CAPELIGHT NOMINEES PTY LTD and CITY OF SWAN - [2015] WASAT 85

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CAPELIGHT NOMINEES PTY LTD and CITY OF SWAN [2015] WASAT 85

MEMBER: MR P DE VILLIERS (MEMBER)

HEARD: 22, 23 AND 30 JULY 2015

DELIVERED : 6 AUGUST 2015

PUBLISHED : 11 AUGUST 2015

FILE NO/S: DR 105 of 2015

BETWEEN: CAPELIGHT NOMINEES PTY LTD
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Town planning Development Application Roadhouse Urban Deferred zone General Rural zone Objectives of General Rural zone Building and Development Standards in Rural zone Poultry farm Winery Environmental Protection Authority guidance on separation distances between industrial and sensitive uses Transitional nature of locality Impact of amenity of residential dwellings Impact on streetscape Extension to regional road Access to regional roads Main Roads WA Traffic Engineering Standards for Driveways Parking standards Traffic impacts Restrictive covenant

Legislation:

City of Swan Local Planning Scheme No 17, cl 4.2.23, cl 5.5, cl 10.2, Sch 1

Result:

The application review is dismissed
The decision of the respondent dated 20 May 2015 to refuse the application for a Roadhouse at No 40 (Lot 500) Bennett Street, Caversham is affirmed

Summary of Tribunal's decision:

In November 2014 an application was made to the City of Swan seeking planning approval for the development of a roadhouse at No 40 (Lot 500) Bennett Street, Caversham. The refusal of the proposed development by the City of Swan saw an application to the Tribunal seeking a review of that decision.
The issues were agreed between the parties as follows:
1) Is the proposed development consistent with orderly and proper planning?
2) Will the proposed development adversely affect the existing or future amenity of the locality?

3) Are the number and location of car parking bays adequate?
The Tribunal found that the land use, as an 'A' use in the General Rural zone, and given both the impracticality of a rural pursuit on a lot of this size and the mixed and transitional nature of the locality, the proposed use was not unacceptable in terms of the objectives of the zone, the provisions of the respondent's planning scheme or Council policy.
In regard to traffic and access the Tribunal found that the traffic generated from the development could be accommodated on the surrounding road network and egress to the Lord Street extension was, in the circumstances of this case, warranted.
However, in the absence of a scientific site-specific study, the Tribunal found that the applicant had not satisfied the onus of discharging the prima facie prohibition of the proposed use set out in the Environmental Protection Authority Guidance document on Separation Distances between Industrial and Sensitive Land Uses and for that reason the proposed development did not warrant support.

Category: B

Representation:

Counsel:

Applicant: Mr D Maiorana
Respondent: Mr C Slarke

Solicitors:

Applicant: Harley Dykstra
Respondent: McLeods

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

Miller and Shire of Waroona [2009] WASAT 238
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

[The Tribunal gave oral reasons in this matter on 6 August 2015. Owing to a technical problem the reasons were not audio recorded. These written reasons have been prepared from the notes used by the Tribunal to give its oral reasons].
On 13 November 2014 an application was made to the City of Swan (City, Council, respondent) seeking planning approval for the development of a roadhouse at No 40 (Lot 500) Bennett Street, Caversham (subject site).
The application was advertised to surrounding properties. 48 submissions were received of which 26 objected to the proposal and 22 raised no objection.
The application was considered by the Council at its ordinary meeting on 18 March 2015 where the application was refused for the following reasons:
1.The land is zoned 'Urban Deferred' under the Metropolitan Region Scheme (MRS) with the implication that, once lifted and zoned 'Urban', the land is most likely to be zoned 'Residential' under the City of Swan Local Planning Scheme No 17.
2.A 'roadhouse' is not a use that would be permissible in that zone and the use of the land for this purpose will prejudice the seriously[-]entertained notion for the land to be developed for residential purposes in the near future.
On 1 April 2015 an application was received by the Tribunal seeking a review of that decision. Following mediation the respondent was invited by the Tribunal to reconsider its decision. This was dealt with by the Council at its ordinary meeting on 20 May 2015 where the proposed development was refused for the following reasons:
1.The proximity of the service station shop building and parking area to the residential dwellings on the abutting residential lots to the north is considered to adversely impact on the amenity of those lots by way of odour, noise and light emissions.
2.The roadhouse development will adversely impact on the prevailing rural amenity of rural zoned land that is located within the Swan Valley Planning Act to the south-east of the site.

Site and locality

The subject site comprises a single lot with an area of 4,189m². The lot is triangular in shape with a 94.4 metre frontage to Bennett Street on its western boundary and an eastern boundary of 138.4 metres adjacent to the proposed Lord Street extension. The northern boundary is 68.1 metres in length and abuts two existing residential lots to the north.
Development on the subject site comprises a single residence located broadly centrally on the site with a series of outbuildings between the dwelling and the northern boundary. The site currently contains several mature trees, and a line of street trees within the Bennett Street road reserve lines the western boundary.
The land to the north on both sides of Bennett Street is zoned Residential R20 and has been developed with single dwellings. Opposite the subject site on the western side of Bennett Street the land is zoned General Rural and comprises a single dwelling and undeveloped lot. To the south of these lots is an operating poultry farm. To the east the subject site is bounded by the alignment of the proposed extension to Lord Street. Beyond the road reserve the land is zoned for residential development and further to the south is a winery which falls within the Swan Valley Rural zone.
To the north of the subject site the streetscape comprises a typical residential streetscape. In the immediate area the character changes with mature street trees edging the subject land on the eastern side and on the western side an unused road reserve and an undeveloped block with a single residence set well back on the lot in between. To the south the eastern side of the road comprises a winery, and the western side the poultry farm edged with mesh fencing and shadecloth, and further south towards Benara Road three residential properties.

The proposed development

The proposed development of the subject site for a roadhouse comprises the following components:
•a service station with fuel refilling;
•an incidental shop (convenience store) of 185 m²;
•a 70m² vehicle service area offering greasing, tyre repairs and minor mechanical services;
•car parking, drainage and landscaped areas;
•access and egress to Bennett Street; and
•egress to the proposed extension of Lord Street.
The fuel pump area is located centrally on the site with the tanks located to the immediate south of this area, and the vehicle service area and associated parking towards the southern end of the site. To the north of the fuel pump area is a parking area. On the northern portion of the site the service station and shop building is set back approximately 7.2 metres from the northern boundary, approximately 25 metres from the Bennett Street boundary, and is surrounded by landscaped areas on its western, northern and eastern sides. The fuel pump canopy is located approximately 5 or 6 metres off the Bennett Street boundary while the vehicle service area is located 6.2 metres off the Bennett Street boundary.

Planning framework

The relevant planning framework in this matter comprises relevant State Planning and Development Control policies, Environmental Protection Authority (EPA) guidance, and relevant provisions of both the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) and Council policies.
The subject site is zoned Urban Deferred under the provisions of the MRS.
One of the objectives of State Planning Policy 4.1: State Industrial Buffer Policy is to provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses. The policy generally applies to major infrastructure such as ports, solid waste disposal sites and gas/petroleum pipelines.
In 2005 the EPA released a guidance document for the assessment of environmental factors entitled 'Separation Distances between Industrial and Sensitive Land Uses' which specifically addressed separation distances between industrial and sensitive land uses in order to avoid conflicts between these land uses. The EPA guidance document suggests a separation of 50 metres between service stations (operating during normal hours Monday to Saturday from 0700 1900 hours) and sensitive land uses. For freeway service centres operating 24 hours a day, a 100 metre separation distance is recommended. The document defines separation distance as the shortest distance between the boundary of the area that may potentially be used by an industrial land use and the boundary of the area that may be used by a sensitive land use. The EPA document suggests that a responsible authority wishing to deviate from the advice in the guidance statement would be expected to put a well-researched, robust and clear justification arguing the need for that deviation.
Development Control Policy 5.1: Regional Roads (Vehicular Access) (DCP 5.1) sets out the principles to be applied when considering proposals for vehicle access to or from developments abutting regional roads.
Clause 3.3.2 of DCP 5.1 which deals with development requirements reads as follows:
Where regional roads are constructed or planned to freeway standards, no access to frontage development is permitted. On regional roads not constructed or planned to freeway standards, there is a general presumption on traffic and safety grounds against the creation of new driveways or increased use of existing accesses to these roads. Where alternative access is or could be made available from side or rear streets or from rights of way, no access shall be permitted to the regional road unless special circumstances apply.
'Access' is defined in the DCP 5.1 as follows:
Access means both entry to and exit from either a road or abutting development by a vehicle.
Main Roads WA Road and Traffic Engineering Standards for Driveways provides at clause 3.3.5 the following specific provision for service stations:
Service stations on a corner lot may have one driveway up to 11.0 metre wide to a State road and another to the minor road. Those not on a corner may have two driveways, each up to 11.0 metre wide.
As a general rule, median openings solely to service station driveways shall not be provided.
The subject site is zoned General Rural under the provisions of LPS 17. Clause 4.2.23 of LPS 17 sets out the objectives of the General Rural zone as follows:
(a)facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
(d)ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
Clause 5.5 of LPS 17 provides discretion for the City to vary the site and development standards and requirements under the scheme subject to consultation with any owners or occupiers in the general locality which the Council believes are likely to be affected by such proposed variations.
Clause 10.2 of LPS 17 sets out matters to be considered by the Council in considering an application for planning approval and includes the following:
(a)the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
…
(j)whether there would be a detrimental impact on the streetscape;
(k)the compatibility generally of a use or development with its setting;
…
(o)the preservation of the amenity of the locality;
(p)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(r)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(z)any relevant submissions received on the application;
…
(zb)any other planning consideration the local government considers relevant.
Schedule 1 of LPS 17 defines 'roadhouse' as follows:
roadhouse means land and buildings used for the predominant purpose of a service station but incidentally including a café or restaurant and/or a shop.
The City of Swan Policy Building and Development Standards - Rural Zones prescribes building and development standards for development in a number of zones within the municipality which includes General Rural zones.
This policy, in clause 2.2, requires the total area of buildings to not exceed 10% of the lot area, while Table 1 establishes setback requirements in the General Rural zone of 30 metres for the front and rear setbacks, and 20 metres for side setbacks.
Council Policy on Vehicle Parking Standards sets out in Table 1 land use parking requirements. While this table does not make any specific provision for roadhouses, it established a requirement of one space for every 230m² of gross site area for service stations.

The Issues

The issues were agreed between the parties as follows:
1.Is the proposed development consistent with orderly and proper planning?
2.Will the proposed development adversely affect the existing or future amenity of the locality?
3.Are the number and location of car parking bays adequate?
The Tribunal will deal with each of these matters in turn.

Is the proposed development consistent with orderly and proper planning?

