CALTEX AUSTRALIA PETROLEUM PTY LTD and TOWN OF VINCENT - [2010] WASAT 174

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CALTEX AUSTRALIA PETROLEUM PTY LTD and TOWN OF VINCENT [2010] WASAT 174

MEMBER: MS M CONNOR (MEMBER)

HEARD: 15 SEPTEMBER 2010 AND 27 OCTOBER 2010

DELIVERED : 30 NOVEMBER 2010

FILE NO/S: DR 361 of 2009

BETWEEN: CALTEX AUSTRALIA PETROLEUM PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent

Catchwords:

Town planning - Development application - Demolition of existing service station and construction of new service station with associated signage - Replacement of underground tanks required to avoid a potential environmental disaster - Whether the development is consistent with orderly and proper planning and the conservation of the amenities of the locality having regard to the location, height, scale, design, and nature of the proposal and the terms of the Masterplan - Whether development can be constructed in the Metropolitan Region Scheme Other Regional Roads reservation area - Western Power clearance restrictions

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(5)(a)
Town of Vincent Town Planning Scheme No 1, cl 6, cl 10, cl 15, cl 18, cl 38(3), cl 35(5), cl 38(5), cl 38(5)(b), cl 40, cl 47, cl 47(9), Zone Table

Result:

Amended plans being filed by the applicant

Category: B

Representation:

Counsel:

Applicant: Mr D Solomon
Respondent: Ms S Bransby (Representative)

Solicitors:

Applicant: Solomon Brothers
Respondent: Planning and Construction Consultant

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

Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79
Falc Pty Ltd and Anor v State Planning Commission (1991) 5 WAR 522
Land Alliance Pty Ltd and City of Belmont (2005) 39 SR (WA) 119
Permanent Trustee Australia Ltd v City Wanneroo (1994) 11 SR (WA) 1
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Caltex Australia Petroleum Pty Ltd applied to the State Administrative Tribunal for review of the Town of Vincent's decision to refuse planning approval for demolition of an existing service station and construction of a service station with associated signage on No 317 No 321 Vincent Street, Leederville.
A preliminary issue arose as to whether the Town of Vincent had power under delegation to determine the development application made under the Metropolitan Region Scheme (MRS). The Tribunal, in Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79, determined that the answer to the preliminary question was 'yes' and programmed the matter for final hearing to determine whether to affirm, set aside or vary the Town of Vincent's decision to refuse planning approval.
The key issue to be determined was whether the development was consistent with orderly and proper planning and the conservation of the amenities of the locality having regard to the location, height, scale, design and nature of the proposal and the terms of the Leederville Town Centre Masterplan and Built Form Guidelines.
A significant factor in the determination of this matter was the fact that there was an existing service station on the subject land that had been operating with approval for the past 40 years, and the impetus for redevelopment of the site was the need to replace the existing fuel tanks to avoid a potential environmental disaster. This factor, however, did not negate the Tribunal's responsibility, in exercising discretion, to consider the matters set out in cl 38(5) of the Town of Vincent Town Planning Scheme No 1. The Tribunal was cognisant of the vision of the Masterplan, which acknowledges the use of the site as a service station. In considering the specific aim of 'Precinct 4 - Oxford Markets Precinct Vincent Street' to encourage mixed use buildings along Vincent Street, the only conclusion the Tribunal could arrive at, based on the evidence adduced, was that it was not possible to accommodate a service station use with other mixed uses on the subject land given the size of the site and current regulations relating to separation of distances for LP Gas dispensers and residential/commercial uses. As to the design issues raised in relation to the built form of the development, the Tribunal considered that a number of modifications should be made to the design which would result in a better built form outcome that was more consistent with the terms of the Masterplan. With the incorporation of the suggested design modifications, the Tribunal was satisfied the proposed development would be consistent with orderly and proper planning and the conservation of the amenities of the locality, and warranted approval.
The Tribunal ordered that amended plans reflecting the suggested design modifications be filed and established a process for the consideration of these plans which would conclude with the Tribunal reviewing the amended plans and, if satisfied that they were consistent with its reasons, allow the application for review and grant planning approval to the application subject to the conditions as agreed by the parties and discussed in the reasons.

Introduction

Caltex Australia Petroleum Pty Ltd (applicant) made application to the Town of Vincent (respondent or Council) for approval to demolish the existing service station and to construct a new service station with associated signage on No 317 - No 321 (Lots 12, 13 and 14) Vincent Street, Leederville (subject land or site).
The application to commence development was refused by the respondent at its meeting of 25 August 2009 for the following reasons:
(i)the development is not consistent with the orderly and proper planning and preservation of the amenities of the locality;
(ii)the non-compliance with the Metropolitan Region Scheme Other Regional Road reservation as the proposed development is proposed to be constructed within the Other Regional Road reservation; and
(iii)the proposed layout of the service station is not consistent with future planning of the adjoining land comprising 'The Avenue' and Town owned carpark, which will severely compromise access for tankers accessing the site via 'The Avenue' and exiting the site via Vincent Street, as proposed, due to the proposed future planned changes to 'The Avenue' and adjoining Town owned land.
The Council also resolved to advise the applicant and owners that the subject proposal is considered to be an underdevelopment of the site and not consistent with the overall vision of the area of Leederville.
The applicant, on 21 September 2009, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
A preliminary issue arose as to whether the respondent had power under delegation to determine the development application made under the Metropolitan Region Scheme (MRS). The Tribunal, in Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79, determined that the answer to the preliminary question was 'yes' and programmed the matter for final hearing to determine whether to affirm, set aside or vary the respondent's decision to refuse planning approval.

Subject land

The subject land is more particularly described as follows:
•Lot 12 Vincent Street, Leederville being the land comprised in Certificate of Title Volume 1051 Folio 724 (Lot 12);
•Lot 13 Vincent Street, Leederville being the land comprised in Certificate of Title Volume 1166 Folio 146 (Lot 13); and
•Lot 14 Vincent Street, Leederville being the land comprised in Certificate of Title Volume 1033 Folio 326 (Lot 14).
The subject land has a total area of 1,413 square metres and is situated on the south eastern corner of the intersection of Vincent Street and Leederville Parade. An existing laneway, referred to as The Avenue, runs along the rear boundary of the subject land, accessing both Vincent Street and Leederville Parade.

Proposal

The application involves the demolition of an existing service station, which has been operating on the subject land since circa 1960, and the construction of a replacement service station, comprised of the following elements:
•convenience store including petrol bowsers, gas bowsers, floorspace area for sales, storage, office and ablutions;
•car parking, access and egress;
•service yard;
•landscaping; and
•associated signage.
Mr Ross Bohan, a Retail Sales Manager for Caltex Australia Petroleum Pty Ltd, told the Tribunal that the underground fuel tanks of the existing service station, which are approximately 40 years old, need replacing urgently as there is a significant risk that the tanks will fail resulting in an environmental disaster.

Planning framework

Portions of Lots 12, 13 and 14 (fronting on to Vincent Street) are reserved 'Other Regional Roads' (ORR reservation) and the remainder of the land is zoned Urban in the MRS. In addition, the western boundary of the site abuts land reserved 'Primary Regional Roads' (Mitchell Freeway) in the MRS.
The subject land is zoned District Centre in the Town of Vincent Town Planning Scheme No 1 (TPS 1 or Scheme).
Clause 6 sets out the 'Objectives and Intentions' of TPS 1. The general objectives of the Scheme that are of particular relevance to this matter are:
...
(b)to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment;
(c)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which -
(i)recognises the individual character and needs of localities within the Scheme zone area; and
(ii)can respond readily to change;
…
(e)to promote and safeguard the economic well-being and functions of the Town;
(f)to co-ordinate and ensure that the development is carried out in an efficient and environmentally responsible manner which -
(i)makes optimum use of the Town's growing infrastructure and resources;
(ii)promotes an energy efficient environment; and
(iii)respects the natural environment;
...
Clause 10 of TPS 1, which reinforces the objectives stated in cl 6, divides the Scheme area into precincts, and notes that for each precinct there is a planning policy contained in the Council's policy manual. The subject land is located in precinct 'P4 Oxford Centre'.
Clause 18 of TPS 1 requires the development of land to be in accordance with the standards and requirements contained in the following documents:
… Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential [Design] Codes.
Subclause 38(3) of the Scheme provides the authority for the Council to refuse or approve an application. Without limiting the scope of the discretion to determine an application, cl 38(5) of the Scheme sets out the matters to which regard is to be given in the determination of an application. The pertinent matters relating to this application are as follows:
•the provisions of this Scheme and of any other written law applying within the Scheme area including the MRS (subclause (a));
•any relevant planning policy (subclause (b));
•the Scheme Map (subclause c);
•the orderly and proper planning of the locality (subclause (g));
•the conservation of the amenities of the locality (subclause (h)); and
•the design, scale and relationship to existing buildings and surrounding of any proposed building or structure (subclause (i)).
The respondent initially raised cl 40 of the Scheme 'Determination of Noncomplying Applications' as a matter for consideration in the determination of this application but later accepted that the application was not a noncomplying application for the purposes of TPS 1.
Clause 18 and cl 38(5)(b) of TPS 1 both require consideration of planning policy in the determination of an application. Clause 47 of the Scheme empowers the Council to make planning policies relating to an aspect or aspects of development control or any other matter relevant to the Scheme. These policies may be applied to all or part of the Scheme area. Two policies referred to by the parties were:
•Leederville Town Centre Masterplan and Built Form Guidelines (Masterplan); and
•Policy 3.1.4 - Oxford Centre Precinct (Policy 3.1.4).
Clause 47(9) of the Scheme provides that a planning policy prepared under cl 47 'shall be consistent with the Scheme text and where any inconsistencies arise, the provisions of the Scheme text prevail'.
The purpose of the Masterplan is to provide 'a planning framework that will ensure the continued development of Leederville in line with the stated vision of the Town of Vincent'. The plan contained in part 2.0 of the Masterplan depicts the subject land as 'Possible New Service Station Redevelopment'. In addition, the Masterplan identifies eight major precincts in the Leederville Town Centre, of which the subject land is situated in Precinct 4 - Oxford Markets Precinct (Precinct 4). The stated vision for Precinct 4 is as follows:
... to provide public car parking in a multistorey facility with a supermarket and food markets at the ground level. Also in the masterplan is a new icon mixed-use tower and a revitalised 'laneway' at the rear of the Oxford Street shops.
The Precinct Guidelines developed for Precinct 4 - 'Vincent Street' are as follows:
Aim
•To increase the density of mixed use buildings along Vincent Street.
•To create a new icon building on the South West corner of Vincent and Oxford Street and create a new Western gateway.
The illustration, which references specific points pertaining to development of the precinct, depicts Lot 13 and Lot 14 as being partially developed with a three storey building set well back from the street and no apparent development on Lot 12, being the westernmost portion of the site.
Specific points contained in the Precinct Guidelines relating to this application include:
...
3.Building setbacks to Vincent Street are subject to endorsement from Western Power and may be subject to Metropolitan Region Scheme road widening requirements.
4.The ground floor of any new building is to be activated. To this end, fully transparent glazing to any ground floor development with Vincent Street frontage is to make up no less than 70% of the ground floor façade.
...
A photograph of the northern side of Vincent Street has also been inserted in the Precinct Guidelines. The caption under the photograph reads, '[d]evelopments on the service station site are to be a similar height and scale to the development on Vincent St. opposite the site'.
Policy 3.4 provides guidelines for residential/commercial areas outside the Masterplan. This policy is only relevant in that it relates to the land on the northern side of Vincent Street.

Issues

The following three principal issues arise for determination in relation to this matter.
1)Whether the development is consistent with orderly and proper planning and the conservation of the amenities of the locality having regard to the location, height, scale, design and nature of the proposal and the terms of the Masterplan.
2)Whether the development can be constructed within the Metropolitan Region Scheme Other Regional Road Reservation area (ORR); and
3)Whether the Western Power required setback from the 132 kilovolts power lines, directly adjacent the property, is sufficient.
The Tribunal will address each of these issues in turn.

Whether the development is consistent with orderly and proper planning and the conservation of the amenities of the locality having regard to the location, height, scale, design and nature of the proposal and the terms of the Masterplan

