
(ii)A second crossover being installed on the northern Fifth Street elevation as marked in 'RED' on the attached plan. The crossover is to be situated no closer than 10.0 metres from the brick paved pedestrian access way and be a minimum 6.0 metres in width.
(iii)Concrete kerbing is to be provided through the main parking area between parking bays along the north/south orientation as marked in 'RED' on the attached plan to prevent cross movement of vehicles throughout the northern parking area.
(iv)In order to maintain safe and functional pedestrian and vehicle movement, traffic calming devices are to be installed within the northern car parking area as shown in red on the attached plan to Australian Standards for car parks.
(v)Murray Road streetscape to be upgraded to improve safety and visual amenity of the street by way of improved delineation of the loading area.
(vi)A minimum of 132 onsite car bays are to be provided. The dimensions of all car parking bays, aisle widths and circulation areas complying with Australian Standard AS2890.1.
(vii)A landscaping plan is to be prepared for the site and lodged with the City. As a minimum requirement, the plan must provide:
(a)the location of existing trees which are to be retained;
(b)three trees additional to those shown on the attached plan within the car park area;
(c)planting around the perimeter of the car park on Fifth Street and Murray Road; and
(d)reticulation system to be provided to all planted areas.

Landscaping of the site is to be maintained in accordance with the landscaping plan.
(viii)The existing central crossover on Fifth Street is to be deleted as marked in 'RED' on the attached plan and the verge, footpath and kerb reinstated to Council satisfaction.
(ix)The new crossover to be created in Murray Road, as marked in 'RED' on the attached plan, for delivery vehicles entering the loading/service area. The crossover is to be constructed with sufficient width to accommodate the swept path of a delivery vehicle approaching from Preston Point Road. Any brick walls which interfere with this movement to be modified to suit.
(x)External lighting to be designed, installed and maintained:
(a)with respect to all pedestrian paths and crossings within the site, in accordance with AS1158 Lighting for Roads and Public Spaces;
(b)with respect to car parking areas within the site, and the exterior entrances to all buildings, in accordance with AS1158.3.1 (Cat P);

and external lighting to be hooded and oriented so that the light source is not directly visible to the travelling public or abutting residences in accordance with AS4282 Control of Obtrusive Effects of Outdoor Lighting.
(xi)All external building plant, including air conditioner units not to exceed the maximum height of thirteen point five metres (13.5 metres) from natural ground level and shall be appropriately screened.
(xii)A separate application for planning approval and a sign's licence is required for all signage. No signage is to be illuminated on the western façade.
(xiii)All new security alarm devices to be 'silent monitored' systems to address potential impacts on surrounding residential amenity to the satisfaction of Council.
(xiv)In order to address potential impact on public amenity, refuse areas are not to operate before 7.00 am or after 9.00 pm and are to be screened from public view.
(xv)Effective mechanical or electromechanical devices must be deployed at all times on all shopping trolleys used on the development site with such devices and deployment to be to the satisfaction of Council. Devices may include, but are not limited to, coin operated release and return systems and electromagnetically triggered perimeter wheel brakes.
(xvi)The footpath on Murray Road is to be reinstated at the point where the crossover is removed.
(xvii)No service delivery vehicles visiting the site outside the hours of 7.00 am to 7.00 pm Monday to Saturday, and 9.00 am to 7.00 pm Sunday.
(xviii)The development complying with any amendments and notations marked in 'RED' as shown on the attached plan.
(xix)The façade of the building/s and wall/s is to be treated with nonsacrificial and antigraffiti agent.
(xx)Prior to issue of a building licence, the manufacturer's rated noise levels for refrigeration and ventilation are to be submitted to and approved by Council. Immediately following the installation and operating of the equipment, the applicant is to supply to Council the results of a certified test of the noise level of inservice performance.
(xxi)Prior to the commencement of any construction, the Council requires the provision of a suitable receptacle for the containment of windblown rubbish. The receptacle (generally a wire mesh cage) should have maximum openings of 100 millimetres; have a base of 4 square metres and a height of 1 metre and a hinged lid. The receptacle should not be allowed to overfill.
(xxii)During construction, access to the lot to be via the street frontage only and that no building rubble be permitted to overspill the site.
(xxiii)Disabled car parking bay/s to be provided, clearly designated as such, located conveniently to the principal building entrance and to be of minimum dimensions 3.8 metres wide by 6.0 metres deep.
(xxiv)All unused crossover(s) to be removed and the kerbing and verge to be reinstated at the applicant/owner's full expense to the satisfaction of the Manager Planning and Development Services.
(xxv)Maximum vehicles access gradient ratio of 1.5 being achieved.
(xxvi)In accordance with the approved plans, all parking bay/s, driveway/s and points of ingress and egress areas are to be permanently provided, constructed, drained, marked prior to the development first being occupied and thereafter maintained to the satisfaction of the Manager Planning and Development Services. The parking bay/s, driveway/s and points of ingress and egress are to be designed in accordance with the City of Melville Plan Nos 102A2-80E/1 (concrete commercial crossover), 423A287E (bitumen commercial crossover) unless otherwise specified by this approval.
(xxvii)Electrical installation to be constructed and maintained to the satisfaction of Western Power in accordance with the SAA Wiring Rules No CC1, Part 1, 1961.
(xxviii)All stormwater to be contained on site and stormwater and drainage systems to be designed in accordance with the relevant Australian Standard.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER