Broadview Enterprises and City Of Stirling - [2012] WASAT 199

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BROADVIEW ENTERPRISES and CITY OF STIRLING [2012] WASAT 199

MEMBER: MR P McNAB (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 28 SEPTEMBER 2012

FILE NO/S: DR 368 of 2011

BETWEEN: BROADVIEW ENTERPRISES
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development application Change of use Shop use category Franchise sports gear store Showrooms and shops Neither showrooms nor shops contemplated or preferred uses in precinct Past approvals of retail franchises by local government in precinct nevertheless permitted showrooms Showroom uses approved with incidental retail use Generous characterisation by local government of incidental use Whether shop use permissible in any event Precedent and binding effect of previous Tribunal's decision on shop use category Previous decisions which indicated that shop use was not possible under City of Stirling Town Planning Scheme No 38 did not prevent proposed development and change of use City of Stirling Town Planning Scheme No 38 contemplated mixed use development Proposed development and change of use not objectionable Review allowed Words and phrases: 'shop'

Legislation:

City of Melville Community Planning Scheme No 5, Sch 1
City of Stirling Town Planning Scheme No 38, cl 2.7, cl 2.8, cl 4.5.1, cl 5.4, cl 5.4.5, cl 5.13, Pt 5, Sch 1, Table 1
Planning and Development Act 2005 (WA), s 252(1)

Result:

Review allowed
Conditional approval given to development and change of use

Summary of Tribunal's decision:

Broadview Enterprises proposed a change of land use category to enable a 'Rebel Sports' store to operate a significant retail shop component on land in Innaloo, on land otherwise designated for showroom use.
Notwithstanding that neither shops nor showrooms were contemplated land uses intended for this precinct of Innaloo, the City of Stirling had, over the years, approved similar franchise operations in the precinct. These were showroom uses with socalled 'incidental' retail (or shop) use.
Here, however, the City of Stirling refused to approve a change of use.
The Tribunal raised an initial problem of whether a shop use could be approved at all. This was because previous decisions of the former Town Planning Appeal Tribunal, decided on an identically worded definition in another town planning scheme, suggested that a shop use could not be approved in such circumstances.
The Tribunal reviewed those earlier decisions and concluded that they were erroneous and ought not to be followed. This was because those earlier decisions appeared to pay insufficient attention to matters of purpose and context in the interpretation of the definition of 'shop' in a town planning scheme. Thus, planning approval was open to be given in an appropriate case.
Here, the Tribunal approved the proposed development, drawing attention to the past approvals by the City of Stirling and to the 'generous' interpretation of incidental retail use applied by the City of Stirling. In the Tribunal's view, an overarching objective of the City of Stirling Town Planning Scheme No 38 was some level of mixed use. That objective had been practically achieved by the City of Stirling's own previous planning decisions. In such circumstances, the proposed development could not be seen as objectionable.
The review was therefore allowed and conditional approval was given to the proposed development.

Category: A

Representation:

Counsel:

Applicant: Mr P Cann (Acting as Agent)
Respondent: Mr C Leigh (Acting as Agent)

Solicitors:

Applicant: Peter Cann Development Consulting
Respondent: City of Stirling

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

Bakker and City of Nedlands [2005] WASAT 106
Chiefari v Brisbane City Council [2005] QPELR 500
Galloway and Associates and City of Melville [2007] WASAT 238; (2007) 56 SR WA 253
Landcorp and City of Stirling [2011] WASAT 202
Myaree City Pty Ltd and City of Melville [2004] WATPAT 50
Randall and Town of Vincent [2005] WASAT 129
Rebel Sport Ltd and City of Melville [2004] WATPAT 211
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
Topping and City of Swan [2009] WASAT 215
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Broadview Enterprises (applicant) made an application to the City of Stirling (respondent or City) in June 2010 for a partial change of use of certain land, described as 'Tenancy 8', No 401 (Lot 801) Scarborough Beach Road, Innaloo (premises).
The proposed change of use category was from a showroom use to a shop use for the purposes of occupation by a 'Rebel Sports' franchise outlet.
The development application was advertised for public comment in accordance with cl 2.7 of the City of Stirling Town Planning Scheme No 38 (TPS 38 or Scheme). At the conclusion of the 21 days public consultation period, two submissions were received. These submissions included one letter of nonobjection and one letter of objection, to which a petition containing 87 signatures was attached.
The application was then refused by the respondent at its meeting of 27 September 2011 for the following reason:
The proposed use is neither a Preferred nor Contemplated Use under Town Planning Scheme No 38.
On 24 October 2011, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

The subject land and its surrounds

The premises are located within the Nookenburra Tavern and Showroom complex situated on the corner of Liege Street and Scarborough Beach Road (subject land). The complex is currently comprised of eight showrooms, a tavern and bottle shop.
The premises are situated on the first floor of the complex and are approximately 1,090 square metres in area.

Agreed facts

For the purposes of the Tribunal proceeding to a determination of the matter on the documents, certain facts were agreed to by the parties. We have edited these agreed statements of facts into the following narrative.
The original development approval for four showrooms (11,130 square metres), a bottleshop, an associated drivethrough and a tavern was issued on 12 November 2005. An extract from the relevant officer's report presented to Council back then was as follows:
It has been argued that the name of the Precinct 'Mixed Use/Service Commercial' would seem to imply support for showrooms, although not listed as preferred or contemplated uses within the Precinct. It is considered that the showroom uses in their current location are acceptable uses… The showroom use essentially represents an extension of the showroom developments occurring down Scarborough Beach Road to the east and are unlikely to undermine development of similar uses in other 'preferred' locations in the Scheme. There is some concern that the development does not align with the 'vision' of the Scheme for this precinct to support and contribute to the function and cohesion of the abutting Entertainment and Commercial precincts[;] however, on balance, and taking into account the different peak operating times of the showroom development and tavern, it is considered that this aspect is acceptable from a planning viewpoint.
Subsequent to the 2005 approval, an amended proposal, which involved an increase in the number of showrooms to eight with a total floor area of 16,588 square metres, an associated reduction in the floor area comprising the tavern, and the addition of a corner office building, was considered and approved by Council on 17 April 2007. An extract from the relevant officer's report presented to Council was as follows:
The original approval to allow showrooms on this site was issued provided that the site still contained some form of entertainment uses in an appropriately designed building. The current proposal whilst maintaining the entertainment uses has seen a reduction in the floor space dedicated to the tavern related uses.
It is considered that the additional showroom floor space may have a further detrimental impact on the amenity of the area for the following reasons:
•Showrooms are a car based land use that [is] not compatible with a town centre environment;
•Showrooms do not promote alternative forms of transport;
•Showrooms are generally designed in a manner that restricts and inhibits pedestrian/cycling movements as required by clause 5.13.4 h) of TPS 38;
•[t]he built form of showrooms (setback [sic] from the street with parking in the front) are not compatible with a town centre environment and do not comply with clause 5.13.4 c) of TPS 38; and
•[t]he design of a showroom building is not in keeping with a higher architectural form that is required in a town centre and by clause 4.6 of TPS 38.
Notwithstanding the above the City has previously approved showrooms over approximately 50% of the site (eastern end). The proposal to now cover nearly the entire site (ground level) with showrooms should only be supported on the basis of a substantial design benefit to the Stirling City Centre and compliance with various clauses of TPS 38 relating to design and location of buildings and better outcomes for pedestrians and cyclists.
The new office component of the development is also a use that is neither contemplated nor preferred. An office use on this site is considered to be an appropriate use given that the built form is more in keeping with a town centre environment and this use also encourages use of alternative transport modes.
Therefore it is recommended that both the showroom use and the office use be supported in this instance as the City has achieved a considerable improvement in the design outcome of buildings and [in] gaining a landmark building on the corner of Scarborough Beach Road and Liege Street.
Notwithstanding the existence of a legal agreement requiring the corner office building to be completed within 12 months of the completion of the showroom and tavern development, the corner office building remains unconstructed.
The respondent has also previously approved 'incidental' shop uses in other tenancies on the subject land, as follows:
•A development application was approved by Council on 2 December 2006 for 'Use of Showroom Premises' by a 'Spotlight' franchise, which comprised an incidental shop component of 20% gross floor area of the subject tenancy.
•A development application was approved by Council on 16 February 2007 for 'Use of Showroom 3' by an 'Anaconda' franchise, which comprised an incidental shop component of 6.1% of the gross floor area of the subject tenancy.
•A development application was approved by Council on 22 December 2009 for 'Portion of Showroom (Tenancy 4) Premises to be Utilised as an Incidental Shop' (a 'Toys R Us/Babies R Us' stores franchise), which comprised an incidental shop component of 3.8% of the gross floor area of the subject tenancy.
Certain other agreed facts will be referred to below, as may be convenient.

Proposal before the Tribunal

As has been indicated above, the proposed development involves the use of the premises for a 'Rebel Sports' outlet. It is envisaged that approximately 37% of the floor area will be devoted to storage, administration and checkouts, with 32% allocated to sporting apparel and sporting footwear and the remaining 31% allocated to bulky sports goods.

Planning framework

The subject land is zoned 'City Centre' under TPS 38 and is located in Precinct 9 Mixed Use/Service Commercial Nookenburra Precinct (Precinct 9).
The two land use classes relevant to these proceedings are 'Shop' and 'Showroom'. Importantly, neither 'Shop' nor 'Showroom' uses are, or have ever been, 'Preferred Use[s]' or 'Contemplated Use[s]' in Precinct 9 (see cl 5.13.2 and cl 5.13.3 of TPS 38).
'Shop' and 'Showroom' are respectively defined in Sch 1 of TPS 38 ('Interpretations') as follows:
'Shop' means any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.
'Showroom' means a building wherein goods are displayed and may be offered for sale by wholesale and/or retail, excluding the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines and newspapers, books or paper products, medical or pharmaceutical products, china, glassware or domestic hardware, or items of personal adornment.
It is convenient to notice at this point that the definition of 'Shop' commences with the collocation 'means any building'. Whether these words offer any restraint on what would otherwise be a 'Shop' is a matter that we will return to in a moment.
Clause 5.4.5 of TPS 38 provides that where a use is neither a 'Preferred Use' nor a 'Contemplated Use' in a precinct, then the Council, in dealing with the matter, may either:
a)consider the application only after appropriate advertising for public submissions and notification of affected landowners in accordance with cl 2.7 of TSP 38 (see below); or
b)approve the application after due consideration of the matters referred to in cl 2.8 of TSP 38 (see below) and any relevant submission, subject to any conditions it considers appropriate; or
c)refuse the application.
Clause 2.7 of TSP 38 provides that:
In considering a development application the Council may consult with any statutory, public or planning authority or affected landowner as determined by Council and, where the proposed use is not a Preferred Use or a Contemplated Use as described in Clause 5.4, shall notify affected landowners as determined by Council of the development proposed and invite submissions on the proposal. All submissions received from affected landowners as determined by Council within a period of 21 days from the date of consultation or notification shall be taken into consideration by Council in determining a development application.
According to the respondent, cl 2.7 of TSP 38 has been complied with and the applicant does not take any issue with this assertion.
Clause 2.8 of TPS 38 requires that in the determination of any application, the Council is to have regard to the following:
a)any matter which it is required by the Scheme to consider;
b)any submission received as a result of a referral or notification of a development application pursuant to Clause 2.7 [see above];
c)any relevant Policy made pursuant to this Scheme;
d)the requirements of orderly and proper planning;
e)the preservation of the amenity of the area; and
f)the provisions of Clause 4.5.1 [see immediately below].
Clause 4.5.1 of TPS 38 requires that in the determination of an application on land within a precinct where residential development is not a preferred use (such as is the position here), Council is to have regard to the requirements of Pt 5 of the Scheme ('Zoning and Provisions for Precincts') in respect of the relevant precinct, and to any relevant policy. Council may also have regard to, and impose conditions in respect of, any of the matters set out in cl 4.5.1a) cl 4.5.1s) of TPS 38. The only specific matters from this list that might be relevant to this application are as follows:
•the intensity and nature of the proposed use cl 4.5.1a);
•whether parking for vehicles is adequate cl 4.5.1m); and
•compliance with the objects of the Scheme and the Stirling Regional Centre Structure Plan cl 4.5.1r).
Clause 5.13 of TPS 38 (found within Pt 5 of the Scheme) contains specific provisions relating to Precinct 9. The only statement contained in the 'Statement of Intent' (cl 5.13.1 of TPS 3) that has relevance to this application is as follows:
Development shall have regard to the close proximity of the adjoining retirement centre and be planned so as to minimise the impact of development on the residents.
Clause 5.13.4 of TPS 38 sets out the 'Development Criteria' applicable within Precinct 9. Clause 5.13.5g)i) is the only development criteria applicable to this application; that is, 'the number of car parking spaces will be as specified in Table 1 of the Scheme'. The agreed facts state that 'the car parking generated by the subject application … will not increase the onsite shortfall previously accepted by Council and onsite parking is therefore considered adequate'. As such, this aspect of the development is not a matter of dispute between the parties.

Issues

The parties identified the following issues for determination in relation to these proceedings:

Whether planning approval for the proposed Partial Change of Use from Showroom to Shop, at No. 401 (Lot 801) Scarborough Beach Road, Innaloo … should be granted if, as the City contends, the development would be inconsistent with the provisions of [TPS 38], as follows:
1.1That the proposed partial change of use to Shop is neither a Preferred nor Contemplated use under [TPS 38].
1.2That the proposed partial change of use to Shop is inconsistent with the Statement of Intent for Precinct 9 as outlined in clause 5.13.1 of [TPS 38].
1.3That the proposed partial change of use to Shop is inconsistent with the existing approved land uses on the subject site.
1.4That, by virtue of points 1.1 1.3 as outlined above, the proposed land use should be located in other Precincts (specifically, Precincts 1 & 2), and, in that by locating within Precinct 9, it detracts from the integrity of these other precincts as outlined in their respective Statements of Intent.

Before dealing with these arguments, it is necessary to resolve a preliminary matter.

The problem of use as a 'Shop'

The Tribunal brought to the attention of the parties the existence of two, apparently directly relevant, decisions of the former Town Planning Appeal Tribunal (TPAT) dealing with the use class 'Shop'. These decisions were: Myaree City Pty Ltd and City of Melville [2004] WATPAT 50 (Myaree) and Rebel Sport Ltd and City of Melville [2004] WATPAT 211 (Rebel Sport Ltd).
Both the City of Melville Community Planning Scheme No 5 (CPS 5) and TPS 38 contain the same definition for the use class 'Shop'. If the reasoning in these cases were to be applied here, then it would seem that the partial change of the use of the premises could not be classified as a 'Shop' under TPS 38.
As this issue had not been addressed by either party in their submissions, the Tribunal invited written submissions from the parties on the point.

The City of Melville 'Shop' cases

Myaree was a case about a development application for a supermarket, showroom, certain retail uses, a fuel outlet and a civic building to built on land located within the 'Mixed Business Precinct' under CPS 5. The supermarket, showroom and retail uses, with an internal pedestrian mall and with undercroft car parking, were all contained within a two level building. In determining the application, the City of Melville classified the supermarket, fuel outlet and retail uses as 'Shop' uses as that term was defined in Sch 1 of CPS 5. As mentioned, the definition of 'Shop' commences with the same collocation of words used under TPS 38, namely, 'means any building'.
The appellant there argued that the words used in Sch 1 of CPS 5 to define land uses examples of which included 'any land or buildings' in respect of both 'Takeaway food outlets' and 'Motor vehicle wrecking' uses; 'building or part of a building' in respect of 'Showroom', 'Lunch bar' and 'Office uses'; 'premises' in respect of 'Medical centre' use; and 'any building' for 'Shop' use were each 'deliberate' (and therefore specifically different) uses by the draftsperson of CPS 5 so as to identify precise structures referenced to different types of land use.