Land Use

The designation of the use the subject of this review as 'roadhouse' and the fact that a 'roadhouse' constitutes a 'D' use in the General Rural zone is agreed between the planning experts.
However, given the current Urban Deferred zoning of the subject site under the MRS, in addressing the question of orderly and proper planning, the planning experts have both assessed the proposed development not only in terms of the current zoning but also in terms of the potential future zoning of the land.
In assessing the proposal against the objectives of the General Rural zone established by LPS 17, Ms Butterworth, the planning expert called by the respondent, raises a number of concerns.
In regard to the 'development of land for a range of productive rural activities', Ms Butterworth argues that a roadhouse is not a rural activity and that the nearby rural activities do not require a roadhouse in order to be productive.
Mr Maiorana, the planning expert called by the applicant, argues that given the lot size of 4,190m², it is not realistic to expect the land to be used for productive agricultural uses. Ms Butterworth acknowledges that the 'area of the lot is insufficient to accommodate a rural pursuit'.
In regard to objective (b) to 'provide for a limited range of compatible support services to meet the needs of the rural community', Ms Butterworth questions whether the roadhouse supports the rural community and submits that there are already a number of service stations in proximity to the subject site which are likely to adequately service its needs in this regard. In her view, the roadhouse is likely to primarily service customers from the residential areas.
Mr Maiorana argues that the roadhouse, in addition to providing a service to the rural community, will also provide a service to the broader surrounding community from a site located in an area transitioning from a rural to an urban character.
In regard to objective (c) which seeks to 'ensure the use and development of land does not prejudice rural amenities' and promotes 'the enhancement of rural character' Ms Butterworth notes that a number of submissions expressed concerns that the proposal is inconsistent with the surrounding semi-rural amenity. She also argues that the proposed development does not comply with the area of buildings, setback, and building form requirements of the Building and Development Standards – Rural Zones Policy of the respondent. In addition, she submits that the proposed signage does not reflect the rural character of the area, and the potential increase in traffic could prejudice the rural amenity of the locality.
Mr Maiorana argues that as a discretionary use, a roadhouse can form part of rural character which comprises many diverse elements, both natural and constructed. This diversity is in his view clearly illustrated in the immediate area of the subject site.
Finally, in regard to objective (d) to 'ensure that development and land management are sustainable with reference to the capability of land and the natural resource values', Ms Butterworth argues that the fact that trees will need to be removed and it would appear that stormwater would be directed into the respondent's stormwater system raises issues as to whether the proposed development would meet this objective for the zone.
Mr Maiorana submits that the development does not rely on land capacity, nor does it significantly impact on the natural resource values of the site.
Given the current Urban Deferred zoning of the subject site under the MRS both planning experts addressed the question of the potential future zoning of the site and the implications that would carry for appropriate future land uses in the locality.
In assessing the proposed development in terms of the potential future zoning of the land the primary constraint on the rezoning of the land to Urban under the MRS is the continued operation of the poultry farm to the southwest of the subject site. The likelihood of the poultry farm ceasing operations is not known.
Ms Butterworth considers it likely that 'the lots would ultimately be rezoned to Residential or Residential Development or a similar zoning once the poultry farm ceases operation'. She notes that a 'Roadhouse' is a prohibited land use in every zone other than the General Rural zone or the Swan Valley Rural zone under LPS 17 and that, in her view, an approval of the current proposal 'will most likely be inconsistent with a future Urban zoning'.
Mr Maiorana argues that it is not inevitable that the Urban Deferred precinct west of the Lord Street extension will necessarily be transferred to Urban, and he submits that the subject lot is, in his view, not inherently suitable for residential use. This view is based on the fact that the subject lot falls within the buffer zones of both the existing vineyard to the southwest and the poultry farm to the south west. The Transition Lot Management Plan for lots within 150 metres of the existing viticultural operations in the Caversham Local Structure Plan have special requirements addressing noise and spray drift and lots within 500 metres of Rural zoned land require notification on their titles.

In addition, the future extension of Lord Street will impact on the suitability of the site for residential use, and many existing residential lots in the locality have a Memorial on their titles which reads as follows:
The Lord Street deviation 'other regional road' reserve exists to the east of this lot and this lot may be affected in the future by noise associated with the Lord Street deviation.
Mr Maiorana concludes that a roadhouse in this context would constitute a suitable transitional use between existing agricultural uses and residential uses.
The planning experts agreed that in some circumstances not all of the objectives for the General Rural zone would be applicable in assessing an application. The respondent also conceded that the 'transitional zoning' of the subject land would diminish to some degree the weight to be given to the objectives of the General Rural zone.
While questioning the relevance of the concept of a 'transitional zone', the Tribunal accepts the evidence of the expert planners that not all of the objectives need to be applied in every case, and that the transitional nature of the locality, and the fact that the subject lot is a transitional lot between different land uses, does diminish to some extent the weight to be given to the objectives of the zone.
The Tribunal finds that the land use, as an 'A' use in the General Rural zone and, given both the impracticality of a rural pursuit on a lot of this size and the mixed and transitional nature of the locality, the proposed use is not unacceptable in terms of the objectives of the zone, the provisions of cl 10.2 of LPS 17 or Council policy.
The respondent has raised concerns over its aspirations for a future Residential zoning under the Scheme following the lifting of the Urban Deferred zoning under the MRS. Given the ongoing constraints of the existing poultry farm - and no evidence was provided that this operation would cease in the short to medium term - and the fact that the aspiration for a future residential use has no standing in terms of a seriously considered planning proposal the Tribunal rejects the view that this aspiration can be determinative in the circumstance of the current matter. Accepting such a view runs the risk of sterilising the subject site for some considerable period of time.

Traffic and access

Mr Bordbar, the traffic expert called by the applicant, prepared a transport assessment of the proposed development which formed part of the application provided to the respondent.
This report suggests that the level of traffic increase on Bennett Street as a result of the proposed development varies between 11% and 16%. The report also notes that the longer term plans for the area would involve a new Tintersection between Bennett Street and the future Lord Street extension, and argues the future exit only crossover for the roadhouse onto Lord Street will result in improved traffic operations at the future intersection of Bennett Street/Lord Street.
The report concluded that 'the traffic from this development can be accommodated by the surrounding road network without impacting on traffic operations and safety'.
Ms Butterworth however submitted that approval of the development would be contrary to the provisions of DCP 5.1 which, at clause 3.3.2, creates a general presumption against the creation of new driveways onto regional roads. In addition, she drew attention to a subdivision condition for the subject site which she asserts was intended to prohibit access to Lord Street.
The relevant condition required a restrictive covenant to be placed on the title of Lot 400 specifying the following:
No vehicular access is permitted from Lord Street[.]
While Ms Butterworth concedes that a literal reading of the restrictive covenant would not preclude egress from the subject land onto Lord Street her view is that the condition is intended to prevent traffic passing to or from the regional road. The respondent also provided correspondence from an officer of the Department of Planning in regard to the matter before the Tribunal indicating that 'the Department would not be supportive of any vehicle access, whether ingress or egress, between the subject lot and Lord Street'.
On the question of access/egress from Lord Street it was Mr Bordbar's evidence that Main Roads WA Driveways Policy Revision 4A (13 May 2015) in clause 3.3.5 provides specific provisions for service stations as follows:
Service stations on a corner lot may have one driveway up to 11.0m wide to a State road and another to the minor road ….
The evidence of Mr Bordbar was that the traffic impacts of the proposed development were acceptable. The respondent did not call a traffic expert to challenge the opinions of Mr Bordbar.
Mr Bordbar conceded that on traffic grounds the roadhouse could potentially operate without egress to Lord Street. However, it was his evidence that this egress was preferable in terms of the ease of access and egress for fuel tankers and the reduction of potential conflict points of vehicular movement within the site. More importantly he argued that the inclusion of egress onto Lord Street would improve traffic operations at the future intersection of Bennett Street and Lord Street.
Moreover, Mr Boardbar advised that the Main RoadsWA Guide to Road Design: Driveways was regularly applied to the development of new service stations in the metropolitan area.
While clause 3.3.2 of DCP 5.1 seeks to limit access to regional roads, the objective of the policy 'to provide road networks, within a clear road hierarchy, which are permeable and which offer all road users safe, convenient and legible access' and the special circumstances which in this case will improve traffic operations on the regional road the provision of egress onto Lord Street warrants support. In this context the Tribunal accepts the submissions of the traffic expert.
In regard to the restrictive covenant it is not appropriate for the Tribunal to seek to remedy perceived errors in the legal instruments of third parties, particularly where they involve restrictive covenants.

Will the proposed development adversely affect the existing or future amenity of the locality?

Separation distances

Both the planning experts addressed the provisions of the EPA guidance docu²ent on Separation Distances between Industrial and Sensitive Land Uses.
Ms Butterworth concluded that as the operating hours of the proposed roadhouse would extend beyond 'normal hours', it would be appropriate to apply a generic buffer of between 50 and 100 metres. She also stressed that the EPA guidance document recommends that where a separation distance does not meet the generic guidelines a scientific study based on sitespecific and industryspecific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts.
Ms Butterworth submitted that in the proposed development the closest fuel pump would be 40 metres from the northern boundary, and the underground tanks would be 53 metres and the LPG tank 61 metres from the same boundary. She argued however that buffer distances are more appropriately measured from the boundary and not from a building.
Mr Maiorana submits that in his opinion the separation distance between the fuel pump and the vehicle service areas and dwellings to the north, combined with the proposed landscaping and screening measures, satisfy the intent of the EPA guidance statement.
The planning experts agree that the fuel bowsers are within 50 metres of the northern boundary of the subject site. This does not comply with the EPA guidance document.
In Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 the applicant's town planning expert dismissed the EPA guidance on the basis that it 'is only relevant if there is to be any detrimental offsite impacts'. The Tribunal did not agree with this view and at [57] held as follows:
… it is plain that the EPA Guidance contemplates that a meaningful assessment of whether a concrete batching plant will have any detrimental offsite impacts cannot be made in the absence of a scientific site specific Study unless the generic separation distance identified in Appendix 1 is exceeded. The Tribunal considers that, if the application were capable of approval in the exercise of discretion, it should be refused in the absence of the study contemplated by the EPA Guidance.
While the Tribunal accepts that the scale and nature of the proposal in that matter are very different from those in the current review, a roadhouse, or 'service station' in the terminology of the EPA Guidance document, clearly falls within the ambit of that advice and the change of scale or nature would not warrant departure from the underlying principle.
In Miller and Shire of Waroona [2009] WASAT 238, the Tribunal granted conditional planning approval for four years to a dog breeding operation on the basis that the current zoning permitted the activity and, relevantly, that the evidence related to odour and to noise indicated minimal impact on existing neighbouring properties.
However, at [34], the Tribunal observed as follows:
… the EPA recommended buffer is always to be considered as guidance only, even though significant weight ought to be attached to it. I think that, in the context of this review - and it must always be applied in the context of a particular review and a particular set of facts - it is a starting point that imposes upon the applicant a practical onus of discharging a prima facie prohibition on her proposed development.
While Mr Maiorana provided evidence of many existing service stations in the metropolitan region in close proximity to residential uses, evidence was provided that, with one exception, their establishment predated the application of Separation Distances by the EPA. He also argued that the proposals to mediate any potential impacts were, in his view, adequate to address any unacceptable adverse impacts.
The Tribunal found however that there was some uncertainty in terms of the precise proposals to mediate particularly noise impacts.
More importantly, in the absence of a scientific sitespecific study, the applicant has not satisfied the onus of discharging a prima facie prohibition on the proposed development and for this reason the application does not warrant support.

Visual amenity

In regard to potential visual amenity impacts Ms Butterworth argues that the restricted setbacks of the proposed roadhouse, the illuminated fuel canopy and the illuminated pylon sign would adversely affect the visual amenity of the locality.
Mr Maiorana submits that the locality already comprises a mix of rural and residential uses, that the poultry farm does not have high visual amenity or streetscape value, and that the siting of service stations adjacent to residential dwellings is commonplace within the Perth Metropolitan Region.
In contrast, Ms Butterworth argues that recent conventional planning philosophy is that service stations should be located within shopping centre sites or in other locations separate from residential dwellings.
Ms Butterworth also raises concerns over the fact that the proposed development does not comply with the building footprint restriction or the setbacks of the respondent's policy for buildings in rural zones. Mr Maiorana asserts that in terms of scale, height and building bulk, the proposed development will not conflict with the reasonable expectations of the surrounding residential and rural areas.
The Tribunal is of the view that the rural character of the locality has already been, and will continue to be, eroded. This is evidenced by the recent construction of the pump station on the eastern side of Bennett Street and the impending construction of Stage 2 of the Lord Street extension.
Given the transitory and varied nature of the locality, the fact that the proposed buildings and structures will be shielded from Bennett Street by the existing street trees (a number of which will remain), and the extensive landscaping on the northern portion of the site, the Tribunal finds that the proposed development would not have unacceptable impacts on the visual amenity of the locality.