The respondent contended that the proposed development was inconsistent with the aims of the Masterplan and resulted in an underdevelopment of a key site in the Leederville Town Centre which is contrary to the orderly and proper planning and the conservation of the amenities of the locality.
There was some disagreement between the planning experts' witnesses as to whether the existing use was a 'Service Station' or a 'Convenience Store', as the classification of the use affected the permissibility of the use. Ms Sandra Bransby, who both represented the respondent and appeared as a planning expert, considered the existing use to be a 'Service Station', which is listed as an 'AA' use in the Zone Table of the Scheme. Mr Paul Kotsoglo, a planning consultant called by the applicant, considered the land use to fall within the definition of 'Convenience Store', which is a use not specifically mentioned in the Zone Table, and submitted that the provisions of cl 15 'Unlisted Uses' were applicable to this application. However, nothing turns on this point, as the experts agreed and it is common ground with the parties that either land use is capable of approval; the use in any case is a continuing use; and the application only relates to the physical development of the land.
Ms Bransby informed the Tribunal that the Masterplan had been adopted in accordance with cl 47 of TPS 1 to guide development of the built form within the Leederville Town Centre. Ms Bransby agreed that the Masterplan did not prejudice the continued use of the land for service station but argued that any redevelopment of the subject land required the built form to be consistent with the vision of the Masterplan. She considered the intent of Precinct 4 was to facilitate development on the subject land to a maximum height of three storeys and to encourage inclusion of mixed uses in any redevelopment of the site. She considered the proposed development to be inconsistent with the Masterplan as the design failed to:
•respond to the height and scale of the building on the opposite side of Vincent Street;
•respect the subject land as a 'key gateway site' as it did not provide for an icon building as part of the western gateway;
•provide interaction with the street as no transparent glazing is provided to either Vincent Street or Leederville Parade; and
•respond sensitively and intelligently in the use of built form, colour and material with reference to historical buildings.
Further, there was initially some concern expressed regarding the proposed layout of the service station and the impact of the sweep paths of the tankers on The Avenue and on Leederville Parade. An amended plan was prepared by Mr Donald Veal, a traffic consultant called on behalf of the applicant, that addressed the concerns raised and resolved the matters identified by the respondent in respect to containing the sweep within the proposed future carriageway of The Avenue. Mr Veal noted that a small modification would be needed to be made to the kerb line to allow for the movement from Leederville Parade into The Avenue. However, he did not consider this to be an impediment as the future design of The Avenue would have to provide access for such vehicles, as fuel tankers are not considered to be exceptional vehicles.
Mr Peter Hobbs, an architect who was involved in the preparation of the Masterplan, was called by the respondent to give evidence in these proceedings. Mr Hobbs submitted that the western approach to the Leederville Town Centre was marred by low levels of commercial street activation and an imbalance of development between each side of Vincent Street. He considered the proposed development maintained a very low density footprint that did not provide for diversity and its presentation to the street was exactly what the Masterplan sought to avoid. He viewed the subject land as the 'beginning of the precinct' and expressed the opinion that any development on the land should present as a 'clear marker that it's a gateway to a precinct of mixed use, diversity and activated frontages'. He described the current proposal as a 'very brutal brick box' that failed to respond to the aims of activation and passive surveillance of the street.

Mr Hobbs considered the conceptual alternate design adduced in Mr Bohan's evidence to be an improvement, as the building included some street activation and a taller element which addressed the corner but failed to resolve the issue of density and diversity. He contended that these aims could be achieved by incorporating the service station with other mixed uses on the subject land.
The Tribunal was told that the replacement of the fuel tanks is proposed to prevent environmental, health and safety issues arising from the potential for the failure of the underground fuel tanks. It was explained to the Tribunal that the underground tanks at the Leederville site were of a similar age and type as tanks at another site owned by Caltex that had recently experienced a failure of the tanks. The applicant asserted that the replacement of the tanks at the Leederville site necessarily required that the above ground facilities, including the service station canopy and convenience store, be demolished and rebuilt or alternatively, dismantled and reinstated. The applicant acknowledged that it was possible to replace the tanks without rebuilding the site; however, this was considered to be not practicable or economical and would result in a situation where the site could continue to operate for the life of the new tanks using the current outdated structures.
The proposed demolition and construction of a new service station is 'development' for the purposes of TPS 1 and as such, cl 38(5) of TPS 1 requires consideration of a number of matters in the determination of an application (see [20]). These considerations must be weighed in the balance along with other matters in reaching a decision on the review.
The Masterplan has been formulated and adopted in accordance with cl 47 of TPS 1 and on the evidence adduced by the respondent, it would seem that the Masterplan is a document that would satisfy the test set down in Permanent Trustee Australia Ltd v City Wanneroo (1994) 11 SR (WA) 1 and adopted by this Tribunal in Land Alliance Pty Ltd and City of Belmont (2005) 39 SR (WA) 119. The Tribunal recognises the importance and role of policy in guiding the respondent in its decisions and promoting rational and consistent decision-making. However, policies should not be applied so inflexibly that where a variance may be appropriate it is simply ignored. As pointed out by Nicholson J in Falc Pty Ltd and Anor v State Planning Commission (1991) 5 WAR 522, 'the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case'. Although his Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
The respondent accepted that the existing service station, which has been operating for the past 40 years, was part of the existing amenity and that 'conservation of the amenities of the locality' is achieved by allowing for the continuation of the use. It was also accepted that sites that sell petroleum products require periodic replacement of underground storage tanks and that the redevelopment of this site is driven by the need to replace the existing fuel tanks to avoid a potential environmental disaster.
The evidence also established that at significant additional cost and impost on future operations, it would be possible to comply with the requirements of Australian Standard 1940-2004 'The Storage and Handling of Flammable and Combustible Liquids' (AS1940) and preserve the existing structures by installing fewer or smaller tanks than proposed in the application and by sheet piling to maintain the integrity of the footings of the existing structures. However, proceeding in this manner does not achieve the aims of the Masterplan and as observed by Mr Hobbs, 'leaving the existing building in an increasing state of agedness and dilapidation would not be a desirable outcome and would be inconsistent with orderly and proper planning'.
The use of the site for a service station is generally consistent with the overall plan for the Town Centre and the vision for Precinct 4 of the Masterplan. The Precinct Guidelines are conceptual and provide principles that should be incorporated into the built form of new development within each of the precincts. However, given the level of detail, it is difficult to suggest that an inflexible approach should be taken in the application of these principles as these are somewhat contingent on the circumstances of each particular case. For example, the precinct guidelines encourage mixed use buildings along Vincent Street and the respondent attempted to reference examples of service stations and mixed uses co-existing on sites. However, the evidence adduced by the applicant establishes that it is not possible to incorporate a service station, which is accepted as an approved use, and mixed use on the subject land given the size of the lot and the regulations governing the separation distances for LP Gas dispensers and residential/commercial uses.
In relation to the issue of built form, the Tribunal accepts the evidence of Mr Hobbs that the conceptual alternate design put forward by Mr Bohan, which is not the current application before the Tribunal, is an improvement on the current proposal as it attempts to embody some of the built form principles advocated in the guidelines for Precinct 4. The Masterplan advocates the inclusion of fully transparent glazing to the ground floor along the Vincent Street frontage to ensure street activation. Mr Kotsoglo indicated that, in his view, the design of the building could be modified to include the required glazing. The Tribunal considers this principle to be a sound town planning principle and one that should be incorporated into the design of the building. In addition, the Tribunal considers the treatment of the western elevation in the conceptual alternate design to be a better outcome than that shown in the current proposal.
With respect to the issue of the height and scale of the building, the Tribunal agrees with Mr Hobbs, that the subject land provides an opportunity to create a signal to traffic that one is transitioning from the freeway to the Town Centre area. However, the Masterplan itself does not express the need for an icon building on the subject land but merely suggests, by reference to a note, that development on the service station site should reflect the height and scale of buildings on the opposite side of Vincent Street. This was interpreted by the respondent to be three storeys in height, which is strictly not correct, as one of the buildings directly opposite the western end of the subject land is a heritage building, which is a single storey building with a two storey façade fronting onto Vincent Street. Although the height of the canopy may be of a similar height as the façade on the heritage building, the physical bulk and scale of the proposed structures cannot be said to reflect the height and scale of the buildings located on the opposite side of Vincent Street. Mr Hobbs suggested, and the Tribunal agrees, that a more desirable outcome would be to incorporate 'some taller element' on the corner which would strengthen the visual relationship of the subject land with the adjacent buildings on Vincent Street, which would be more in keeping with the vision for Precinct 4.

Whether the development can be constructed within the Metropolitan Region Scheme Other Regional Road Reservation area

The site is subject to a 4.9 metre ORR road widening requirement, reducing to 3.2 metres adjacent to the required corner truncation area. According to Mr Veal, the following works would need to be undertaken if the land identified as ORR reservation were be taken for road widening purposes:
•removal of one of the bowser outlets;
•modification to the canopy;
•relocation of signage; and
•alterations to the corner of the retail building.
Mr Bohan, in his witness statement, stated that the canopy of the proposed service station would be built in a modular form to allow it to be partially dismantled should the road widening be actioned in the future. The planning experts agreed that, if the proposal was to be approved, a condition could be imposed requiring that no portion of the building or the underground fuel tanks be within the ORR reservation, and that the canopy and bowers be removed if the road widening is required. If such a condition was imposed, then the concerns expressed by the respondent would be resolved.
Unfortunately, a condition to this effect was not included in the 'without prejudice' draft conditions prepared by the respondent. The Tribunal considers that in the interest of orderly and proper planning such a condition is appropriate. Accordingly, a condition to this effect will be imposed.

Whether the Western Power required setback from the 132 kilovolt power lines, directly adjacent the property, is sufficient

The applicant acknowledged that building setbacks to Vincent Street are subject to endorsement by Western Power and confirmed that the development will comply with any Western Power clearance restriction and Occupational Safety and Health regulation. The respondent did not consider the setback required from the overhead transmission lines to be a major obstacle to development. The planning experts agreed that this matter could be dealt with by way of a condition on any approval. However, the Tribunal does not consider such a condition to be necessary as approval under the planning legislation does not obviate the obligation of the applicant to obtain the necessary approvals embodied in other legislation.

Conclusion

A significant factor in the determination of this matter is the fact that there is an existing service station on the subject land that has been operating with approval for the past 40 years and the impetus for redevelopment of the site relates to the need to replace the existing fuel tanks to avoid a potential environmental disaster. However, this factor does not negate the Tribunal's responsibility in exercising discretion to consider the matters set out in cl 38(5) of the Scheme. The Tribunal is cognisant of the vision of the Masterplan for Precinct 4, which acknowledges the use of the site as a service station. In considering the aim of Precinct 4 to encourage mixed use buildings along Vincent Street, the only conclusion the Tribunal can arrive at, based on the evidence adduced, is that it was not possible to accommodate a service station use with other mixed uses on the subject land given the size of the site and current regulations relating to separation of distances for LP Gas dispensers and residential/commercial uses. As to the design issues raised in relation to the built form of the development, the Tribunal considers that a number of modifications should be made to the design (see [44] - [45]) which would result in a better built form outcome that is more consistent with the terms of the Masterplan. With the incorporation of the suggested design modifications, the Tribunal is satisfied the proposed development is consistent with orderly and proper planning and the conservation of the amenities of the locality, and warrants approval.

Conditions

As required by the direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers that approval of the application, subject to conditions, is appropriate. A document containing, in essence, 20 conditions was filed by the respondent.
The applicant accepted conditions (i)(a), (iii)(a), (v), (viii), (x)(a)(1) and (x)(b)(3), and provided argument as to why the remaining conditions should not be imposed or alternatively, modified. The respondent, in light of the applicant's arguments, advised the Tribunal that it agreed that condition (vi) could be deleted and condition (x)(a)(2) could be modified as suggested by the applicant, leaving the following conditions to be determined by the Tribunal:
(i)(b)a detailed schedule of external finishes (including materials and colour schemes and details) shall be submitted to and approved by the Town.
(ii)The proposed signage shall:
(a)be subject to a separate Sign Licence application being submitted to and approved by the Town prior to the erection of the signage;
(b)not have flashing or intermittent lighting;
(c)be kept in good state of repair, safe, non-climbable, and free from graffiti for the duration of its display on-site; and
(d)all proposed signage to be contained within the subject site.
(iv)the maximum total gross floor area of the shop component shall be limited to 198 square metres;
(vii)a Demolition Licence shall be obtained from the Town prior to commencement of any demolition works on the site;
(ix)(a)a Construction Management Plan shall be submitted to and approved by the Town, addressing the following issues:
(1)public safety, amenity and site security;
(2)contact details of essential site personnel;
(3)construction operating hours;
(4)noise control and vibration management;
(5)Dilapidation Reports of nearby properties;
(6)air and dust management;
(7)stormwater and sediment control;
(8)soil excavation method (if applicable);
(9)waste management and materials re-use;
(10)traffic and access management;
(11)parking arrangements for contractors and subcontractors;
(12)Consultation Plan with nearby properties; and
(13)any other matters deemed appropriated by the Town.
(ix)(b)A detailed landscape and reticulation plan for the development site and adjoining road verge shall be submitted to the Town's Parks and Property Services for assessment and approval.
For the purposes of this condition, a detailed landscape and irrigation plan shall be drawn to a scale of 1:100 and show the following:
(1)the location and type of existing and proposed trees and plants;
(2)all vegetation including lawns;
(3)areas to be irrigated or reticulated;
(4)proposed watering system to ensure the establishment of species and their survival during the hot and dry months; and
(5)separate soft and hard landscaping plans (indicating details of plant species and materials to be used).
The Council encourages landscaping methods and species selection which do not rely on reticulation.
All such works shall be undertaken prior to the first occupation of the development, and maintained thereafter by the owners(s)/occupier(s);
(xi)(c)An Acoustic Report in accordance with the Town's Policy No 3.5.21 relating to Sound Attenuation shall be prepared and submitted. The recommended measures of the acoustic report shall be implemented and certification from an acoustic consultant that the measures have been undertaken, prior to the first occupation of the development, and the applicant/owners shall submit a further report from an acoustic consultant 6 months from first occupation of the development certifying that the development is continuing to comply with the measures of the subject acoustic report.
(xi)(d)The subject land shall be amalgamated into one lot on Certificate of Title; or alternatively, prior to the issue of a Building Licence[,] the owner(s) shall enter into a legal agreement with and lodge [an] appropriate assurance bond/bank guarantee to the satisfaction of the Town, which is secured by a caveat on the Certificate(s) of Title of the subject land, prepared by the Town's solicitors or other solicitors agreed upon by the Town, undertaking to amalgamate the subject land into one lot within 6 months of the issue of the subject Building Licence. All costs associate[d] with this condition shall be borne by the applicant/owner(s);
(xi)(e)A Refuse Management Plan shall be submitted to and approved by the Town prior to commencement of works. The Plan should include details of refuse bin location, vehicle access and manoeuvring. Revised plans and details shall be submitted demonstrating a bin compound being provided in accordance with the Town's Health Services Specifications;
Commercial:
•1 x mobile garbage bin per 200 square metres of floor space; and
•1 x paper recycle bin per 200 square metres of floor space.
(xi)(f)A revised tanker access proposal including sweep paths and depicting tanker access to and from the site from Vincent Street only. The revised proposal shall be submitted to and approved by the Town.
(x)(b)(1)The applicant/owner shall comply with the comments and conditions of the DoP/WAPC at the applicant(s)'/owner(s)' full expense.
(x)(b)(2)Access at the eastern Vincent Street access point being restricted to 'left in' and 'left out' only.

