Busen Pty Ltd and City Of Subiaco
[2007] WASAT 49
•22 FEBRUARY 2007
BUSEN PTY LTD and CITY OF SUBIACO [2007] WASAT 49
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 49 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:275/2006 | 7 AND 8 FEBRUARY 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 21/02/07 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed and conditional development approval granted | ||
| B | |||
| PDF Version |
| Parties: | BUSEN PTY LTD CITY OF SUBIACO |
Catchwords: | Town planning Development application Tavern Subiaco Town Centre Whether proposed location acceptable having regard to strategic planning considerations Intention of planning policy that generally taverns are to be more evenly spread geographically throughout commercial districts and provision that City will generally not support new tavern within close proximity of existing hotel, tavern or nightclub Proposed tavern within close proximity of hotel and two nightclubs Proposed tavern significantly smaller than hotel and nightclubs Whether flexibility should be exercised in application of policy in the circumstances Likely amenity impact Anti-social behaviour Motor vehicle and pedestrian injuries "Bunching" of licensed premises Objective characteristics of proposed tavern Whether time limited consent warranted |
Legislation: | City of Subiaco Liquor Licensing Policy, cl 3.0, cl 3.1, cl 4.0, cl 4.1 City of Subiaco Town Planning Scheme No 4, cl 7(a), cl 27(4)(b), cl 27(4)(d), cl 27(4)(f), cl 27(4)(g), cl 27A(2)(a), cl 53, cl 53(b), cl 53(e), cl 53(g), cl 53(h), cl 53(i), cl 78 Health (Public Buildings) Regulations 1992 (WA) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Planning Policy No 4.2 - Metropolitan Centres Policy Statement for the Perth Metropolitan Region, cl 4.2.3, Appendix 1 Town Planning Regulations 1967 (WA), reg 17(2) |
Case References: | City of Subiaco v Busen Pty Ltd [2005] WASC 230 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Fryer and City of Subiaco [2006] WASAT 199 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Zhang v Canterbury City Council (2001) 115 LGERA 373 |
Orders | On the application determined by Senior Member David Parry and Senior Sessional Member Patric De Villiers on 22 February 2007, it is ordered that:,1. The application for review is allowed.,2. The decision of the respondent to refuse development approval for the use of 71 - 75 Rokeby Road, Subiaco as a tavern is set aside and a decision is substituted granting development approval in accordance with the provisions of the City of Subiaco Town Planning Scheme No 4 and the Metropolitan Region Scheme for the use subject to the following conditions:,(1) The development shall be carried out in accordance with the plan entitled Proposed Tavern Application drawn by Oldfield Knott Architects Pty Ltd Job No 04013 Drawing No PO1 Rev F dated 18 January 2007.,(2) The maximum number of patrons permitted within the tavern is not to exceed 108 patrons at any time.,(3) Hours of operation are from 8 am to 12 midnight Monday to Wednesday, 8 am to 1 am (next day) Thursday to Saturday, and 10 am to 10 pm Sunday, but with no service of liquor prior to 12 midday on any day.,(4) Hot and cold food must be available to patrons at all times during trading hours. In particular, a regular full menu must be available at all times up until 10.30 pm Monday to Saturday and 10 pm Sunday. From 10.30 pm Monday to Saturday, an extensive snack menu must be made available which, upon request by the City's Building and Health Services, must be approved by it.,(5) No live music is to be played from the premises.,(6) Car parking spaces are to be provided as follows:, (i) Nine of the existing car parking spaces on site for full time use by staff and patrons of the tavern;, (ii) Six car parking spaces for use by staff and patrons of the tavern during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating.,(7) The one car bay allocated to the approved 42 square metre office upstairs is to be made available to the approved tavern at all times when the office is not operating.,(8) The maximum eating and drinking area in the tavern at 71 - 75 Rokeby Road, Subiaco is limited to 92 square metres of which:, (i) a maximum of 68 square metres may be used at any time that the tavern is operating; and, (ii) the 24 square metres located towards the rear of the tavern as marked on the approved plans may only be used at times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating; and, (iii) the 34 square metres located towards the front (east) of the building as marked on the approved plans is to permanently include tables and chairs during trading hours; and, (iv) tables and chairs are to be provided for at least 70 patrons at all times during trading hours, including tables and chairs for at least 30 patrons in the area referred to in (iii) above.,(9) A Management Strategy for the premises is to be approved by the City and implemented to the City's satisfaction prior to the operation of the tavern and thereafter maintained to the City's satisfaction. The Management Strategy is to contain, but is not limited to:, (i) the number of licensed security staff present;, (ii) complementary drinking water;, (iii) complaint and reporting procedures;, (iv) patron control (including staff training);, (v) sale of alcohol;, (vi) queue management;, (vii) access to taxi rank, complementary taxi calling service;, (viii) lighting in and around the site;, (ix) cleaning of the site and the public area around the site;, (x) management of the restricted seating area located towards the rear of the tavern as marked on the approved plans during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are operating; and, (xi) any other relevant matters.,(10) The sale of liquor for consumption off site is not permitted.,(11) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.,(12) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.,(13) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and retained is to be to the satisfaction of the Director Technical Services.,(14) The proposed dry store and washing up area currently being used by the existing Chutney Mary's Indian Restaurant is to be relocated to the satisfaction of the City's Building and Health Services.,(15) Fire hose reels and fire hydrants are required to be installed to service the entire building, to the satisfaction of the City's Director of Development Services. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BUSEN PTY LTD and CITY OF SUBIACO [2007] WASAT 49 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning - Development application - Tavern - Subiaco Town Centre - Whether proposed location acceptable having regard to strategic planning considerations - Intention of planning policy that generally taverns are to be more evenly spread geographically throughout commercial districts and provision that City will generally not support new tavern within close proximity of existing hotel, tavern or nightclub - Proposed tavern within close proximity of hotel and two nightclubs - Proposed tavern significantly smaller than hotel and nightclubs - Whether flexibility should be exercised in application of policy in the circumstances - Likely amenity impact - Anti-social behaviour - Motor
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vehicle and pedestrian injuries - "Bunching" of licensed premises - Objective characteristics of proposed tavern - Whether time limited consent warranted
Legislation:
City of Subiaco Liquor Licensing Policy, cl 3.0, cl 3.1, cl 4.0, cl 4.1
City of Subiaco Town Planning Scheme No 4, cl 7(a), cl 27(4)(b), cl 27(4)(d), cl 27(4)(f), cl 27(4)(g), cl 27A(2)(a), cl 53, cl 53(b), cl 53(e), cl 53(g), cl 53(h), cl 53(i), cl 78
Health (Public Buildings) Regulations 1992 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Planning Policy No 4.2 - Metropolitan Centres Policy Statement for the Perth Metropolitan Region, cl 4.2.3, Appendix 1
Town Planning Regulations 1967 (WA), reg 17(2)
Result:
Application for review allowed and conditional development approval granted
Category: B
Representation:
Counsel:
Applicant : Mr JCW Skinner
Respondent : Mr LA Tsaknis
Solicitors:
Applicant : Jackson McDonald
Respondent : Woodhouse Legal
Case(s) referred to in decision(s):
City of Subiaco v Busen Pty Ltd [2005] WASC 230
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Fryer and City of Subiaco [2006] WASAT 199
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Nicholls and Western Australian Planning Commission [2005] WASAT 40
Zhang v Canterbury City Council (2001) 115 LGERA 373
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Summary of Tribunal's decision
1 Busen Pty Ltd sought review by the Tribunal of the decision of the City of Subiaco to refuse to grant development approval for a tavern with a maximum of 108 patrons close to the intersection of Hay Street and Rokeby Road, Subiaco.
2 The proposed hours of operation of the tavern are 8 am to midnight Monday to Wednesday, 8 am to 1 am (next morning) Thursday to Saturday and 10 am to 10 pm Sunday, although only food and no liquor can be served prior to midday on any day. Agreed conditions of approval would:
• preclude live music;
• preclude the sale of liquor for consumption off site;
• require hot and cold food to be available to patrons at all times;
• require tables and chairs to be provided for at least 70 patrons at all times; and
• require a management strategy, including security and queue management measures, to be approved by the City of Subiaco and implemented.
3 The principal issues for consideration in the review were:
• whether the location is acceptable having regard to strategic planning considerations; and
• whether the proposal is acceptable in relation to the health, safety and general welfare of the community and the amenity, including the social amenity, of the Subiaco Town Centre and neighbouring areas.
4 The Tribunal determined that the development application warranted approval subject to conditions.
5 The proposal is well located and consistent with the overall strategic planning for the Town Centre. Although an intention of the Liquor Licensing Policy is that, generally, licensed premises are to be more evenly spread geographically throughout the commercial districts of the
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- City, whereas the proposed tavern is in close proximity to the Subiaco Hotel, the Regal Theatre Bar and two nightclubs, the Tribunal considered that, in the circumstances of this case, it is appropriate to depart from the strict application of the Policy. In particular, it is appropriate to exercise flexibility in the application of the Policy in this case because the proposed tavern:
• is relatively modest in size, being able to accommodate approximately 22% of the maximum number of patrons at the Subiaco Hotel and approximately 38% and 43% of the maximum number of patrons at the nightclubs;
• has an active frontage during regular retail hours;
• is likely to have an acceptable amenity impact; and
• is consistent with other relevant statutory and strategic planning provisions.
• its location in the heart of the Subiaco Town Centre and at a considerable distance from the closest residential premises;
• its relatively small size;
• the requirement to have food available at all times;
• the requirement to provide chairs and tables for at least 70 out of 108 patrons;
• the preclusion of live music;
• the requirement to implement an approved management strategy; and
• the proposed hours of operation.
Introduction
7 These proceedings involve an application brought by Busen Pty Ltd, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Subiaco (City or
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- Council) to refuse development approval for the use of premises comprising two levels at 71 75 Rokeby Road, Subiaco (site) as a tavern.
8 The site occupies approximately half of what is described by the Council's assessing officer as "a landmark character building on this strategic street corner", namely the south-western corner of the intersection of Hay Street and Rokeby Road. At ground level, the building comprises, to the north of the site, retail premises with frontage to Hay Street and a licensed restaurant known as Chutney Mary's Indian Restaurant with frontage to both Hay Street and Rokeby Road and, to the south of the site, retail premises with frontage to Rokeby Road. The upper level of the building comprises offices. There is a 19 bay car park to the west or rear of the building.
9 On 4 May 2006, the City granted development approval for a change of use of the site from three shops to a restaurant. The restaurant, as approved, comprises:
• a new cool room, kitchen, covered access/passage and patron toilets in the western or rear half of the ground level;
• a food/coffee servery and bar and 92 square metres of dining floor space in the eastern or front part of the ground level adjacent to Rokeby Road; and
• staff toilets, amenities, ancillary offices and storage on the upper level.
10 The restaurant, as approved, has an open presentation to Rokeby Road comprising three glazed shopfront sections incorporating a central glazed door. The physical works for the approved restaurant are currently under construction.
11 The proposed tavern development would utilise the approved restaurant physical works and fit out. The eating and drinking floor area of 92 square metres would enable a maximum of 108 patrons on the site at any one time in accordance with the Health (Public Buildings) Regulations 1992 (WA) (Health Regulations). The proposed hours of operation are 8 am to midnight Monday to Wednesday, 8 am to 1 am (next morning) Thursday to Saturday and 10 am to 10 pm Sunday. However, agreed conditions of development approval would preclude the service of liquor prior to midday on any day and the use of a 24 square metre section in the north-western, rear portion of the tavern when the retail premises and offices in the building are operating. The
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- latter preclusion is to ensure that the car parking available for the tavern in the rear car park is in accordance with the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme). Other agreed conditions of development approval would:
• preclude live music from being played at the site;
• preclude the sale of liquor for consumption off site;
• require hot and cold food to be available to patrons at all times and in particular a regular full menu to be available until 10.30 pm Monday to Saturday (10 pm on Sunday) and an extensive snack menu approved by the City's Building and Health Services to be available after 10.30 pm Monday to Saturday;
• require a 34 square metre area immediately adjacent to Rokeby Road – approximately 57% of the width of the principal part of the floor space available to patrons – to permanently include tables and chairs during trading hours;
• require tables and chairs to be provided for at least 70 patrons during trading hours, including tables and chairs for at least 30 patrons in the front 34 square metre area; and
• require a management strategy, including security and queue management measures, to be approved by the City and implemented.
13 The development application was advertised for two weeks. A total of 22 written submissions were received of which six objected to the proposed development and 14 supported it. A petition with 234 signatures against the development was also received. However, 159 or 68% of the signatories were not residents of Subiaco, 18 or 8% did
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- not identify where they were from, and only 57 or 24% identified themselves as residents of Subiaco.
14 The development application was the subject of a detailed assessment report by the Council's professional staff which recommended the granting of conditional development approval. However, on 25 July 2006, the Council's Planning Committee resolved to reject the recommendation and refuse development approval.
Issues
15 The following two principal issues arise for determination in this review:
1) Whether the location of the proposed development is acceptable having regard to strategic planning considerations.
2) Whether the proposed development is acceptable in relation to the health, safety and general welfare of the community and the amenity, including the social amenity, of the Subiaco Town Centre and neighbouring areas.
16 The Tribunal notes that a previous development application for use of the northern two-thirds of the site and the area of Chutney Mary's Indian Restaurant as a tavern was ultimately refused by the Supreme Court, because the application could not be approved in the exercise of planning discretion in consequence of a lack of sufficient car parking bays so as to comply with TPS 4: see City of Subiaco v Busen Pty Ltd [2005] WASC 230. However, it is common ground in this review that the proposed tavern use does not require any more car parking bays than the approved restaurant use of the site and that, if agreed conditions are imposed on the grant of development approval, the number of car bays available in the car park at the rear of the building satisfies the requirements of the Scheme.
17 The Tribunal will address the issues which arise for determination in this review in turn.
Is the location acceptable?
18 Mr Gregory Rowe, a consultant town planner, gave evidence on behalf of Busen Pty Ltd, and Mr Christopher O'Neill, a consultant town planner, gave evidence on behalf of the City. The planning experts agree that taverns of the nature proposed are appropriate within the Subiaco Town Centre.
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19 Subiaco is identified in cl 4.2.3 of State Planning Policy No 4.2 – Metropolitan Centres Policy Statement for the Perth Metropolitan Region (SPP 4.2) as a regional centre with a significant "main street" component. Appendix 1 of SPP 4.2 identifies a primary function of a regional centre as "entertainment facilities".
20 Consistently with SPP 4.2, the aims and objectives of the Town Centre zone under TPS 4 include "to encourage vibrant and diverse uses … which promote the area as the Town Centre of Subiaco.": cl 53(b). Although another objective of the zone is "to discourage the undue aggregation of entertainment facilities characterised by after-hours operation and by low levels of activity during shopping hours" (cl 53(g)), the planning experts agree that the proposed tavern is not characterised by low levels of activity during normal shopping hours. The proposed development would operate during normal shopping hours and would provide an active frontage during those hours. Furthermore, while the tavern would also operate beyond normal shopping hours, given that the proposed hours of operation during shopping hours are substantial, a regular full hot and cold food menu would be available during shopping hours, and indeed, only food would be available from 8 am until midday on any day, the proposed development is not an entertainment facility "characterised by afterhours operation".
21 The Subiaco Central Development Plan (SCDP) was adopted by the Council in June 2006 "to satisfy statutory planning requirements and provide guidance for development within the inner area of Subiaco at both the strategic level and the 'precinct' planning level": cl 1.1. The SCDP is a planning study approved by the Council and, therefore, a document to which the Tribunal must have regard under cl 27(4)(d) of TPS 4.
22 In relation to the desired future character of the town centre precinct, the SCDP states at page 65 as follows:
"Entertainment uses should be contained to a moderate scale and number to ensure this aspect of the centre's attractiveness does not fundamentally alter. Smaller scale licensed outlets may be one means to enhance the appeal to knowledge workers that are critical to the continued sustainability of the area. This scale of entertainment also reduces potential for conflicts with residents and is of a scale that preserves local amenity and heritage values."
23 The objectives of the town centre precinct in the SCDP include:
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- "• to encourage vibrant and diverse uses, which promote the area as the Town Centre of Subiaco;
• to ensure the development of continuous 'shopfront' development in accordance with Main Street design principles, and to avoid disruption caused by blank or uninteresting buildings; …
• to discourage the undue aggregation of large-scale entertainment facilities, such as taverns and nightclubs, characterised by after-hours operation and by low levels of activity during normal shopping hours; … " (page 66).
24 The identified preferred uses for the town centre precinct in the SCDP include "small bars" (page 66) and specifically in relation to "ground floor of developments fronting … Rokeby Road … - … entertainment (restaurants, small bars + cafes, but excluding large nightclubs) … ".
25 Mr Rowe and Mr O'Neill agree that the proposed tavern is a "small bar". As noted earlier, under the Health Regulations, licensed premises which have a floor area of 92 square metres for patrons can accommodate a maximum of 108 patrons. An agreed condition of development approval for the proposed use would limit the number of patrons to 108 at any given time. As the Council's assessing officer observed, the proposed tavern is "significantly smaller than the existing licensed facilities in the area that include the Subiaco Hotel (370 square metres), Llama Bar (250 square metres), Sapphire Bar (210 square metres), Paddy Maguires (250 square metres), Club Red Sea (287 square metres), Clancy's (currently vacant but has a floor area of 200 square metres), Irish Club (440 square metres) and The Vic (500 square metres)".
26 The proposed development is, therefore, a "smaller scale licensed outlet" and "small bar" which is entirely consistent with the desired future character, objectives and preferred uses for the Subiaco Town Centre stated in the recently adopted SCDP.
27 However, it is Mr O'Neill's evidence and the City's case that the proposed development warrants refusal, because it is inconsistent with provisions of the City's Liquor Licensing Policy (Liquor Policy) and proposed further objectives for the Town Centre zone which are the subject of draft Town Planning Scheme Amendment No 7 (Amendment 7).
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28 The Liquor Policy was adopted by the Council as a planning policy under cl 78 of TPS 4 on 25 October 2005 and is, therefore, a required matter for consideration under cl 27(4)(b) of the Scheme. Clause 3.0 of the Liquor Policy includes the following:
"This Policy incorporates the following intentions with regard to the City's attitude towards applications involving licensed premises
• additional growth in the total number of hotels and taverns within the City will be very modest;
• any approved new hotels and taverns are to be smaller in floor space and have a reduced number of maximum permissible patrons allowed than has previously been the case;
• generally any such facilities are to be more evenly spread geographically throughout the commercial districts of the City;
• more flexible licensed premises that have the capacity to change their character, function and/or clientele during the course of a day or week are preferred;
• greater consideration and care is to be given in new applications for licensed premises to the availability of readily accessible parking, the protection/maintenance of nearby residents' amenity, and harm minimisation." (Emphasis added indicating provision relied on by the City.)
29 Clause 3.1 of the Liquor Policy provides as follows:
"With respect to the town centre the City supports its continued development as an entertainment precinct, however, critical aspects in considering applications for licensed premises are:
• the potential for an excessive concentration of licensed premises (especially larger taverns and hotels) to be located in the town centre, which, when operating together at maximum or near maximum capacity, have the potential to generate undue levels of anti-social behaviour and alcohol-related crime; and
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- • the potential loss of retail services to entertainment use and the need for frontages that remain open during regular retail trading hours.
Specifically, any growth and intensification of licensed premises in the town centre, and in particular the Rokeby Road/Hay Street and Rokeby Road/Roberts Road intersections is to be limited." (Emphasis added indicating provision relied on by the City.)
30 Clause 4.0 of the Liquor Policy identifies characteristics which are to be considered "in assessing relevant applications", including "the proposed scale of the premises" and "impact on street activity".
31 Finally, cl 4.1 of the Liquor Policy contains the following specific assessment criteria:
"• licensed premises – particularly those proposed with a main entry from Rokeby Road or Hay Street – shall have a minimum non-active street frontage, and will endeavour to provide maximum active street front retail or service use in the daytime for the interest and enjoyment of pedestrians;
• off-site parking areas that are proposed to service the premises should not be located such that patrons are required to move through predominantly residential areas when arriving at, or leaving, the premises;
• the City will not generally favour any application for a new Hotel, Tavern, Club or Night Club which proposes a permissible number of patrons in excess of 200;
• the City will generally not support an application for a new Hotel, Tavern, Club or Night Club if it is proposed to be located within close proximity of an existing Hotel, Tavern, Club or Night Club;
• competitive advantage of licensed premises shall be based on location, nature of the venue and the quality of service and entertainment, and not on extended hours of operation;
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- • if the proposal is for an existing venue the history of its operations will be a relevant consideration.
The effect of the assessment is to ensure that the amenity of a locality will not be detrimentally affected by a new licensed premiese [sic] or by a variation in the operation of an existing licensed premise [sic]." (Emphasis added indicating provision relied on by the City.)
32 The City contends that the proposed development should be refused, because it is not consistent with cl 3.0 of the Liquor Policy, in that it will not result in hotels and taverns being more evenly spread geographically throughout the commercial districts of the City, or with cl 4.1, in that it will be located within close proximity of an existing hotel, tavern or club. The Tribunal considers that the site is in close proximity of four licensed premises which fall within this designation, namely, the Subiaco Hotel, which is a traditional, large hotel located across Rokeby Road from the site, the Llama Bar, a nightclub with a non-active frontage located diagonally to the north-east of the site, the Attic Bar in the Regal Theatre, which is located on the north-western corner of the intersection of Hay Street and Rokeby Road, and Club Red Sea, which is a nightclub with a non-active frontage comprising only doors to Rokeby Road a short distance to the south of the site. Although Paddy Maguires is a pub located approximately 180 metres from the site and the ESS Bar (formerly Clancys) is a tavern also located approximately 180 metres from the site, these premises could not be characterised as being in close proximity, because they are not within line of sight and gaining access to them from the site involves walking along two or three streets, and in the case of the ESS Bar, through a private car park.
33 Mr LA Tsaknis, counsel for the City, submits, correctly, that a properly adopted planning policy, such as the Liquor Policy, is a fundamental element in, or a focal point of the decision-making process: Fryer and City of Subiaco [2006] WASAT 199 at [56] citing Zhang v Canterbury City Council (2001) 115 LGERA 373 at [75]. However, "the existence of such a 'policy' is not intended to replace the discretion of the [decision-maker] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it", although "the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application": Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24] per Barker J.
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34 Mr JCW Skinner, counsel for Busen Pty Ltd, notes that neither provision in cl 3.0 and cl 4.1 of the Liquor Policy which is relied on by the City is expressed in absolute terms – both are qualified by the word "generally". The adverb "generally" relevantly means "usually; commonly; ordinarily": The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 590. The word "generally", therefore, implies flexibility in particular circumstances.
35 The "critical aspects in considering applications for licensed premises" set out in cl 3.1 of the Liquor Policy and the general and specific assessment criteria set out in cl 4.0 and cl 4.1, respectively, provide an indication as to how the flexibility contemplated by the word "generally" is to be exercised. The primary planning concern in relation to "concentration" of licensed premises appears to be to preclude excessive concentration of particularly larger taverns and hotels in close proximity to one another which, when operating together at maximum or near maximum capacity, have the potential to generate undue amenity impacts and to detrimentally affect street activity and character by presenting non-active frontages during regular retail trading hours. Specifically in relation to the Hay Street/Rokeby Road intersection, the Liquor Policy does not seek to preclude any growth and intensification of licensed premises, but rather to ensure that it is "limited": cl 3.1. Moreover, as Mr Skinner submits, the word "generally" and the general law in relation to the application of policies require consideration of the particular characteristics of a proposed "tavern".
36 The Tribunal considers that it is appropriate, in the particular circumstances of this case, to exercise flexibility in the application of the Liquor Policy and, in particular, that the provisions of the Policy relied on by the City do not warrant refusal of the application, for the following four reasons.
37 First, the proposed development is not a "larger tavern". As noted earlier, it is significantly smaller than any other hotel, tavern or nightclub in the locality.
38 Second, the proposed development incorporates a frontage that remains open during regular retail trading hours and will facilitate street activity.
39 Third, for reasons discussed below, the Tribunal considers that the proposed development is likely to have an acceptable impact in relation to amenity.
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40 Finally, the proposed development is consistent with all other relevant provisions of the Liquor Policy and with all other planning provisions. In particular, the proposal:
• is "smaller in floor space and [has] a reduced number of permissible patrons allowed than has previously been the case" (Liquor Policy cl 3.0);
• is a "more flexible licensed premises that [has] the capacity to change [its] character, function and/or clientele during the course of a day or week" (Liquor Policy cl 3.0);
• has access to parking at the rear and is located in the heart of the Town Centre and at a considerable distance from the closest residential premises (Liquor Policy cl 3.0 and cl 4.1).
41 Draft Amendment 7 to TPS 4 is an omnibus amendment which is principally concerned with car parking provisions. Amendment 7 also proposes the deletion of the objective of the Town Centre zone in cl 53(g) of TPS 4 and the insertion of the following zone objectives:
"(g) to generally discourage the concentration of uses characterised by after hours operation and by lower levels of activity during normal shopping hours;
(h) to ensure that any further development of tavern, hotel or nightclub uses are generally not located adjacent to or within close proximity of the strategic Rokeby Road/Hay Street and Rokeby Road/Roberts Road intersections or within close proximity of equivalent existing uses, and that those uses are more evenly spread geographically throughout the Town Centre zone; and
(i) any further development or growth in the number of tavern, hotel or nightclub uses generally being modest, with permissible patron numbers being no greater than 200 for any single venue."
42 Amendment 7 has been adopted by the City and advertised for public comment. According to the evidence of Mr Murray Kimber, a director of Busen Pty Ltd, over 100 objections were made to the City in relation to the proposed amendment to cl 53 of the Scheme, including an objection from Busen Pty Ltd. This evidence was not challenged or contradicted.
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43 On 12 December 2006, having made a recommendation to the Council that it should not reconsider its decision which is the subject of this review, the City's Planning Committee also resolved that "the Council records its satisfaction with the Liquor Licensing Provisions (amendments to clauses 50 and 53) noted within the proposed Town Planning Scheme Amendment No 7 (which directly relates to the application for review)".
44 Amendment 7 is a seriously-entertained planning proposal and, therefore, a relevant matter for consideration in the exercise of planning discretion. However, the Tribunal considers that minimal weight should be given to the proposed amendment to cl 53 of TPS 4 in the circumstances of this case.
45 In Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [59], the Tribunal identified four principal matters for consideration in determining what weight should appropriately be given to a draft amendment to a planning instrument. The four considerations are:
1) the degree to which the draft addresses the specific application;
2) the degree to which the draft is based on sound town planning principles;
3) the degree to which its ultimate approval could be regarded as certain; and
4) the degree to which its ultimate approval could be regarded as imminent.
46 In relation to the degree to which the draft addresses the specific application, cl 53(g) and cl 53(i) are not relevant to the application, because it is not characterised by after-hours operation and by lower levels of activity during normal shopping hours and has only 108 patrons. Proposed cl 53(h) is relevant to the application, although it implies an element of flexibility by use of the word "generally".
47 In relation to the degree to which the draft is based on sound town planning principles, Mr Rowe considers that an adequate justification has not been put forward for the proposed amendment. Mr O'Neill considers that the amendment is relevant to the character of the area which is a matter of policy.
48 It is unnecessary to come to a view as to whether the proposed amendment is based on sound town planning principles. Assuming that it is, the proposed amendment can only be given minimal weight because of
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- the degree of uncertainty as to whether the draft will be made by the Minister for Planning and Infrastructure (Minister) and, if so, when, for the following three reasons.
49 First, although the Planning Committee has recorded its "satisfaction" with the proposed amendment, Mr O'Neill indicated that that Committee does not have delegation to adopt a Scheme amendment on behalf of the Council.
50 Second, and in any case, the Council is not permitted to adopt a Scheme or Scheme amendment without having considered the submissions made in respect of it: Town Planning Regulations 1967 (WA) reg 17(2). Neither the Planning Committee nor the Council has considered the submissions in relation to the proposed amendment to cl 53. Mr Rowe's inquiries indicate that the Council is scheduled to consider Amendment 7 at the end of this month.
51 Third, there is no indication in the evidence as to the attitude of the Western Australian Planning Commission or of the Minister in relation to the proposed amendment.
52 The Tribunal, therefore, considers that the location of the proposed development is acceptable having regard to strategic planning considerations.
Is the development acceptable in relation to amenity?
53 The general planning objectives of the Scheme include "to protect and enhance the health, safety and general welfare of the City's community and the social, physical and cultural environment": cl 7(a). In considering an application for development approval in the Town Centre zone, the Council (and the Tribunal on review) is required to have regard to, among other considerations, "the protection of the amenity of areas adjacent to the Town Centre Zone": cl 53(e). Furthermore, the Tribunal is required to have regard to "the conservation of the amenity of the locality" (cl 27(4)(g)) and "the location of the proposed facility, and its potential impact on the amenity and character of the locality" (cl 27A(2)(a)).
54 The City contends that the proposed tavern is likely to be detrimental to the amenity of the locality and the health, safety and general welfare of the City's community, and exacerbate existing detrimental effects. The City contends that the detrimental effects involve:
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- • increased anti-social behaviour, being drunk and disorderly conduct, property damage and assault;
• motor vehicle injuries; and
• pedestrian road injuries.
55 In support of these contentions, the City relies on the evidence of Sgt Raymond Briggs, the officer in charge of the Subiaco police station who has 27 years' policing experience, and Dr Tanya Chikritzhs, an epidemiologist with over 10 years' experience in alcohol research.
56 In his statement of evidence, Sgt Briggs observed that the Hay Street/Rokeby Road intersection is a main thoroughfare for vehicles driving to the western suburbs and attracts a large volume of traffic at night, particularly on weekends and when events are held at Subiaco oval, and that the amount of pedestrian traffic at this intersection, particularly at closing time of licensed premises and after theatre events, is chaotic. Sergeant Briggs has observed intoxicated persons moving between licensed premises, particularly from the Subiaco Hotel to nearby late night bars, and said in his statement of evidence that the combination of heavy vehicular and pedestrian traffic at the Hay Street/Rokeby Road intersection and intoxicated patrons "creates a very dangerous environment when the [Subiaco business district] is heavily patronised". Sergeant Briggs also expressed the following opinion in his statement:
"My experience tells me that the inclusion of further licensed premises on this intersection will only exacerbate the problems of intoxicated patrons, queuing and associated conflict with vehicular traffic."
57 However, in cross-examination, Sgt Briggs conceded that when he wrote his statement of evidence he understood that the proposed tavern included not only the site but also the Chutney Mary's Indian Restaurant premises. The floor area of the proposed tavern is approximately half that assumed by Sgt Briggs and does not have direct access to the Hay Street/Rokeby Road intersection. Sergeant Briggs also indicated in cross-examination that, after he had written his statement of evidence, he gained a better understanding of the proposed development as a result of a meeting he attended at the site on 1 February 2007.
58 Sergeant Briggs said that the proposed queuing management plan and closed circuit TV cameras will be of assistance in reducing any anti-social behaviour that might result from the development. Sergeant Briggs also accepted that the understanding of the proposal he
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- gained on 1 February 2007 had addressed most, if not all, of the concerns that he had about it. He gave the following evidence:
"But certainly in relation to the comments I made [in my statement of evidence and in a submission to the City] in relation to queue management, security that I had made previously, you have done your homework and you have addressed those issues."
60 Doctor Chikritzhs gave evidence that research over a considerable period indicates that there is a positive linear relationship between the physical availability of alcohol, as measured by the density of licensed premises in a defined geographical region, and levels of alcohol-related harms arising in that region.
61 Doctor Chikritzhs said that the effect that alterations in the density of liquor outlets may have on alcohol-related harms has been shown to be dependent on the type of liquor licence and the degree of local area "bunching". She considers it significant that the proposed development is a "tavern" in a locality where there is already a "bunch" of licensed premises. In relation to the licence type, she referred to a 1990 Perth study which showed that patrons of hotels, taverns and nightclubs, where alcohol may be consumed in the absence of food, are "drink-for-drink … more likely to be associated with a range of alcohol-related crimes than premises which are licensed to sell alcohol only when accompanied by a meal". Doctor Chikritzhs indicated that several crosssectional studies suggest that alcohol-related problems are more likely to occur where licensed premises are located in close proximity to one another.
62 Doctor Chikritzhs also noted that the proposed tavern would be open from midnight to 1 am on Friday, Saturday and Sunday mornings and that research indicates that hotels and taverns which trade after midnight are associated with increased levels of violence.
63 Finally, Dr Chikritzhs noted that police records indicate that, during the three month period from May 2005 to July 2005, the number of reported offences that occurred in the Subiaco area exceeded the number that occurred in the Claremont area, which has a comparable demographic
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- profile and a similar late night entertainment precinct. During this period, the proportion of all reported offences that occurred at licensed premises in Subiaco was more than 50% greater than the proportion for Claremont and the proportion of all reported offences which occurred on streets and footpaths in Subiaco was more than twice the proportion for Claremont.
64 In consequence of these observations, Dr Chikritzhs concluded in her statement of evidence that the proposed development "will, in all probability, increase the level of harms associated with drinking in the Subiaco area".
65 However, in oral evidence, Dr Chikritzhs conceded that, in applying the studies she referred to, there has to be careful consideration given to the particular circumstances of the proposal and the local context. She said "[y]ou certainly can't expect to apply a direct relationship in one country or one situation or one environment to another. There has to be a recognition of differences".
66 In oral evidence, Dr Chikritzhs also conceded that, in contrast to the type of hotels, taverns and nightclubs which were the subject of the 1990 Perth study, "in many respects the proposal put forward [in this case] resembles the trading conditions under which a restaurant would operate" and certain factors which possibly contributed to the results of the study do not apply to the proposed development.
67 In relation to her comparison of police reported offences in the Subiaco and Claremont areas, Dr Chikritzhs conceded that, during the three month period in question, in excess of half a million visitors attended Subiaco Oval, whereas Claremont does not have an equivalent venue. Dr Chikritzhs' analysis did not take this difference into account.
68 Mr Jonathon Riley, a traffic engineer, gave evidence on behalf of Busen Pty Ltd that of 44 vehicle crashes that occurred at the Hay Street/Rokeby Road intersection during the five year period from 1 January 2001 to 31 December 2005, only seven crashes (15.9%) occurred at night and only one (2.3%) involved a pedestrian. Mr Riley's evidence was not challenged or contradicted.
69 As noted earlier in these reasons, the proposed tavern is significantly smaller in floor area than the other taverns, hotels and nightclubs in the locality. Consequently, the maximum number of patrons that can be accommodated in the proposed development under the Health Regulations is significantly less than at other taverns, hotels and nightclubs. In particular, the proposed tavern could accommodate, according to the
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- information contained in Dr Chikritzhs' evidence, approximately 22% of the maximum number of patrons at the Subiaco Hotel, approximately 43% of the maximum number of patrons at the Llama Bar and approximately 38% of the maximum number of patrons at Club Red Sea.
70 Furthermore, Mr Kimber gave evidence, which was not challenged or contradicted, that no other licensed premises in the vicinity operate subject to conditions such as the agreed conditions concerning the availability of hot and cold food and the provision of tables and chairs for at least 70 patrons. Sergeant Briggs confirmed in oral evidence that Club Red Sea is not required to provide any food. Although patrons in the proposed tavern would be able to consume alcohol without consuming food, the condition requiring the availability of food is significant because, as Dr Chikritzhs noted, the consumption of alcohol while eating a substantial meal, especially one containing significant protein and/or fat, slows the physiological process of intoxication.
71 The evidence also shows that there would be other significant differences between the proposed tavern and other taverns, hotels and nightclubs in the locality. In particular:
• the proposed tavern would cease trading earlier than the Llama Bar (by one hour on Wednesday and by two hours on Saturday and Sunday morning), the Subiaco Hotel (by one hour on Monday, Tuesday and Wednesday, and by two hours on Sunday) and Club Red Sea (by five hours on Monday to Sunday morning and by two hours on Sunday night);
• in contrast to Club Red Sea, which only commences trading at 6 pm Monday to Saturday and 8 pm on Sunday, the proposed tavern would be open throughout retail trading hours. Furthermore, although it appears that the Llama Bar is licensed to open at 7 am Monday to Thursday and at 10 am Friday to Sunday, Mr Kimber said that, consistently with its character as a nightclub, the Llama Bar in fact only opens at about 8 pm;
• live music would be precluded at the proposed tavern, whereas live music is available at the Subiaco Hotel;
• the sale of liquor for consumption off site would be precluded at the proposed tavern, whereas liquor may be purchased for consumption off site at the Subiaco Hotel;
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- • the requirement for tables and chairs to be provided for at least 70 patrons including tables and chairs for at least 30 patrons in the front part of the site, at all times, precludes the proposed tavern operating as a dance club, whereas the Llama Bar promotes itself as a late night bar, providing loud dance music with disc jockeys from overseas; and
• the proposed tavern would have an active frontage throughout the day whereas the Subiaco Hotel is a traditional pub and the Llama Bar and Club Red Sea each provide a non-active frontage.
72 The Tribunal considers that, notwithstanding the positive linear relationship between the density of licensed premises and the level of alcohol related harms generally found in the studies referred to by Dr Chikritzhs, the objective characteristics of the proposed tavern are such that it is likely to have an acceptable impact in relation to amenity. The principal objective characteristics of the proposed tavern are:
• its location in the heart of the Subiaco Town Centre and at a considerable distance from the closest residential premises;
• its relatively small size;
• the requirement to have food available at all times;
• the requirement to have chairs and tables for at least 70 out of a maximum 108 patrons at all times;
• the preclusion of live music;
• the requirement to implement an approved management strategy including a queue management strategy which Sgt Briggs regards as appropriate; and
• the proposed hours of operation which only involve trading beyond midnight for three hours a week.
73 Moreover, although the proposed tavern would be an addition to an existing "bunch" of licensed premises, it is significantly different to the other licensed premises in the material respects discussed earlier.
74 Finally, and specifically in relation to the potential for motor vehicle injuries and pedestrian injuries, the evidence of Mr Riley suggests that, notwithstanding the amount of traffic through the Hay Street/Rokeby Road intersection, the number of existing licensed
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- premises and that approximately 1.5 million visitors are attracted annually to Subiaco by events at Subiaco Oval, there does not appear to be a significant traffic safety problem at night or a significant pedestrian safety problem. The relatively small increase in the total maximum number of patrons at licensed premises in Subiaco that would result from the proposed development is not, therefore, likely to give rise to a significant safety issue for vehicles or pedestrians. Moreover, patrons leaving the proposed tavern by car from the car park at the rear would travel west along Hay Street from the site, avoiding the intersection of Hay Street/Rokeby Road entirely. The site does not have a direct frontage to the Hay Street/Rokeby Road intersection. Further, the management strategy can require that patrons wishing to enter the tavern not be permitted to queue on Rokeby Road, but rather in the covered area on site at the rear, and that patrons must exit after a certain time via the rear.
Should the development consent be time limited?
75 The Council's assessing officer recommended that the development application be approved subject to conditions including a condition limiting the approval to 12 months. The assessing officer's reasons for this proposed condition were as follows:
"Whether any increased anti-social behaviour associated with the proposed tavern will have a significant impact on the amenity of the area however cannot be accurately measured prior to the licensed premises operating.
It is open to the City to issue a 12 month temporary approval to allow the close monitoring of the tavern and to empirically assess whether the tavern does in fact significantly increase anti-social behaviour in the area. If after 12 months of operation and close monitoring of the tavern it was found to significantly contribute to anti-social behaviour in the area, any subsequent development application for the continued use of the tavern could be more reasonably considered on the basis of the evidence."
76 In its without prejudice draft conditions of approval, which the City was required to file in accordance with the Tribunal's programming orders, the City proposed that, if the Tribunal were minded to approve the proposed development, the 12 month limitation recommended by its assessing officer should be imposed. However, when asked by the Tribunal for his opinion as to whether this condition is appropriate, Mr O'Neill said that he did not feel equipped to be able to contribute to
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- this question. He noted that the condition is intended to provide an assessment of performance and that it is a cautious approach, but did not wish to add anything further. In contrast, Mr Rowe expressed the opinion that the condition is not appropriate, because it does not "add anything in the circumstances of this particular case".
77 The Tribunal does not consider that a time limited consent is warranted in the circumstances of this case. For reasons set out earlier, the Tribunal is satisfied that the location of the proposed tavern is acceptable and that, on account of its objective characteristics, it is likely to have an acceptable impact in relation to amenity. A time limited consent is not, therefore, necessary in the circumstances.
Conclusion
78 The proposed tavern is a use that is not permitted unless the Council (or the Tribunal on review) has exercised its discretion by granting planning approval taking into consideration whether the nature of the use is consistent with the planning objectives of the Scheme and the planning policies with respect to the Town Centre zone. The Tribunal has determined that the location of the proposed development is acceptable, having regard to strategic planning considerations, and that the proposed development is acceptable in relation to the health, safety and general welfare of the community and the amenity, including the social amenity, of the Town Centre and neighbouring areas.
79 In arriving at these findings, the Tribunal has identified earlier in these reasons the principal, relevant planning objectives of the Scheme and the planning policies of the zone. Other relevant planning objectives and policies, with which the proposed development is consistent, are:
• "to cater for the diversity of demands, interest and lifestyles by facilitating and encouraging the provision of a wide range of choices in … leisure … opportunities" (TPS 4 cl 7(b));
• a consideration as to "the effect of the proposed development on the mix of activities in the locality, and the desirability of maintaining a mix of land uses characteristic of the locality" (TPS 4 cl 27A(2)(c)); and
• "to ensure the development of continuous 'shop-front' development along street frontages in accordance with the Main Street design principles, and avoid disruption caused
- by blank or uninteresting building facades" (TPS 4 cl 53(f)).
80 The Tribunal considers that the proposed tavern warrants development approval subject to conditions.
81 The proposal is a well located development consistent with the overall strategic planning for the Subiaco Town Centre.
82 Although an intention of the Liquor Policy is that generally licensed premises are to be more evenly spread geographically throughout the commercial districts of the City, whereas the proposed tavern is in close proximity to the Subiaco Hotel, the Regal Theatre Bar and two nightclubs, the Tribunal considers that, in the circumstances of this case, it is appropriate to depart from the strict application of the Liquor Policy. The use of the word "generally" in the Policy implies flexibility in particular circumstances. It is appropriate to exercise flexibility in this case, because of the relatively modest size of the proposed tavern and the consequent maximum number of patrons, its active frontage during regular retail hours, its likely acceptable amenity impact because of its objective characteristics and its consistency with other relevant statutory and strategic planning provisions.
83 Furthermore, given that proposed amendments to TPS 4 in relation to licensed premises have not yet been adopted by the City following a consideration of public submissions and that there is no indication as to the attitude of the Commission or of the Minister in relation to whether the amendments should be made and, if so, when, the amendments can only properly be given minimal weight in terms of orderly and proper planning in the assessment of the application.
84 A time limited consent is not necessary in the circumstances of the case.
Orders
85 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent to refuse development approval for the use of 71 – 75 Rokeby Road, Subiaco as a tavern is set aside and a decision is substituted granting development approval in accordance with the provisions of the City of Subiaco Town Planning Scheme No 4 and the
- Metropolitan Region Scheme for the use subject to the following conditions:
(1) The development shall be carried out in accordance with the plan entitled Proposed Tavern Application drawn by Oldfield Knott Architects Pty Ltd Job No 04013 Drawing No PO1 Rev F dated 18 January 2007.
(2) The maximum number of patrons permitted within the tavern is not to exceed 108 patrons at any time.
(3) Hours of operation are from 8 am to 12 midnight Monday to Wednesday, 8 am to 1 am (next day) Thursday to Saturday, and 10 am to 10 pm Sunday, but with no service of liquor prior to 12 midday on any day.
(4) Hot and cold food must be available to patrons at all times during trading hours. In particular, a regular full menu must be available at all times up until 10.30 pm Monday to Saturday and 10 pm Sunday. From 10.30 pm Monday to Saturday, an extensive snack menu must be made available which, upon request by the City's Building and Health Services, must be approved by it.
(5) No live music is to be played from the premises.
(6) Car parking spaces are to be provided as follows:
(i) Nine of the existing car parking spaces on site for full time use by staff and patrons of the tavern;
(ii) Six car parking spaces for use by staff and patrons of the tavern during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating.
(7) The one car bay allocated to the approved 42 square metre office upstairs is to be made available to the approved tavern at all times when the office is not operating.
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- (8) The maximum eating and drinking area in the tavern at 71 – 75 Rokeby Road, Subiaco is limited to 92 square metres of which:
(i) a maximum of 68 square metres may be used at any time that the tavern is operating; and
(ii) the 24 square metres located towards the rear of the tavern as marked on the approved plans may only be used at times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are not operating; and
(iii) the 34 square metres located towards the front (east) of the building as marked on the approved plans is to permanently include tables and chairs during trading hours; and
(iv) tables and chairs are to be provided for at least 70 patrons at all times during trading hours, including tables and chairs for at least 30 patrons in the area referred to in (iii) above.
(9) A Management Strategy for the premises is to be approved by the City and implemented to the City's satisfaction prior to the operation of the tavern and thereafter maintained to the City's satisfaction. The Management Strategy is to contain, but is not limited to:
(i) the number of licensed security staff present;
(ii) complementary drinking water;
(iii) complaint and reporting procedures;
(iv) patron control (including staff training);
(v) sale of alcohol;
(vi) queue management;
(vii) access to taxi rank, complementary taxi calling service;
(viii) lighting in and around the site;
(ix) cleaning of the site and the public area around the site;
- (x) management of the restricted seating area located towards the rear of the tavern as marked on the approved plans during times when the commercial tenancies at 77 Rokeby Road, 479 Hay Street and upstairs offices are operating; and
(xi) any other relevant matters.
- (10) The sale of liquor for consumption off site is not permitted.
(11) All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.
(12) Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.
(13) All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and retained is to be to the satisfaction of the Director Technical Services.
(14) The proposed dry store and washing up area currently being used by the existing Chutney Mary's Indian Restaurant is to be relocated to the satisfaction of the City's Building and Health Services.
(15) Fire hose reels and fire hydrants are required to be installed to service the entire building, to the
- satisfaction of the City's Director of Development Services.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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