Traffic impacts

In addressing the potential amenity impacts of traffic movements associated with the proposed roadhouse Ms Butterworth argues that the development could potentially generate an increase of up to 30% additional daily trips on Bennett Street relative to 2009.
The traffic assessment for the development prepared by Transcore in November 2014, however, suggests the level of traffic increase on Bennett Street would be between 11% and 16%. In crossexamination, Mr Bordbar conceded that due to a technical error, these figures would increase marginally. However, prior to the construction of the extension of Lord Street, scheduled in 2017, traffic flows on Bennett Street south of the proposed roadhouse are projected to increase from 4,250vpd (Feb 2014) to 5,840vpd, and then decrease to 2,460vpd following the completion of the Lord Street extension.
Traffic movement on Bennett Street has changed, and will continue to change due to changes in the broader road network in the area. The recent establishment of the link between Suffolk Street and Patricia Street to the north has increased traffic flows on Bennett Street. The construction of Stage 1 of the Lord Street extension (that is, south as far as Suffolk Street) will further increase traffic on Bennett Street. However, following the construction of Stage 2 of Lord Street (south to Benara Road) the traffic on Bennett Street will see a substantive reduction. In this context the Tribunal finds that the potential amenity impacts of traffic from the proposed development, particularly as the majority of that traffic will impact on the restricted area between the roundabout and the proposed crossovers to the subject site, are acceptable.

General amenity

Schedule 1 of LPS 17 defines 'amenity' as follows:
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
In the context of the current review, the Tribunal takes the view that 'future amenity' should be interpreted in the context of the current zoning and would not include the future aspirations of the respondent for a Residential zoning designation in the locality once the land is rezoned to Urban under the MRS. This aspiration clearly does not constitute a seriouslyconsidered planning proposal.

Are the number and location of car parking bays adequate?

Mr Maiorana, submitted for the applicant that as the parking policy did not make provision for a roadhouse use, it would be appropriate to apply the standards for a service station. These require one parking space per 230m² of gross site area. The planning experts agree that applying this standard generates a requirement for 18 car parking bays.
Mr Maiorana submits that 22 car parking bays have been provided. Ms Butterworth, submitted for the respondent 16 car parking bays are provided on site.
The car parking provision in front of the service station and shop comprises 11 standard car bays, one disabled bay and one bay associated with the air pump.
The car parking at the southern end of the site to service the vehicle service area comprises three bays.
The difference between the planning experts is that Mr Maiorana has included six bays at the fuel bowser locations in his calculations.
Ms Butterworth argues that this shortfall is of concern, and more particularly, that the limited provision of car parking bays in the area of the vehicle service area is not reflective of the potential needs on the site.
At the hearing, it was agreed that should the review be allowed, a condition requiring a further two car parking bays to be provided in the area of the service centre could be attached to any approval.
The car parking requirements in the Parking Policy of the respondent are somewhat atypical. However, LPS 17 defines 'carpark' as follows:
carpark means premises used primarily for parking vehicles whether open to the public or not but does not include any part of a public road used for parking or for a taxi rank, or any premises in which cars are displayed for sale[.]
In this context, the Tribunal does not believe it is appropriate to differentiate between parking to make a purchase at the shop or parking to obtain fuel, and therefore finds, while the two additional car parking bays will address a concern of the respondent, the current proposal complies with the relevant provisions of the Scheme.

Orders

For the reasons set out above, the Tribunal makes the following orders:
1.The application review is dismissed.
2.The decision of the respondent dated 20 May 2015 to refuse the application for a Roadhouse at No 40 (Lot 500) Bennett Street, Caversham is affirmed.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, MEMBER