BRENCOLDA NOMINEES PTY LTD and CITY OF FREMANTLE
[2010] WASAT 43
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRENCOLDA NOMINEES PTY LTD and CITY OF FREMANTLE [2010] WASAT 43
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 2 OCTOBER 2009 AND 6 NOVEMBER 2009
DELIVERED : 30 MARCH 2010
FILE NO/S: DR 146 of 2009
BETWEEN: BRENCOLDA NOMINEES PTY LTD
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning Change of use Consistency with nonendorsed structure plan Orderly and proper planning Impact of proposal on amenity
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 4.2.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Development application granted with conditions
Category: B
Representation:
Counsel:
Applicant: Mr H Beck (Representative)
Respondent: Mr J Meggitt (Representative)
Solicitors:
Applicant: Beck Advisory Pty Ltd
Respondent: Allerding & Associates
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported)
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Brencolda Nominees Pty Ltd applied to the State Administrative Tribunal for review of the City of Fremantle's decision to refuse planning consent for the change of use of part of its premises at 2 Clontarf Road, Beaconsfield to a storage yard.
The Tribunal found that as the proposed change of use was for a limited time, in line with what had taken place historically on the site, and would not impede the implementation of the Strang Street Structure Plan or prejudice the orderly and proper planning of the area, the application could be approved subject to conditions to protect against any diminishing of the amenity of the area.
Introduction
The proceedings involve an application brought by Brencolda Nominees Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a refusal by the City of Fremantle (City, Council or respondent) on 25 March 2009 and a reconsideration pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) on 15 July 2009, to grant approval for the partial change of use to a storage yard.
Background
The site, the subject of the development application, is No 2 (Lot 72) and (Lot 100) Clontarf Road, Beaconsfield (site). The total area of the site is 12,526 square metres, with 4,170 square metres being located on Lot 72 and 8,349 square metres being located on Lot 100. The part of the site, for which the application is sought, is 4,755 square metres of the total 8,349 square metres of Lot 100.
The total site is rectangular in nature and fronts both Clontarf Road and Naylor Street, with the main entry being on Clontarf Road.
There are two existing commercial buildings occupying the site. One is located on the western side and occupied by an 'office' use, with the other located in the middle of the site and utilised as a 'warehouse'.
Historically, the site has been used for transport, logistics and storage for more than 25 years and, for much of that time, was used by the Metropolitan Transport Trust as a bus depot.
In May 1998, the City granted short term (four months) planning approval for the property to be used as a bonded storage facility, and in July 1998 granted planning approval for the site to be used as a storage facility for customs shipping and forwarding brokers.
In January 2008, the City refused to grant retrospective planning approval for a change of use to a transport depot, but granted planning approval for the retrospective change of use to industrial light (steel manufacturing) subject to the use only being permitted for a limited period of 18 months.
In October 2008, the City granted planning approval for a change of use to a warehouse and office, which are the uses currently being undertaken on the site.
In November 2008, the City received a development application proposing a change of use for part of the site to 'storage yard', which was the application refused by the City on 25 March 2009 and, again, on reconsideration on 15 July 2009, and is the application the subject of this review.
The applicant wishes to utilise the nominated 4,755 square metres of the site for storage in conjunction with the existing approved warehouse and office uses. Approval for the partial storage use is only sought for a limited period of 24 months.
As part of the material before the Tribunal, the applicant furnished a Management Plan which outlined the proposed activities as follows:
Scope of Storage:
It is intended that open storage will occur on site with the storage being principally metal to metal storage to a maximum height to 5 metres from ground level.
This storage will occur north of the northern building line as outlined in red.
Low range storage up to 3 metres will continue to occur to the east of the existing warehouse and to the west of the eastern boundary, to a maximum height of 3 metres (delineated in blue), with the remainder of the site being used for parking of trucks and other equipment.
Buffer Zone & Screening:
Additional landscaping will be installed along the boundary facing Clontarf Road to assist with the screening of the storage area. The landscaping will be reticulated.
The area to the front of the warehouse towards Clontarf Road is intended to be used solely for the parking of cars up to the line of the existing car park. This constitutes approximately 15 metres from the front of the warehouse to the site boundary delineated in blue.
Hours of Operation:
By nature the logistical support business needs to operate in emergency situations unrestricted of time.
Principally the hours of operation is intended between 7.00am to 5.00pm Monday to Friday and 8.00am to 3.00pm on Saturdays.
Vehicles will predominantly be exiting the site from 6am during working days. One forklift fuelled by natural gas is utilised to load the trucks and its operation will be limited to the hours of operation nominated above. The loading of the trucks generally occurs in the afternoon.
The site is not intending to operate on Sundays and Public Holidays except in emergency situations.
Traffic Movements:
It is expected that up to 1216 tonne dual axle trucks will be accessing the site once per day.
Infrequent deliveries to the site during operational hours will occur by similar sized vehicles. All deliveries will occur during the specified hours of operation.
The applicant explained that the main user of the warehouse and adjoining areas is a business contracted to the Water Corporation, Western Power and other utility providers to provide logistical support to their operations, principally through the installation of communication poles and repairs. The proposed use is for storage of metal scaffold, communication poles and associated items, including the overnight storage of vehicles.
The warehouse section of the business operates with a maximum of five staff, with all other staff working off site.
Respondent's evidence
The property is zoned Urban under the Metropolitan Region Scheme and is zoned development under the City of Fremantle Local Planning Scheme No 4 (LPS 4).
The proposed storage yard use would fall under the category of a light industrial use under LPS 4 and the site is located within Development Area 14 Strang Court Area, Beaconsfield.
Clause 4.2.1 of LPS 4 details the objective of the development zone as:
The purpose of the Development Zone is to provide for future residential, industrial, commercial or other uses in accordance with comprehensive structure plan or detailed area plan prepared in accordance with the provisions of the Scheme.
Development applications received prior to adoption of a structure plan are to be assessed via the Mixed Use provisions of the Scheme.
The Strang Street Structure Plan (Structure Plan) was adopted by Council on 7 February 2005. The Western Australian Planning Commission (WAPC) advised the City of its willingness to endorse the structure plan, subject to a number of modifications.
As to the status of the Structure Plan, Council officers, in their report to Council in March 2009, in commenting on the application, stated:
At the date of writing this report, Officers are reviewing the feasibility of modifying the plan to address the WAPC requirements, which involves an investigation of a possible Costs Contribution Scheme for infrastructure up grades [sic]. Consequently the Strang Street Structure Plan does not currently have statutory weight. Accordingly the Strang Street Area remains a Development Zone under LPS 4.
Clause 6.2.4.1 [of LPS 4] states:
In the absence of a structure plan or detailed area plan, Council may determine a subdivision or development application in accordance with the interim controls listed in Schedule 11 for the particular Development Area.
Therefore the City has assessed the application against the 'Mixed Use' provisions of LPS4 as per Schedule 11 prescribes.
Mr John Meggitt, a town planner who gave evidence on behalf of the respondent, in commenting on the Structure Plan, stated:
It is considered that the document is a 'seriously entertained' planning proposal which should be given weight by the Tribunal.
At [31] of his statement, Mr Meggitt stated:
The Strang Street Structure Plan has been adopted by Council and provides for a wide range of uses including residential, commercial and industrial uses. Areas have been allocated within the plan for the operation of these uses. The site for the proposed development is allocated under the structure plan for residential and office uses. It is not considered that the proposed light industrial use is consistent with the purpose of the Development zone and the adopted structure plan nor is it a use that would be compatible with the uses proposed for the locality.
The City also called two neighbourhood witnesses, Mr Roderick Reid and Mr Jonathan Richards, both of whom raised amenity issues, referring in particular to high levels of noise which had been emitted from the site in previous years.
At [7] of his witness statement, Mr Richards stated:
We understand that this is a commercial site and its present use seems reasonable. However, the present proposal to use the site for scaffolding brings back noise and hours of operation issues, steel tubes crashing on the ground, steel tubes being placed in steel racks, forklifts constantly sounding and trucks coming in and out at all hours.
The main thrust of the City's evidence was to the effect that the area was changing, and although the Structure Plan is yet to be finally endorsed by the Planning Commission, the area is being planned and is changing in line with the Structure Plan and that approval of the current application could compromise the plans of other owners in the area who wished to develop in line with the Structure Plan.
Applicant's evidence
Mr Hamish Beck, the development manager for the applicant, represented the applicant at the hearing and gave evidence.
Mr Beck stated that the applicant had bought the site to develop it for residential purposes in line with the Strang Street Structure Plan, and if the applicant could commercially develop the site immediately, it would.
At the time of purchase in 2004, the applicant had planned to develop the site within two to three years. However, due to the global financial crisis and the falloff in the economy, it would, in Mr Beck's words, be 'financial suicide to bring on the development immediately'.
Mr Beck explained that the applicant only wished to have the interim storage use for two years, at which time they expect to commence the development of the site. He confirmed that the applicant had already appointed consultants and spent approximately a quarter of a million dollars on working up new plans for the entire site. Effectively, they were waiting for a market to support the development.
As for the intensity of the use on the site, Mr Beck explained that the use that is currently on the site is the intended use, and there will not be any further intensity of that use.
When put to him by Mr Meggitt that the management plan proposed a more intensive use of the site, Mr Beck explained:
The amount of material on the site is not intended to increase but it may not be in the exact isolated area that it currently is.
Consideration
The area where the site is located is undergoing considerable change. This was clear both from the evidence put before the Tribunal and the site inspection held on 6 November 2009, and, like any area undergoing such change, it is happening at different speeds in different areas.
The site has had a long history in transport, logistics and storage over the past 25 years and the applicant seeks to add a small storage component, in conjunction with the existing warehouse and office uses, for a finite period of 2 years, by which time they expect to be ready to proceed with the planned development of the whole site in line with the Structure Plan.
In areas in transition, conflict regularly arises between the uses acceptable in the past and those that will be acceptable in the future. Furthermore, residents who may have endured commercial activity over many years are keen to ensure that it will cease as planned and the promised rejuvenation of the area will happen in an orderly and timely manner.
A long line of cases have dealt with the question of 'seriously entertained planning proposals' and it has been accepted by this Tribunal on many occasions that where planning proposals have proceeded to the stage where they are 'seriously entertained', they may be taken into account and weight given to them depending on the circumstances. Further, if something is regarded as a seriously entertained planning proposal, it is important to avoid making a decision which would render the implementation of that proposal more difficult.
The Tribunal must make a decision based on the planning merits of the application, having regard to the existing planning controls applicable to the land, while at the same time taking into account any such proposal and giving it the weight it deserves. See Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported), Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 and Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117.
Council officers, when considering the matter, were of the opinion that:
The Strang Street Structure Plan does not currently have statutory weight. Accordingly the Strang Street area remains a Development Zone under LPS4.
Mr Meggitt was of the opinion that the Structure Plan was a seriously entertained planning proposal and should be given weight.
In their report to Council, the officers raised the issue and, under the heading 'Use' in the report, stated:
As mentioned previously, in the absence of a structure plan or detailed area plan, Council may determine a subdivision or development application in accordance with the interim controls listed in Schedule 11 for the particular Development Area. Schedule 11 of LPS4 states that for Development Area 14, all Development Applications received prior to adoption of a structure plan shall be assessed via the 'Mixed Use' zone provisions of LPS4. When considering this application Council is required to assess and balance the use's appropriateness to the area against the current and future amenity of the area.
…
Although 'Storage Yard' is not expressly included within the objectives for Mixed Use zones set out above, the likely impacts are considered to be less than industry, wholesaling, retailing and entertainment activities which are included in the Mixed Use objective (i). Additionally, the proposed use for the site is considered to be sympathetic and compatible with the existing land uses (Storage Yard, Showroom, Garden Centre and Offices) associated with adjoining northern, western and eastern properties.
Under the heading 'Structure Plan', the officers stated:
The key principle in determining whether to exercise discretion in respect of this proposal is the extent the development being proposed will prejudice or compromise the eventual implementation of the Structure Plan. Factors to consider in this assessment would therefore include issues such as:
•The long term aspirations of the landowner in terms of participation in the Development Contributions Plan eventually adopted by the Council,
•The degree of permanence of and level of investment being proposed in the development,
•The extent of new buildings or earthworks,
•Any fragmentation of the land.
The long term aspirations of the landowner in terms of participation in a future Development Contributions Plan are not at this stage known. However as this plan has yet to be adopted and implemented, there would be reasonable planning grounds to consider that certain forms of interim development may be acceptable within the Structure Plan area whilst this planning process is proceeding.
The level of investment being proposed as part of this application is considered to be minimal as the applicant merely intends to utilise existing outdoor hardstand space and no additional buildings, earth works or ancillary structures are being proposed. However, the degree of permanence of the proposal is debatable. Although there is no substantial new development or earthworks being proposed, the 'Storage Yard' use if approved could potentially compromise the implementation of the Structure Plan. Council could impose a condition limiting the planning approval to a reduced period of time if it were satisfied this would help protect implementation of the Structure Plan at a later period.
In respect of the Structure Plan, it is noted that it was first adopted by Council over five years ago but, as yet, has not been endorsed by the WAPC, and one must question how much work has been done on the Structure Plan in the last five years, despite not insignificant work being necessary.
The area over which the Structure Plan is proposed is clearly in transition, but no satisfactory evidence was put before the Tribunal as to Council's plans to finalise the Structure Plan and have it endorsed by the WAPC.
In the circumstances, some questions must arise as to what weight a decisionmaker should give it.
However, it is clear that the development of the area has proceeded, based on the proposed Structure Plan and, indeed, the applicant confirmed it was their intention to develop the site in line with that Structure Plan.
An important aspect of the current application is that it is for a limited period of time and, although not adopted by Council, this mechanism was clearly recognised by Council officers as being available to protect the implementation of the Structure Plan, if necessary, when they stated:
Council could impose a condition limiting the planning approval to a reduced period of time if it were satisfied this would help protect implementation of the Structure Plan at a later period.
Mr Meggitt, in his evidence, was also happy with the concept of an interim use when he stated:
I mean, essentially we're not saying there perhaps shouldn't be an interim use.
And later:
So it may well be that there is an interim use that is acceptable.
Although he was of the view that the interim use proposed was not acceptable, particularly on the basis of amenity issues such as noise
As earlier stated, the Tribunal was fortunate to have the benefit of a site visit on 6 November 2009, which put into perspective the evidence as to the current use of the premises and the current state of transition of the surrounding area.
Tribunal's findings
The current uses of office and warehouse on the site are clearly going to continue until such time as the applicant develops the site. Given that use, together with the historical use of the site and the uncertainty as to the finalisation of the Structure Plan, the Tribunal is of the view that with the measures outlined in the management plan and the short term (24 month) nature of the consent applied for, approval of the current application, subject to specific conditions, will not, in the Tribunal's view, impede the implementation of the Structure Plan or impair its objectives, but will allow the owner to continue to use the site through the period of transition on an interim basis in more or less the same way as it has been used historically, noting that the City has approved storage activities on this site in the past.
Mr Beck was clear that the intensity of use currently occurring on the site would not increase and that the management plan had been prepared to clearly clarify the scope of storage, the buffer zone and screening, hours of operation and traffic movements.
The Tribunal is therefore satisfied that the limited nature of the approval sought, together with the measures contained in the management plan, can adequately manage and ameliorate any amenity concerns and approval of the application for a limited 24 month period, subject to conditions, will not prejudice the orderly and proper planning of the locality, compromise the plans of other owners or unnecessarily diminish the amenity.
Conditions
Prior to the hearing in this matter, the respondent had, as ordered, filed suggested draft without prejudice conditions to which the applicant had responded.
There were five conditions in all, four of which the applicant agreed with and one (4) in respect of which the applicant suggested an amendment.
As conditions 1, 2, 3 and 5 were uncontested, they will be imposed in the form suggested by the respondent.
In respect of condition 4, the respondent suggested the following:
Prior to the occupation, a detailed landscaping plan is to be submitted to and approved by the Chief Executive Officer, City of Fremantle. The plan shall specify details of the proposed vegetation and features.
The amended condition 4 suggested by the applicant, read as follows:
The applicant to provide the City of Fremantle plans specifying the details of the proposed vegetation within (30) days of the approval and to complete the said work within sixty (60) days of receipt of confirmation from the City of Fremantle if the plans are acceptable.
In essence, there is no real disagreement as to the content of condition (4). The applicant is happy to provide the necessary plans and have them approved, but seeks more specific time limits in respect of the condition.
The Tribunal can see merit in that suggestion and will impose a condition largely in line with the respondent's condition, but adopting the time line suggested by the applicant.
Condition 4 will therefore read as follows:
Prior to undertaking the approved use, and within 30 days of this approval, the applicant is to submit a detailed landscaping plan to the Chief Executive Officer, City of Fremantle for approval. The plan shall specify details of the proposed vegetation and features and the applicant is to complete the approved landscaping works within 60 days of receipt of confirmation from the City of Fremantle that the plans are approved.
Order
1.The application for review is upheld and the refusal of the City of Fremantle, dated 25 March 2009, and its reconsideration, dated 15 July 2009, is set aside.
2.Development approval is granted for the partial change of use to a storage yard at No 2 (Lot 72) and (Lot 100) Clontarf Road, Beaconsfield for a limited period of 24 months from the date of this approval, subject to the following conditions:
1)The use hereby permitted shall take place in accordance with the approved plans and the 'Site Management Plan' dated 15 June 2009.
2)The 'Storage Yard' use hereby approved in accordance with the approved plans dated 15 June 2009 shall cease within 24 months of the date of this approval.
3)The 'Storage Yard' hereby permitted shall have hours of operation that do not exceed the following trading hours: 7 am to 5 pm Monday to Friday and 8 am to 3 pm Saturday.
4)Prior to undertaking the approved use, and within 30 days of this approval, the applicant is to submit a detailed landscaping plan to the Chief Executive Officer, City of Fremantle for approval. The plan shall specify details of the proposed vegetation and features and the applicant is to complete the approved landscaping works within 60 days of receipt of confirmation from the City of Fremantle that the plans are approved.
5)All landscaping areas are to be maintained on an ongoing basis to the satisfaction of the Chief Executive Officer, City of Fremantle.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER
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