BP Australia Pty Ltd and City Of Mandurah - [2008] WASAT 161

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BP AUSTRALIA PTY LTD and CITY OF MANDURAH [2008] WASAT 161

MEMBER: JUDGE J CHANEY (ACTING PRESIDENT)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 10 JUNE 2008

DELIVERED : 21 JULY 2008

FILE NO/S: DR 355 of 2007

BETWEEN: BP AUSTRALIA PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Development application Redevelopment of an existing service station site Deemed refusal Substitute amended plans Land zoned "Precinct Development" No approved Precinct Plan for the area Precinct Plan adopted as a Local Planning Policy Weight to be given to the Draft Halls Head Town Centre Precinct Plan Relevance of Draft Developer Contributions Scheme Acceptability of the urban design character of the proposed development Requirement for built form at the street edge Emphasis of the street corner with a building of prominent architecture Avoidance of unsafe, poorlysurveilled areas around buildings Activation of the street edge pedestrian environment Visibility of the service station forecourt Passive surveillance and the public domain

Legislation:

City of Mandurah Town Planning Scheme No 3, cl 4.12, cl 4.14, cl 7.7, cl 7.11, cl 9.6

Result:

Application for review allowed and conditional development approval granted

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr C Slarke

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In July 2007, BP Australia Pty Ltd made an application to the City of Mandurah seeking approval for the redevelopment of an existing service station site located at No 2 (Lot 801) Guava Way, Halls Head in Mandurah.
When the City of Mandurah did not determine the application, the applicant applied to the State Administrative Tribunal seeking a review of the matter.
The application involved the demolition of the existing structures on the land and the development of a new service station, convenience store and car wash on the site.
While the subject land is zoned "Precinct Development" under the respondent's town planning scheme there is, to date, no approved Precinct Plan for the area. However, in 2005, a Precinct Plan was adopted by the Council as a Local Planning Policy, and the preparation of a formal Precinct Plan under the scheme is in train.
The issue in the review was whether the urban design character of the proposed development met the requirements of the Draft Precinct Plan or, if not, whether discretion should be exercised to allow the application. This required weighing the urban design aspirations of the Council against the very real impact the achievement of those aspirations would have on the effective operation of a use which, it was common ground, was appropriate on the site.
On balance in this case, the Tribunal found that development approval should be granted. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BP Australia Pty Ltd and City Of Mandurah

Details

AGLC: BP Australia Pty Ltd and City Of Mandurah [2008] WASAT 161
Case: [2008] WASAT 161
Decision Date: 21 JULY 2008

CaseChat Overview and Summary

BP Australia Pty Ltd sought review of a decision by the City of Mandurah to deem a development application as refused. The site in question, zoned "Precinct Development", did not have an approved Precinct Plan, but a Draft Halls Head Town Centre Precinct Plan was available. The Tribunal was required to decide whether the Draft Precinct Plan and Draft Developer Contributions Scheme should be considered, the acceptability of the urban design character, and the requirement for built form at the street edge. The Tribunal also had to address the emphasis of the street corner with prominent architecture, avoidance of unsafe areas, activation of the street edge, visibility of the service station forecourt, passive surveillance, and the public domain.

The Tribunal held that the Draft Halls Head Town Centre Precinct Plan was relevant, as it represented the Council's intentions for precinct development. The Draft Developer Contributions Scheme was deemed less relevant but could inform the acceptability of the proposal. The urban design character of the proposal was acceptable, as it aligned with the precinct's objectives. The Tribunal emphasised the importance of built form at the street edge, promoting pedestrian activation and visibility of the service station forecourt. Passive surveillance and the public domain were also considered, with the Tribunal finding that the proposal met these criteria.

In light of the above, the Tribunal allowed the application for review, indicating that the development proposal was acceptable and should be approved by the Council. The Tribunal considered the Draft Halls Head Town Centre Precinct Plan and the Draft Developer Contributions Scheme as relevant documents in its decision-making process. The proposal aligned with the Council's objectives for the precinct, and the Tribunal found that the built form at the street edge, prominent architecture, and pedestrian activation were satisfactory. Additionally, the proposal met the requirements for passive surveillance and the public domain.

Orders

Orders of the court

For the above reasons, the Tribunal makes the following orders: 1. The application for review is allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGE J

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Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

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