Proposed condition (i)(b)

The applicant accepted condition (i)(b) subject to an amendment to include provision that if the respondent does not approve the applicant's schedule of external finishes within 14 days of the date the schedule is provided to the respondent, the applicant has liberty to apply to the Tribunal in this present application for approval. This point was also raised in relation to conditions (vii), (ix)(a), (ix)(b) and (ix)(e), should the Tribunal consider that such conditions were appropriate to impose.
The Tribunal's practice is not generally to leave proceedings on foot to enable disputes about the satisfaction of incidental conditions to be brought back to the Tribunal in the proceedings. Under s 29(5)(a) of the State Administrative Tribunal Act 2004 (WA), the Tribunal's decision is regarded as, and gives effect, as the decision of the original decisionmaker. The Tribunal expects that original decisionmakers will act speedily and appropriately in determining these incidental matters. In the event that there is any dispute, a fresh development application can be lodged and a review proceeding brought on a refusal/deemed refusal. If any such application were brought in consequence of unreasonable or delayed conducted on the original decisionmaker's part, the Tribunal would take a dim view and would consider costs consequences.

Proposed condition (ii)

The issue the applicant raised with condition (ii) is the requirement for 'a separate Sign Licence application to be submitted to and approved by the Town prior to the erection of the signage'. The respondent advised the Tribunal that the proposed signage required a Sign Licence to be submitted and approved by the Town's Building Services Department. Presumably, this is a requirement of some other legislative framework and as such, the need to include such a requirement as a condition of planning approval is unnecessary, as approval under planning legislation does not obviate the need to obtain the required approvals. The Tribunal considers that the condition should be amended to delete part (a) of the proposed condition.

Proposed condition (iv)

This condition places a maximum gross floor area on the shop component of 198 square metres. The applicant referred to the plans attached to the witness statement of Mr Bohan, which illustrated an alternate design that could be constructed on the subject land. This design provided for a convenience store of 240 square metres in area and as such the applicant sought to amend the condition to reflect this area. The respondent informed the Tribunal that the condition was based on the plans that are the subject of the application for review and submitted that if the Tribunal was to approve the alternate design, then the condition should be amended to reflect the gross floor alternative design. Leave has not been granted for the alternative design to be substituted as the plans under consideration in the determination of this matter. The Tribunal's understanding of the purpose of the alternate design was to demonstrate that modifications could be made to the existing proposal that would result in a development that was more consistent with the respondent's vision for the locality. The Tribunal does not consider it appropriate to amend the area of the gross floor area of the shop component to reflect the alternative design.

Proposed condition (vii)

With respect to condition (vii) the respondent argued that a Demolition Licence is required to be submitted to and approved by the Town's Building Services Department. It is true that this is a requirement of the Local Government (Miscellaneous Provisions) Act 1960 (WA) and therefore it is unnecessary to impose a condition seeking compliance with other legislation.

Proposed condition (ix)(a)

The applicant argued that this condition is a relevant matter to a building licence and should not be imposed as a condition of planning. No argument was presented for the inclusion of this condition by the respondent, other than to state that it 'is a standard condition of Planning Approval'. This is not a sufficient reason to impose such a condition. It would appear that the matters identified in the proposed condition relate to the management of the site during the construction stage of the development and does not reasonably relate to the planning application.

Proposed condition (ix)(b)

The applicant accepted condition (ix)(b) insofar as the landscaping plan submitted as part of the application did not provide the requisite level of detail required by the respondent. The issue raised by the applicant related to the amount of landscaping required to be undertaken on-site and was concerned that the condition left open the maximum amount of landscaping to be provided onsite. There is no evidence before the Tribunal to suggest that the amount of landscaping proposed to be provided on-site is insufficient and, therefore, if such a condition were imposed, it would relate to the areas identified as landscape areas on the associated plans. As previously stated in Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 (Phil Lukin), '[t]he Tribunal assumes that an original decisionmaker … will properly and reasonably approach its task within the confines of the condition'.

Proposed condition (ix)(c)

Condition (ix)(c) requires an acoustic report to be prepared and submitted to the respondent. The applicant argued that the existing service station/convenience store forms part of the existing amenity of the locality and that the respondent failed to produce any evidence to show that the proposed development will create any more noise than the existing site, whereas Mr Bohan's evidence suggested that the noise level of the site will be reduced as a result of the installation of the new bowsers. The respondent's response to the applicant's argument was that 'the Town's Health Services Officers have advised that an Acoustic Report is required in this instance'.
The activity currently exists and the proposed development represents a replacement of the current activities, albeit in a different arrangement, and there is no evidence before the Tribunal to suggest that the current operations generate adverse noise impacts that require amelioration. Furthermore, the evidence of Mr Bohan's, which was undisputed, indicates that the redevelopment will improve noise levels at the subject site. The Tribunal considers the imposition of this condition to be unreasonable in the circumstances of this case.

Proposed condition (ix)(d)

Condition (ix)(d) requires the amalgamation of the lots into one. The applicant argued that the respondent had not provided any evidence as to why the amalgamation was necessary or desirable and did not consider it to be a relevant consideration with respect to this application. The Tribunal does not agree and considers that such a condition has a proper planning purpose in ensuring that a single development does not extend across lot boundaries so that the development remains as a single entity; fairly and reasonably relates to the development; and is not so unreasonable that no reasonable planning authority could have imposed it.

Proposed condition (ix)(e)

The applicant objected to condition (ix)(e) being imposed, arguing that a service yard area identifying bin locations had been provided as part of this application and could be readily modified to identify the bin types specified by the respondent, and that there had been no evidence adduced that vehicle access and manoeuvring could not be readily accommodated on-site or that there were any health issues in relation to the proposed service yard. The respondent's response was only that such a condition was 'a standard condition of planning approval'. This response is unhelpful and does not assist the Tribunal in determining whether such a condition is a valid condition.
The provision of a rubbish collection/storage area is a relevant planning consideration and in this instance, there is insufficient evidence before the Tribunal to conclude whether or not the location and size of the proposed bin storage area is adequate to cater for the needs of the subject land. The Tribunal, in Phil Lukin, accepted that incidental aspects of a development may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decisionmaker and implementation of the approved plan, detail or specification. The Tribunal considers this to be such an aspect and therefore considers it appropriate to impose a condition requiring the preparation and approval of a Refuse Management Plan for the subject land.

Proposed condition (ix)(f)

The evidence of Mr Veal, in respect to the vehicle sweep paths of the fuel tankers, was that deliveries to the Caltex site can be readily accommodated from the proposed configuration for The Avenue and that a small modification would need to be made to the kerb line to allow for the movement from Leederville Parade into The Avenue. In relation to this aspect, he explained that fuel tankers are not exceptional vehicles (that is, not over-sized) and accordingly, the future design of The Avenue will be required to provide access for such vehicles. No evidence was adduced by the respondent to dispute Mr Veal's evidence and, as such, the Tribunal does consider there to be a need to submit a revised tanker access proposal to the respondent.

Proposed condition (x)(b)(1)

The applicant objected to this condition as it could not agree to comply with comments and conditions (at its full expense) without first knowing what those comments and conditions were, and whether they related to issues that were incidental to the application and should therefore be finally dealt with by the Tribunal as part of this application.
The proposed condition appears to be referring to a letter received from the Department of Planning dated 14 October 2008 which, in essence, indicates that insufficient information has been provided to assess the transport implications of the proposed development. No evidence was adduced by the respondent in relation to this letter or the comments made therein. The condition proposed by the respondent is uncertain and inappropriate. Further, the applicant called evidence from Mr Veal which showed the development was satisfactory in terms of traffic movements.

Proposed condition (x)(b)(2)

The only expert evidence before the Tribunal was that of Mr Veal, who saw no reason to change right-turn movements from the eastern Vincent Street access point. The respondent has not provided any justification for restricting the access at the eastern Vincent Street access point to 'left in' and 'left out'. Based on the evidence, the Tribunal does not consider there to be a reason to impose such a condition.

Orders

For the above reasons, the Tribunal makes the following orders:
1.By Friday, 7 January 2011, the applicant is to file and serve amended plans consistent with [44] - [45] of the Tribunal's reasons dated 30 November 2010 (reasons) and show that no part of the convenience store building and/or fuel tanks are located within the Metropolitan Region Scheme Other Regional Road reservation.
2.By Friday, 14 January 2011, the respondent may file and serve any comments in relation to whether the amended plans are consistent with the Tribunal's reasons.
3.By Friday, 21 January 2011, the applicant may file and serve any comments in reply.
4.At the conclusion of this process, the Tribunal will review the amended plans and if satisfied that they are consistent with its reasons then it will allow the application for review and will grant planning approval to the application, subject to the conditions as agreed by the parties and discussed in the reasons.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER