CAMERA LAND WA PTY LTD and TOWN OF VINCENT
[2007] WASAT 168
•26 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CAMERA LAND WA PTY LTD and TOWN OF VINCENT [2007] WASAT 168
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 4 MAY 2007
DELIVERED : 26 JUNE 2007
FILE NO/S: DR 475 of 2006
BETWEEN: CAMERA LAND WA PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning – Application for retrospective approval – Mobility impaired persons - Eating house – Preservation of amenity - Undue impact on the streetscape – Above roof sign – Wall sign and window sign – Photo café – Precedent
Legislation:
Metropolitan Region Scheme
Planning and Development Act 1995 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)
Town of Vincent Town Planning Scheme No 1, cl 13, cl 15, cl 15(a), cl 16, cl 29, cl 32, cl 38(3), cl 38(5), cl 39, cl 39(1), cl 39(2), Sch 1
Result:
The application for review was upheld subject to conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Town of Vincent
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988; 21 October 1988)
Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
Rajneesh Foundation of Australia v Shire of Manjimup No 2 (1985) 3 SR (WA) 65
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Town of Vincent to refuse an application for retrospective approval for the addition of signage to an existing shop, and a change of use from "shop" to "shop and eating house".
The Tribunal examined the arguments of the parties, the background to the matter, the relevant statutory and policy provisions, details relating to the so‑called "eating house" and matters of disability access, amenity and precedent.
It was determined that the amount of advertising on the front three walls of the existing building was excessive; particularly on the south facing wall to Melrose Street where matters of streetscape and amenity were considered particularly important.
The Tribunal also determined that the photo café was an acceptable land use, and that access to the ground floor, toilet and parking facilities for mobility impaired persons was possible.
The application for review was upheld, subject to conditions.
Introduction
The application for review, dated 18 December 2006, was lodged by Mr Umberto Fiore on behalf of Camera Land WA Pty Ltd (applicant) against a decision of the Town of Vincent (respondent or Town) on 8 December 2006 to refuse an application for retrospective approval for the addition of signage to an existing shop, and a change of use from "shop" to "shop and eating house".
The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
The reasons for refusal were:
"(i)the development will unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality; and
(ii)the non‑compliance with the requirements of the:
(a)Building Code of Australia and the Australian Standard (AS) 1428.1 - Design for Access and Mobility.
(b)standards common to all signs, wall sign and above roof sign of the Town's Policy relating to Signs and Advertising; and
(c)the car parking requirements of the Town's Policy relating to parking and access."
Subject land
The subject land can be described as Lot 1 on Certificate of Title Volume 1311 Folio 42, on Diagram/Plan No 1239. The address is No 201–No 203 Oxford Street, Leederville.
The property is located on the north‑west corner of Oxford Street and Melrose Street and is occupied by a two‑storey building and car park. It operates as the commercial business premises of Camera Land WA Pty Ltd and is adjacent to residential properties in Melrose Street and to the Oxford Spares business premises immediately to the north in Oxford Street.
The legislative framework
The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Commercial" under the Town of Vincent Town Planning Scheme No 1 (scheme or TPS 1).
Of relevance in this matter is the Town of Vincent Planning and Building Policy Manual; particularly the following policies:
(a)Leederville Precinct (Policy No 3.1.3)
(b)Development and Design – Signs and Advertising (Policy No 3.5.2)
(c)Parking and Access (Policy No 3.7.1).
Of importance also are the Building Codes of Australia (BCA) and the Australian Standards (AS) 1428.1 – Design for Access and Mobility (Design Standards).
Respondent's position
The position of the respondent is outlined in a Statement of Issues, Facts and Contentions dated 22 March 2007. The respondent contends:
(a)The variations to the development requirements of the Town's policies relating to "Parking and Access" and "Signs and Advertising" are counter to the overall intention of these policies. The proposal will therefore have an undue impact on the streetscape and the amenity of the surrounding area.
(b)The subject planning application proposes non‑complying public access to the eating house, and a variation to the BCA and the Design Standards would create an undesirable and negative precedent for future development in the general area, and have a negative impact on the Town.
(c)The scale and nature of the development, and variations to the Town's policies relating to signs and advertising, will have an undue impact on the streetscape and the amenity of the immediate and surrounding area.
(d)There is a car parking shortfall of 5.05 car bays.
Applicant's position
The position of the applicant is outlined in a response, dated 29 March 2007, to the respondent's Statement of Issues, Facts and Contentions. The response argues:
(a)The proposal does not impact on the streetscape or the amenity of the area.
(b)The signage is paramount to the business and needs to be conspicuous because the subject land is away from the hub of Leederville.
(c)There is no coffee bar or eating house as no meals are prepared on site. Customers are merely offered refreshments while they wait for their prints to be ready from digital printing kiosks.
(d)The BCA and Design Standards are complied with because customers with mobility impairment can access a digital printing kiosk on the ground floor and can access refreshments from the first floor by requesting same from a staff member.
(e)Other businesses in the area have the same amount of signage, or more excessive signage, as deemed necessary for their own purposes.
(f)The existing parking facilities are adequate for the needs of the business and the new photo café does not create extra traffic. Only existing customers benefit from the café facility.
(g)There is strong customer support for the photo café.
Planning issues
The principal planning issues are:
(a)Does the proposal accord with statutory requirements and the relevant Scheme policies?
(b)Does the existing development, for which retrospective approval is sought, negatively impact on the amenity of the immediate and surrounding area?
Assessment of proposal
Background
In evidence before the Tribunal the applicant advised:
(a)The business has been operating in the Leederville area for more than 20 years.
(b)The business has been operating on the subject land for the last three and a half years.
(c)In June 2006 the ground floor business for the sale of cameras and duty free goods was complemented by the purchase of equipment for the printing of digital pictures. The majority of this new equipment (15 printing machines) was positioned on the first floor for the customers to use for digital printing.
(d)Shortly afterwards, and in response to customer demand, a small coffee bar was established on the first floor.
(e)As a result of a complaint to Council against the existence of the coffee bar the premises were examined by an officer from the Town.
(f)Over a two month period a petition in support of the retention of the coffee bar was compiled. It contained 1315 signatures.
On 18 October 2006 an application for approval to commence development was signed by the applicant for three signs and a so‑called class 4 eating house at an estimated cost of $10 000. The application was lodged with the Town on 26 October 2006.
The application was refused under delegated authority on 8 December 2006.
Statutory and policy provisions
Town Planning Scheme No 1
Under cl 13 of the Scheme (Use of Land in a Scheme Zone) a "shop" and an "eating house" are both permitted in the "Commercial" zone. They each carry a "P" classification in the zone table.
Under cl 15 of the scheme (Unlisted Uses) it states:
"If use of the land for a particular purpose is not specifically mentioned in the Zone Table and cannot reasonably be determined as falling within the interpretation of one of the Use Class categories the Council may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted;
(b)determine that the proposed use may be consistent with the objectives and purposes of the zone and thereafter follow the "SA" procedures of Clause 37 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted."
Clause 29 of the Scheme explains the need for planning approval for advertisements:
"A person shall not begin or continue to display an advertisement, other than an existing or exempted advertisement, without having first applied for and having obtained planning approval under Part 4."
Under Sch 1 (Scheme Interpretations) there are a series of definitions relevant to this matter. These include:
"a.'advertisement' means any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, in the nature of and employed wholly or partly for the purpose of an advertisement, announcement or direction and includes any hoarding or similar structure used or adapted for use, for the display of advertisements and 'advertising' has a correlative meaning. The term includes any airborne device anchored to any land or building and any vehicle or trailer or any other similar object placed or located so as to service the purpose of advertising;
b.'amenity' means all those factors which combine to form the character of the area to residents and passers by and shall include the likely and future amenity;
c.'eating house' means any building or premises used primarily for the purpose of serving meals to the public for gain or reward but does not include a fast food outlet;
d.'retail' means the sale or hire of products, goods or services to the public generally in small quantities and via a shop;
e.'shop' means any building wherein goods are exposed or offered for sale by retail."
The need for planning approval is covered under cl 32 of the Scheme:
"(1)A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by Clause 33, without first having applied for and obtained planning approval."
Under cl 38(3) the Council may refuse or approve an application for development whereas under cl 38(5) it is to have regard to a series of matters including:
" …
b.any relevant planning policy;
…
f.any submission accompanying or related to the application;
g.the orderly and proper planning of the locality;
h.the conservation of the amenities of the locality;
i.the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
Under cl 39 the Council may determine an application for an unlisted use:
"1.Subject to subclause (2), the Council may refuse or approve an application which involves an unlisted use.
2.The Council cannot grant planning approval for a development which involves an unlisted use unless:
(a)the advertising procedure referred to in Clause 37 has been followed; and
(b)it is satisfied, by an absolute majority, that the proposed development is consistent with the matters listed in Clause 38(5)."
It does appear to the Tribunal that there is some inconsistency between the provisions of cl 15(a), where an unlisted use can be permitted without an advertising procedure, and cl 39(1) and cl 39(2), where an advertising procedure is required in all circumstances.
Leederville Precinct (Policy No 3.1.3)
Under cl 3 (Commercial Area) it states:
" …
Priority will be given to ensuring that the impact of any development on surrounding uses is minimised through appropriate site design and layout.
…
Where it is considered that a particular development would have a detrimental impact on the amenity of the surrounding area (mainly adjacent residential development) it is to be subject to the advertising procedure set down in the Town of Vincent Town Planning Scheme No 1 and Town of Vincent Policy Manual."
Under cl 6 (General) it states:
"non‑residential buildings are to display a character and scale which is compatible with adjacent residential development … "
In his evidence, Mr SJ Bain, a qualified town planner for the respondent, advised:
"This particular site adjoins a residential area. It's a residential zone immediately behind and therefore the impact on amenity is acute. It's not as if it's in the middle of a commercial area, but a residential area, and residential areas are particularly sensitive to signage."
In the view of the Tribunal the relationship of a "Commercial" zoned property (subject land) to adjacent residential development in Melrose Street has already been considered as part of the advertising process and finalisation of the Scheme. However, what subsequently occurs on the subject land relative to adjoining land is a valid consideration in terms of the "amenity" provisions of Policy No 3.1.3.
Signs and Advertising (Policy No 3.5.2)
The objective of the policy is:
"To ensure that the display of advertisements on properties does not adversely impact upon the amenity of the surrounding areas while providing appropriate exposure of activities or services."
In cl 1 (Definitions) the definition of "Advertisement" is as outlined in the scheme, but the following additional definitions in Policy No 3.5.2 are relevant:
"a.'Above Roof Sign' means an advertisement sign which protrudes above the normal roofline with little or no relation to the architectural design of the building, but does not include a Created Roof Sign.
b.'Wall Sign' means an advertisement sign which is affixed to the external part of a wall of the building but does not project more than 300 millimetres from the wall and no part of which is above the lowest point of the eaves or ceiling of the building.
c.'Window Sign' means an advertisement sign which is affixed to either the interior or exterior of the glazed area of a window."
Under cl 2(i) (Standards Common to All Signs) all signs are to:
" …
(e)the total signage area is not to exceed 10 per cent of the total area of the building wall in which that signage is located …
…
(g)have a planning approval applied for and obtained prior to the erection of the signs.
(h)not protrude over Council property, including footpaths (unless allowed under a verandah or attached to a fascia) or neighbour's property."
The standards for an "Above Roof Sign" are contained within cl 2(iii) of the Policy. They include:
"(b)pending the formulation of more detailed criteria, an 'Above Roof Sign' … are only permitted where it can be demonstrated that, having regard to the character of the area in which they are to be situated, they do not adversely affect its amenities or those of other areas; and
(c)no 'Above Roof Sign' is to protrude above the highest ridge of the roofline."
The standards for a "Wall Sign" are contained within cl 2(xviii) of the Policy. They include:
"(b)not exceed 10 square metres in area in aggregate on any one wall, unless a sign strategy acceptable to the Town of Vincent for the whole site has been submitted and approved."
The standards for "Window Signs" are contained within cl 2(xix) of the Policy. They include:
"A 'Window Sign' is not to cover more than 50 percent of the glazed area of any one window or exceed 10 square metres in area in aggregate per tenancy on a lot."
A variation of standards is contained within cl 2(xx) that of the policy:
"If it is established to the satisfaction of the Town of Vincent that a particular standard or provision of the policy is unreasonable or undesirable in the particular circumstances of the case, the Town of Vincent may at its discretion vary the standard or provision subject to such conditions as it thinks fit. Applications for correction of standards are to include a sign strategy for the whole of the subject site."
In the witness statement dated 3 April 2007 of Mr Bain he explains in his [26]:
a.Above Roof Sign – this measures 1.8 metre x 1.8 metre (3.24 square metres) and is not an integral part of the design of the building. It was added afterwards and protrudes above the ridge of the roofline. Also, it extends laterally beyond the external walls of the building.
b.Wall 1 ‑ Front – A 16.94 square metre sign on a 60.75 square metre wall. This represents 27.88% of the total wall and exceeds the 10% maximum.
c. Wall 2 ‑ Corner – A 7.02 square metre sign on a 22.81 square metre wall. This represents 30.77% of the total wall and exceeds the 10% maximum.
d. Wall 3 ‑ Side – A 40.19 square metre sign on a 54.12 square metre wall. This represents 74.26% of the total wall and exceeds the 10% maximum.
In his overall assessment Mr Bain concludes that the total signage is 64.15 square metres on walls of 137.68 square metres. This represents 46.59% of the total wall area and exceeds the 10% maximum.
In the applicant's calculations, the results are significantly different, with the percentage of the wall sign area to the area of the wall being 14.38% for Wall 1 – front, 27.02% for Wall 2 – corner, and 40.74% for Wall 3 – side. There was agreement between the parties on the size of the above roof sign at 3.24 square metres.
Clearly, there is a difference in the method of calculation between the parties, but in each case the percentage of the area of the wall sign to the area of the wall exceeds 10%, and therefore exceeds cl 2(i)(e) of the Policy.
Again, based on the photographic evidence before the Tribunal and the calculations of Mr Bain, which the Tribunal prefers to those of Mr Fiori, the area of the wall signs exceed 10 square metres on each wall (with the exception of Wall 2 – corner) and so are contrary to the provisions of cl 2(xviii)(b) of the policy.
Parking and Access (Policy No 3.7.1)
As explained in the Policy Statement:
"On‑site parking is to be provided at a rate that adequately meets the demand generated by a particular use or activity as determined by the Town of Vincent."
Other provisions of the Policy include:
(a)A Land Use Parking Requirement Table which specifies the number of parking spaces for a particular land use.
(b)The application of "adjustment factors" which reduce the number of parking spaces required according to such factors as proximity to public transport facilities.
(c)A cash‑in‑lieu provision where non‑residential developments have a shortfall in parking.
In a letter dated 1 February 2007 the respondent advised the applicant that based on the size of the proposed Eating House at 35 square metres, and taking into account the adjustment factors, there was a shortfall of 5.05 car bays.
An important factor in these calculations is that the respondent has calculated the number of car bays required for an Eating House on the same basis as a Restaurant (one space per 4.5 square metres of public area).
If the calculation had equated an Eating House with a Shop (one space per 15 square metres of gross floor area), then the obligation on the applicant with regard to the parking shortfall would have been considerably lessened.
The matter of amenity
The matter of "amenity" was addressed in Cipriano v City of Perth (Unreported, Appeal No 20 of 1979)
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