The appellant therefore submitted that, given the definition of 'Shop' as referenced to 'any building', it was not possible to have 'a shop within a building which contains other uses which are not shops and [to] still [be able to] call it a shop'.
The respondent argued that the term 'building' in the definition does not need to be expressed in terms of a whole or part of a building; that it was used in a generic way; and that, under building and planning legislation, it had always been used in a very general way. Thus, it was submitted that, in the context of the 'Shop' use definition, it was capable of being, and should be, read and understood as referring to a building or part of a building. The respondent further argued that 'town planning schemes are practical documents prepared for practical people, and that a certain amount of flexibility must be applied in the interpretation of the document'.
TPAT, although acknowledging a lack of overall cohesion and internal consistency in the wording of the definitions, nevertheless determined that the definition of 'Shop' required that it be a building. Myaree, at [73] [75], concluded as follows:
The definition of 'shop' contained in CPS 5 appears broadly to be based upon a definition of 'shop' that appears in the 1967 Town Planning Regulations. The definition that appears in the Model Scheme Text to which Counsel for the Respondent made reference is significantly different in that it defines 'shop' as follows:
'["]Shop["] means premises used to sell goods by retail, hire goods, or provide services of a personal nature (including a hair dresser or beauty therapist) but does not include a showroom or fast food outlet.'
It appears to us that the express use in the model scheme text of the word 'premises' is likely to achieve a different outcome than the use in this case of the definition of 'shop' incorporating the words 'any building'. It appears to us that the difference is compelling. As a matter of interpretation it demands an outcome different than would have [been] obtained had the definition of 'shop' been that which appears in the model scheme text.
We therefore accept the submissions of Counsel for the Appellant and conclude that the building proposed incorporating a showroom, retail outlets and a supermarket does not fit the definition of 'shop' and as a result is properly categorised as [a] 'use not listed'.
Rebel Sport Ltd was a case where retrospective approval had been sought by the respondent to use a portion of an existing showroom occupied by 'Rebel Sports' as a 'Shop'. Approval had been granted by the respondent subject to three special conditions. The review (appeal) was instituted in relation to condition 3 of that approval. Reference was made to the Myaree decision and, at [23], the President of TPAT said:
The definition of 'Shop' in CPS 5 precludes the determination as a matter of law that what was involved with these uses was a shop'.
The Tribunal therefore concluded that 'there was no power to the Respondent to have approved the application before it'.
In response to the Tribunal's invitation here to the parties to make written submissions in respect of this issue, both the applicant and the respondent agreed that the use could be dealt with as a 'Use not listed' and that this classification would not affect their previously stated positions.
The decisions in Myaree and Rebel Sport Ltd are not binding on the Tribunal as presently constituted. However, as the Tribunal noted in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346, at [31]:
For reasons of comity and consistency, a member of SAT should … generally follow a decision of another member of the Tribunal … that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499.
This position applies equally to the decisions of TPAT in relation to this Tribunal: Bakker and City of Nedlands [2005] WASAT 106, at [25] [27].
With respect to TPAT (especially as both decisions expressed the views of the then President of TPAT), this Tribunal, as presently constituted, is of the opinion that Myaree and Rebel Sport Ltd are decisions manifesting sufficient error such that they ought not to be followed on this point. We come to this conclusion for the following reasons.
It is a mainstay of statutory interpretation that the fundamental objective is to ascertain the legislative intention by reference to the language of the instrument read as a whole: see the discussion of the modern Australian interpretative authorities in Randall and Town of Vincent [2005] WASAT 129 (Randall), at [75] [77]. A purposive approach will ordinarily need to be taken to the issue of 'whether development approval [is] required in relation to a particular activity' and to the determination of 'whether a particular activity constitutes a "use" of land': Randall at [90] [93].
Furthermore, the Tribunal, in a number of recent decisions, has recognised the fact that town planning schemes 'are largely the work of town planners, not parliamentary counsel [and that] they should be read as a whole and applied in a practical and commonsense, and not an overly technical way': Chiefari v Brisbane City Council [2005] QPELR 500, at [502], per Wilson SC DCJ (as he then was); cited with approval by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238; (2007) 56 SR WA 253; Topping and City of Swan [2009] WASAT 215; and Landcorp and City of Stirling [2011] WASAT 202.
Recently, Edelman J made the following related observations in Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259, at [37]:
In written submissions, counsel for the WAPC relied upon the remark of McLure JA[,] in the leading judgment in Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [25], that 'planning schemes are not drawn with the precision of Acts of Parliament and should be construed broadly rather than pedantically and with a sensible practical approach'. I do not consider that, by this remark, McLure JA (as the President then was) was suggesting that there are different rules for construction of words in planning schemes from the rules concerning construction of words in statutes. Section 44 of the Interpretation Act explains that '[w]ords and expressions used in subsidiary legislation shall have the same respective meanings as in the written law under which the subsidiary legislation is made'. However, in all instances of construction, words must be placed in their context and circumstances. I understand her Honour to be explaining that in construing words in planning schemes one relevant aspect of context is that these words are not drafted by a Parliamentary draftsperson. That is part of the relevant legal and historical background which is always relevant to the exercise of construction: see Re Shire of Mundaring [24] (McLure JA) citing Burge v Swarbrick [[2007] HCA 17;] (2007) 234 ALR 204 [57]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. The reasonable reader of [the planning scheme there under consideration] must appreciate that the drafting of that document can give rise to a greater likelihood of infelicities in the language used than might occur in an Act of Parliament.
An attempt to apply a nonpurposive or noncontextual construction to the definitions contained in TPS 38 that we are presently concerned with may result in an interpretation that could be regarded as untenable, for the resultant effect might be to isolate specific uses (such as shops, certain offices, laundromats, restaurants and showrooms) into separate buildings, thereby preventing mixed use developments incorporating any of these land uses. It is difficult to accept that this was ever the intent of TPS 38. For example, the Statement of Intent in Precinct 1: Retail Commercial Precinct envisages 'offices or residential components constructed above retail facilities'. A literal interpretation of the definition of 'Shop' (such as appears to have been taken in Myaree) would arguably frustrate the fulfilment of the Statement of Intent. This is quite apart from the impact that such a restrictive reading would have on the actual practices of contemporary town planning.
The Tribunal therefore concludes that on a true interpretation of the Scheme, the proposed partial change of use proposed here can be classified as a 'Shop' under TPS 38. Given this finding, we return to discuss the merits of the planning case.

