Bovis Lend Lease and Town Of Cambridge
[2007] WASAT 242
•17 SEPTEMBER 2007
BOVIS LEND LEASE and TOWN OF CAMBRIDGE [2007] WASAT 242
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 242 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:231/2007 | 4 SEPTEMBER 2007 | |
| Coram: | MS M CONNOR (MEMBER) | 17/09/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The decision of the respondent is set aside and conditional approval granted for physical alterations to existing building | ||
| B | |||
| PDF Version |
| Parties: | BOVIS LEND LEASE TOWN OF CAMBRIDGE |
Catchwords: | Town planning Development Change of use from "Shop" (Video Store) to "Office" (Bank) Physical alterations to existing building Whether planning approval required for change of use given orders of the former Town Planning Appeal Tribunal Traffic impact Safety of pedestrians associated with illegal parking of vehicles on verge area Need for the placement of bollards Loss of landscaping Visual amenity Need for provision of armoured vehicle embayment Suitability of use in "District Centre" |
Legislation: | Town of Cambridge Town Planning Scheme No 1, cl 32, cl 33, Sched 1 |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 28 June 2007 to refuse a change of use from "Shop" (Video Store) to "Office" (ANZ bank) at Floreat Forum (Premises Corner The Boulevard and Floreat Avenue) is set aside and a decision is substituted that planning approval is granted to the proposed physical alterations to Tenancy 98 on Lot 100 (No 5) Howtree Place, Floreat as shown on plans A.01 Rev B; A.03 Rev C; A.04 Rev B; A.07 Rev B; A.08 Rev D and A.09 Rev B drawn by Scatena & Associates Architects; amended plans attached to correspondence from Bovis Lend Lease date stamped by the Town of Cambridge 1 May 2007 and the feature survey Dwg No 07113 drawn by Brook Marsh Pty Ltd, subject to the following conditions: ,(i) Only one ATM being provided in the new tenancy and on The Boulevard façade;,(ii) The existing handrail between the egress road and Tenancies 96 and 98 being extended for the full length of the building as shown on the amended plans dated 1 May 2007;,(iii) Four designated parking bays for bank customers being provided on the upper level shopping centre car park as shown on the amended plans dated 1 May 2007;,(iv) "No standing" directions being painted on the egress road adjacent to the proposed bank.,(v) A detailed landscaping plan, including a list of plants and landscaping and reticulation, shall be submitted to and approved by the Town prior to the occupancy of the building. The landscaping of the area in front of the building shall assist in ameliorating the visual impact of the ATM facility and the new entrance to the building from the surrounding roads. All landscaping works in the approved landscaping plan shall be established within 3 months of the occupancy of the building and maintained thereafter by the owner(s)/occupier(s).,(vi) Suitable arrangements being made to the satisfaction of the Town of Cambridge for the provision of an armoured vehicle embayment. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOVIS LEND LEASE and TOWN OF CAMBRIDGE [2007] WASAT 242 MEMBER : MS M CONNOR (MEMBER) HEARD : 4 SEPTEMBER 2007 DELIVERED : 17 SEPTEMBER 2007 FILE NO/S : DR 231 of 2007 BETWEEN : BOVIS LEND LEASE
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning Development Change of use from "Shop" (Video Store) to "Office" (Bank) Physical alterations to existing building Whether planning approval required for change of use given orders of the former Town Planning Appeal Tribunal Traffic impact Safety of pedestrians associated with illegal parking of vehicles on verge area Need for the placement of bollards Loss of landscaping Visual amenity Need for provision of armoured vehicle embayment Suitability of use in "District Centre"
Legislation:
Town of Cambridge Town Planning Scheme No 1, cl 32, cl 33, Sched 1
(Page 2)
Result:
The application for review is allowed
The decision of the respondent is set aside and conditional approval granted for physical alterations to existing building
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Mr S Allerding
Solicitors:
Applicant : Hardy Bowen
Respondent : Allerding Associates
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 Bovis Lend Lease applied to the State Administrative Tribunal for review of the Town of Cambridge's decision to refuse a change of use from "Shop" (Video Store) to "Office" (Bank) for Tenancy 98 on Lot 100 (No 5) Howtree Place, Floreat.
2 The Tribunal raised a preliminary issue with the parties as to whether planning approval was required for the change of use of the subject building to "Office" given the orders made by the former Town Planning Appeal Tribunal in 2001, approving a range of suitable uses for the freestanding retail outlets. It was the view of the parties that, notwithstanding these orders, planning approval was required for the proposed change of use.
3 The Tribunal did not agree with the submissions of the parties and determined that the condition imposed by the former Town Planning Appeal Tribunal in the "2001 approval" gave express approval to specific uses as defined in the Town of Cambridge Town Planning Scheme No 1, which included "Office" and by definition, a bank. The Tribunal considered that the condition in effect gave prior approval of the Council to the use of the subject building for "Office", thereby satisfying the need for planning approval under cl 32 of the Scheme. The Tribunal found that there was no need for further planning approval to use the subject building for a bank, although planning approval was required for the proposed physical alterations to the building.
4 Notwithstanding the above finding, the Tribunal considered the merits of the case and considered the issues in contention, which were identified as:
(i) non-compliance with Planning Policy 4.1 with regard to the need to ensure safe movement of vehicular traffic and minimisation of conflict between vehicles, pedestrians and cyclists as a result of the proposed bank and ATM location;
(ii) the proposed use is isolated from required car parking and pick up/drop off vehicle points for customers and armoured vehicles associated with the bank and its activities;
(Page 4)
- (iii) the use is classified as "AA" under the Town Planning Scheme requiring Council approval which in this case, having regard to (i) and (ii) above, it is considered that the proposal would be detrimental to the amenity of the area.
5 The Tribunal found that the proposed change of use from video store to bank would not result in a greater propensity for unsafe vehicular and pedestrian movement, both within the centre and on surrounding roads and therefore considered the proposed development to be consistent with Planning Policy 4.1 - Design of Non-Residential Development.
6 In regards to issue (ii) the focus of the arguments concentrated on the provisions of a dedicated embayment for armoured vehicles. Three alternative locations were canvassed, none of which had been sufficiently investigated to conclusively determine that they were workable options. The failure to conclusively identify a suitable location for an embayment for an armoured vehicle was not considered to be an impediment that warranted refusal of the application. The Tribunal considered that this matter could be dealt with as a condition of approval.
7 The Tribunal determined that the proposed change of use was considered to be consistent with the functions and intent of the Forum "District Centre" as outlined in the "Floreat" Precinct Policy 7.3 of the Manual and would not have a detrimental impact on the amenity of the area. The application for review was allowed and conditional planning approval granted for the proposed physical alteration to the existing building.
Introduction
8 Bovis Lend Lease (applicant) lodged an application for planning approval with the Town of Cambridge (respondent) for a change of use from "Shop" to "Office" for Tenancy 98 (subject building) on Lot 100 (No 5) Howtree Place, Floreat (subject land). The intended occupant of the premises is the ANZ bank. Although the "Application for Approval" did not specify "and proposed alterations to the existing building" the accompanying plans detailed the required physical alterations to the building necessary to accommodate the office use, which include a new entry point to the building and associated works and the installation of an ATM facility. It would appear that the proposed alterations were considered by the respondent as forming part of the planning application as numerous references were made to the proposed alterations in the reports presented at the Council meetings. Given that the respondent has
(Page 5)
- had the opportunity to consider the proposed alterations in its initial determination and has referred to the proposed alterations in its evidence as part of this review, the Tribunal is prepared to consider the proposed alterations as forming part of this application for review.
9 The planning application was refused by the respondent at its meeting of 26 June 2007 for the following reasons:
"(i) non compliance with Planning Policy 4.1 with regard to the need to ensure safe movement of vehicular traffic and minimisation of conflict between vehicles, pedestrians and cyclists as a result of the proposed bank and ATM location;
(ii) the proposed use is isolated from required car parking and pick up/drop off vehicle points for customers and armoured vehicles associated with the bank and its activities;
(iii) the use is classified as "AA" under the Town Planning Scheme requiring Council approval which in this case, having regard to (i) and (ii) above, it is considered that the proposal would be detrimental to the amenity of the area."
10 The applicant, on 2 July 2007, made application to have the decision of the respondent reviewed by the Tribunal.
Preliminary issue
11 A preliminary issue was raised by the Tribunal with the parties as to whether planning approval was required for the change of use of the subject building to "Office", given the orders made by the former Town Planning Appeal Tribunal (TPAT) in relation to the subject building in 2001 (2001 approval), more particularly order (o), being:
"(o) The free standing retail outlets proposed for the corner of Floreat Avenue and The Boulevard be approved for any of the following purposes as defined in the Town of Cambridge Town Planning Scheme No 1: "Shop", Consulting Rooms", "Group Consulting Rooms", "Office" - and to the extent not encompassed by any of the aforementioned uses, "Video Store", PROVIDED THAT to the extent that the scope of the aforementioned
- uses might indicate otherwise, "Take Away Food Outlet", "Take Away Food Outlet (Drive Through)", and any fast food outlet, are not permitted."
12 In essence, the position of the parties was that notwithstanding the orders of TPAT in relation to the scope of uses approved for the subject buildings, planning approval is required for the proposed change of use.
13 The parties submitted that cl 32 of the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme) requires that a change of use of land, unless otherwise provided for in cl 33, requires the prior approval of the Council in each case. It was considered that the proposed use did not fall within the exceptions as specified in cl 33 and albeit that the proposed use fell within the scope of what TPAT permitted in the 2001 approval, that did not make the approved uses "P" uses for the purposes of the Scheme, thereby necessitating the granting of approval under cl 32.
14 Further, the parties submitted that the orders of the TPAT related to more than one retail outlet and that the approval of a range of uses attached to one or more of the retail outlets. The parties considered that it was difficult to make a leap to say that all of the uses were approved for each of the outlets without there being a further need for compliance with cl 32 of the Scheme.
15 The respondent went on further to say that as the 2001 approval was valid for a period of two years and that the use of the subject building for "Office" had not been taken up within the specified time, inferring that the approved uses, other than the "Video Store" use, were no longer valid.
16 The Tribunal does not agree with the submissions made by the parties. Clearly the intent of the condition is to identify a range of approved uses for the retail outlets. This is not an unusual occurrence for developments that involve numerous tenancies. The range of approved uses is consistent with uses that one would reasonably expect a shopping centre to accommodate. The condition gives express approval to specific uses as defined in the TPS 1, which includes "Office". An "Office" as defined in Sch 1 of TPS 1 specifically mentions "bank". The consent was effected by the construction of the subject buildings and the use of the subject building for a video store, and as such the approval remains valid.
17 The condition in effect gives the prior approval of the Council to the use of the subject building for "Office", satisfying the need for planning approval under cl 32 of the Scheme. The Tribunal finds that there is no need for further planning approval to use the subject building for a bank,
(Page 7)
- although planning approval is required for the proposed physical alterations to the building.
18 However, if I am wrong in that finding I have considered the merits of the case and set out below the reasons for my decision.
Issues
19 The grounds for refusal outlined in the Notice dated 28 June were identified as the issues in contention in the proceedings, these being:
"(i) non compliance with Planning Policy 4.1 with regard to the need to ensure safe movement of vehicular traffic and minimisation of conflict between vehicles, pedestrians and cyclists as a result of the proposed bank and ATM location;
(ii) the proposed use is isolated from required car parking and pick up/drop off vehicle points for customers and armoured vehicles associated with the bank and its activities;
(iii) the use is classified as "AA" under the Town Planning Scheme requiring Council approval which in this case, having regard to (i) and (ii) above, it is considered that the proposal would be detrimental to the amenity of the area."
20 However, through the evidence of Mr Meggit, consultant town planner and Mr Weerakody, a resident of The Boulevard, the respondent raised the issue of visual amenity as a consequence of resolving the identified safety issue and the change of orientation of the building resulting from the proposed alterations. This related issue is dealt with in the consideration of issue (i) above.
Non-compliance with Planning Policy 4.1 with regard to the need to ensure safe movement of vehicular traffic and minimisation of conflict between vehicles, pedestrians and cyclists as a result of the proposed bank and ATM location
21 The respondent contended that the proposed development was non-compliant with as above - "Design of Non-Residential Development" (Policy 4.1) as the proposed bank and ATM would result in a greater propensity for unsafe vehicular and pedestrian movements, both within
(Page 8)
- the centre and on surrounding roads, significantly affecting the amenity of the area.
22 As a part of the planning application, the applicant commissioned Mr Benham Bordbar, a traffic engineer, to prepare a "Traffic Impact Statement Report". His report concluded that:
• the proposed change of use would result in minimisation of travel and reduced traffic through the shopping centre and on the surrounding road network;
• there would be a reduction of vehicular and pedestrian conflicts and an enhancement on the amenity as the proposed use does not generate evening or weekend trips;
• there would be no increase in demand for car parking, and adequate and designated parking will be available at all time during the hours of operation; and
• the proposal allows for integration of bank purpose trips as part of the shopper's multi-purpose trips.
23 The respondent was not persuaded that the criteria as contained in Policy 4.1 had been satisfied, resulting in a refusal of the application.
24 The respondent called evidence from Ms Louise Round, a traffic engineer, to consider the impacts of the ATM machine. Ms Round concluded that:
• an ATM facing onto The Boulevard was not in keeping with The Boulevard's function as a District Distributor "A" road;
• pedestrian safety would be compromised by any vehicles attracted to parking on the footpath; and
• vehicle safety would be compromised by any vehicles attracted to park on the footpath, or on The Boulevard.
25 Mr Bordbar was called by the applicant to give evidence on this issue.
26 In accordance with standard practice, the experts conferred after they had each exchanged their written evidence, prepared a joint witness statement which identified a high degree of agreement on the issues.
(Page 9)
- Given the extent of the agreement it is considered appropriate to set out the agreed matters:
"(i) The proposed bank land use will generate significantly less traffic than the approved shop/video store land use.
(ii) The opening hours of the proposed bank do not coincide with the peak operating times of the shopping centre which is on Thursday evenings and Saturdays.
(iii) It is anticipated that parking will be available on the upper deck parking area during the bank opening hours.
(iv) Due to lower traffic generation and no operations during the shopping centre peak times, the proposed bank will result in safer vehicular traffic and reduce vehicular, pedestrian and cyclist conflicts compared to the approved shop/video store use.
(v) It is possible that some of the bank patrons who want to use the ATM will park illegally on the Boulevard verge in the westbound direction. This situation will impact on the safety of pedestrians walking on the southern verge of Boulevard.
(vi) Vehicles can be prohibited from parking within the southern verge of The Boulevard by placing appropriate and suitable bollards within this verge."
28 Mr Bordbar considered that the bollards would need to be located at least 0.5 metres from the road carriageway, extending from the corner of The Boulevard and Floreat Avenue to the exit ramp to the shopping centre, at a separation distance of between 4 - 5 metres. He conceded that this would most probably require a reduction in the width of the existing footpath.
(Page 10)
29 Ms Round considered that the placement of bollards would necessitate the relocation of the existing footpath to align with the footpath on the adjacent lot. The consequence of this would be a reduction in the available landscaping area in front of the existing building and the footpath being located on private property. Mr Bordbar counter argued that any loss of landscaping could be reintroduced between the road carriageway and the new alignment of the footpath. He conceded that any landscaping in this area would need to be low level to ensure sight lines.
30 The respondent submitted that the loss of landscaping in this location, together with the physical alterations to The Boulevard elevation, changed the orientation and focused the development, both from a traffic and visual perspective, outwards on to the surrounding roads. The respondent argued that this development would be the only development in the centre that would have direct access to the surrounding streets and that such a reconfiguration was contrary to the principles of the Planning Policy 7.3 – Floreat (Policy 7.3). Mr Weerakody considered the proposal to be inconsistent with the 2001 approval as condition (o)(b) of the orders of TPAT required that there be no entry nor exit to the freestanding outlet building from The Boulevard or Floreat Avenue sides of the building. He contended that the visual prominence of the entry point and the loss of landscaping in the setback area would focus attention towards the commercial building, whereas the 2001 approval sought to reduce the impact of any commercial activity by restricting access and requiring landscaping in the setback area.
31 The Tribunal accepts that there is the opportunity for vehicles to park illegally on The Boulevard verge/footpath to gain quick access to the ATM and that this behaviour would create a safety issue for pedestrians using the footpath. Further, the Tribunal accepts that the safety concerns can be managed by placing appropriate and suitable bollards within the verge area. However, the Tribunal is not convinced that such remedy is necessary in this instance. As Mr Bordbar observed, in most instances signage is provided to prohibit vehicles parking on verges and that it is only in very rare cases that such physical measures are provided. Mr Bordbar in his evidence told the Tribunal that "we [the experts] jointly recommended bollards because this matter seems to be more sensitive than normal."
32 The application proposes a change of use from a video store to a bank with an ATM facility. The "convenience" characteristics as described for an ATM can also be ascribed to a video store, as the desire
(Page 11)
- for quick access to return a video could be considered to be akin to the desire for quick access to the ATM. The Tribunal acknowledges that the opening to the video store was from the exit ramp onto The Boulevard, whereas the ATM will be facing onto The Boulevard, however due to the proximity of one to the other this is considered to be of little consequence.
33 The respondent did not adduce any evidence to indicate that there had been a problem with illegal parking on The Boulevard verge/footpath and pedestrian safety connected with the operation of the video store. Given the common characteristic of desire for quick access for the existing approved use and the proposed use, the Tribunal does not consider the safety issue to be of such a magnitude as to warrant the placement of bollards along The Boulevard frontage. It is also noted that the respondent did not recommend as one of the "without prejudice" draft conditions of the approval, the requirement for the placement of bollards along The Boulevard frontage.
34 However, there is an opportunity to ameliorate the visual prominence of the proposed physical alterations to the existing building by requiring suitable screening landscaping in front of the building.
35 The Tribunal finds that the proposed change of use from "Shop" (Video Store) to "Office" (Bank) would not result in a greater propensity for unsafe vehicular and pedestrian movements, both within the centre and on surrounding roads and therefore considers the proposed development to be consistent with Policy 4.1.
The proposed use is isolated from required car parking and pick up/drop off vehicle points for customers and armoured vehicles associated with the bank and its activities
36 The focus of the respondent in relation to this issue concentrated on the provision of a dedicated embayment for armoured vehicles. There was no evidence adduced by the respondent to support the assertion that the proposed used was isolated from the required car parking and pick up/drop off vehicle points for customers.
37 Concern was expressed that the armoured vehicles may not be able to access the upper level of the car park due to weight restrictions. Mr Bordbar in his witness statement identified three other possible locations for an embayment. These included, the southern part of the existing service station; Floreat Avenue to the south of the existing building; and The Boulevard in the immediate vicinity of the proposed
(Page 12)
- ANZ bank. None of these options had been sufficiently investigated to conclusively determine that they were workable options.
38 The fact that at this time there is no identified dedicated embayment for armoured vehicles does not warrant refusal of the application. This matter is considered to be ancillary to the use and can be dealt with as a condition of any approval.
The use is classified as "AA" under TPS 1 requiring Council approval which in this case, having regard to (i) and (ii) above, it is considered that the proposal would be detrimental to the amenity of the area
39 The proposed use is considered to be consistent with the functions and intent of the Forum "District Centre" as outlined in Policy 7.3. For the above reasons, the Tribunal does not consider that the proposal will have a detrimental impact on the amenity of the area and as such can be supported.
Conditions
40 As required by the direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, as follows:
"a) Only one ATM being provided in the new tenancy and on The Boulevard façade; and
b) The existing handrail between the egress road and Tenancies 96 and 98 being extended for the full length of the building as shown on the amended plans; and
c) Four designated parking bays for bank customers being provided on the upper level shopping centre car park as shown on the amended plans; and
d) "No standing" directions being painted on the egress road adjacent to the proposed bank."
41 The suggested conditions were accepted by the applicants.
42 The Tribunal considers that an additional two conditions should be imposed on the approval, the first being the provision of suitable landscaping to the front of the building to ameliorate the visual impact of the physical alterations to the building, a condition which is consistent with the 2001 approval. The second condition should require suitable
(Page 13)
- arrangements being made to the respondent's satisfaction for the provision of an armoured vehicle embayment.
Orders
43 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 28 June 2007 to refuse a change of use from "Shop" (Video Store) to "Office" (ANZ bank) at Floreat Forum (Premises Corner The Boulevard and Floreat Avenue) is set aside and a decision is substituted that planning approval is granted to the proposed physical alterations to Tenancy 98 on Lot 100 (No 5) Howtree Place, Floreat as shown on plans A.01 Rev B; A.03 Rev C; A.04 Rev B; A.07 Rev B; A.08 Rev D and A.09 Rev B drawn by Scatena & Associates Architects; amended plans attached to correspondence from Bovis Lend Lease date stamped by the Town of Cambridge 1 May 2007 and the feature survey Dwg No 07113 drawn by Brook Marsh Pty Ltd, subject to the following conditions:
(i) Only one ATM being provided in the new tenancy and on The Boulevard façade;
(ii) The existing handrail between the egress road and Tenancies 96 and 98 being extended for the full length of the building as shown on the amended plans dated 1 May 2007;
(iii) Four designated parking bays for bank customers being provided on the upper level shopping centre car park as shown on the amended plans dated 1 May 2007;
(iv) "No standing" directions being painted on the egress road adjacent to the proposed bank.
(v) A detailed landscaping plan, including a list of plants and landscaping and reticulation, shall be submitted to and approved by the Town prior to the occupancy of the building. The landscaping of the area in front of the building shall assist in
- ameliorating the visual impact of the ATM facility and the new entrance to the building from the surrounding roads. All landscaping works in the approved landscaping plan shall be established within 3 months of the occupancy of the building and maintained thereafter by the owner(s)/occupier(s).
- (vi) Suitable arrangements being made to the satisfaction of the Town of Cambridge for the provision of an armoured vehicle embayment.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
0
1