Is the partial change of use of the premises to 'Shop' inconsistent with the intent of TPS 38?

The respondent contended that the proposed 'Shop' land use was inconsistent with the Statement of Intent and the Preferred and Contemplated uses of Precinct 9, and that approval of the proposed development would conflict with the City's previous decisions to approve incidental 'Shop' uses for other Showroom tenancies on the subject land.
The respondent argued that the approvals previously issued for other tenancies on the subject land have been for 'genuine' 'Showroom' uses where the sale of ancillary shop goods was incidental to the main 'Showroom' use. The respondent asserted that the proposed occupancy by 'Rebel Sports' would not be a genuine 'Showroom' use, as the 'Shop' component was more or less equal to the 'Showroom' component when consideration is made of the respective proportions of retailing floor space.
The respondent also argued that the proposed development would be more appropriately located in Precincts 1 and 2 of TPS 38, as both 'Shop' and 'Showroom' are uses listed as 'Preferred Uses' in these precincts. The respondent said that, if approved, the proposed development would detract from the Statement of Intent of Precincts 1 and 2, and would compromise the intent and implementation of TPS 38.
With respect, the Tribunal does not accept these contentions and arguments.
Clause 5.4 of TPS 38 provides that '[f]or the purpose of promoting the objectives of the Scheme, and subject to any provision of this Part to the contrary, the Council in dealing with any development application shall encourage a mixture of land uses throughout the Scheme Area'. These objectives are, from a planning point of view, as extensive as they are sensible.
Speaking candidly, as regards the precinct area that we are dealing with, these objectives seem to have been achieved, in part, by the City taking a wholly generous view of what it regards as 'incidental' retailing to approved 'Showroom' uses. We mention again that, in any case, 'Showrooms' are neither a 'Preferred' nor 'Contemplated' use of land in the precinct. Yet, development has been expressly and consistently approved in such terms.
Based upon the extent and pattern of previous approvals by the City for largely similar franchise operations to what is proposed here ('Spotlight', 'Anaconda' and 'Toys R Us'), the current development and change of use seems to us unobjectionable. Whatever vision the City had in mind for the precinct, particularly as regards its express 'Preferred' and 'Contemplated' uses, it must be, we think, now viewed in the light of the actual approvals given and how, from the point of neighbours, developers and users of the precinct, such development has evolved.

Conclusion

In our view, there is nothing in the Scheme that would prohibit the proposed development, and an approval would be wholly consistent with the previous approvals given by the City. Accordingly, conditional planning approval should be given to the proposed development and change of use.

Conditions

As required by a direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considered that approval of the application, subject to conditions, was appropriate. The City submitted two conditions, which read as follows:
1.The use of the showrooms being limited to those 'shop' items and areas as specified in the application, with the area dedicated to the sale of those 'shop' items limited to 32% of the gross floor area of the subject tenancy.
2.The approval relating only to that tenant and not being transferred to a different tenant/company without Council approval.
The applicant submitted that condition 1 should be modified to delete the words 'and areas' preceding the words 'as specified in the application', to enable greater flexibility for the tenant to change floor stock. The Tribunal is satisfied that the deletion of the words 'and areas' will not undermine the fundamental premise of the condition and will provide the necessary operational flexibility required by the applicant and, as such, the condition should be amended accordingly.
In regards to condition 2, the applicant submitted that the word 'tenant' in the first line of the condition should be followed by the word 'company', as described later in the condition. The applicant sought this change to give 'Rebel Sports' the flexibility to either rebrand or otherwise change its name. The Tribunal considers that the word 'company' should be inserted following the word 'tenant' to ensure consistency in terminology and so that there can be no doubt about the intent of the condition.

Orders

For these reasons, the review will be allowed and conditional approval will be granted to the proposed development. Our orders are:
1.The review is allowed.
2.The decision under review is set aside and in lieu thereof planning approval is granted for the proposed development and change of use, subject to the following conditions:
a.The use of the showroom being limited to those shop items as specified in the application, with the area dedicated to the sale of those shop items limited to 32% of the gross floor area of the subject tenancy.
b.The approval relating only to that tenant/company and not being transferred to a different tenant/company without council approval.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER