CARROODA PTY LTD and CITY OF GOSNELLS
[2021] WASAT 73
•19 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CARROODA PTY LTD and CITY OF GOSNELLS [2021] WASAT 73
MEMBER: MS C BARTON, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 MAY 2021
FILE NO/S: DR 74 of 2020
BETWEEN: CARROODA PTY LTD
First Applicant
SANSOM NOMINEES PTY LTD
Second Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning - Review of refusal to permit digital sign - Application to substitute amended plans - Whether substantially different proposal - Whether remains in substance the same proposal - Tribunal's jurisdiction to allow amended plans - Whether matter different in essence - Leave granted to substitute plans
Legislation:
City of Gosnells Local Planning Scheme No. 6
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 29(1), s 29(9), s 60(2)
Result:
Preliminary issue determined
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | Lavan Legal |
| Second Applicant | : | Lavan Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Town Planning Appeal Tribunal in Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicants in these proceedings are Carrooda Pty Ltd and Sansom Nominees Pty Ltd (applicants). On 17 March 2020, the City of Gosnells (respondent) refused the applicants' development application under the City of Gosnells Local Planning Scheme No. 6 (LPS 6) for a proposed digital 4.45m2 x 18.99m2 LED pylon sign (proposed sign) at 3 Austin Avenue, Maddington (Property).
On 21 April 2020, the applicants commenced proceedings in the Tribunal to review the respondent's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
The applicants seek leave to amend its development application for the proposed sign that is the subject of the review. The respondent contends that the changes to the design elements and location of the sign results in a proposal that is substantially different to that which was the subject of the respondent's decision on 17 March 2020.
This gives rise to a preliminary issue for determination by the Tribunal as to whether the amendment, if made, will constitute a new proposal or whether it remains in substance the same proposal.
The Tribunal made an order on 3 March 2021 that the preliminary issue is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 30 March 2021, the parties filed an agreed statement of facts and written submissions in relation to the preliminary issue.
For the reasons that follow, the Tribunal finds that the amended proposal is substantially the same as that originally proposed and, therefore, the applicants are given leave to amend its application.
The issue for determination
The parties agreed that the preliminary issue for determination by the Tribunal is as follows:
1.Whether the amendment, if made, will constitute a new proposal in that it is a substantially different proposal or whether the proposal as amended remains in substance the same proposal?
The Property
The Property is located at 3 Austin Avenue, Maddington, with a frontage to Albany Highway. It is formally described as Lot 1000 on Diagram 91945, being the whole of the land in Certificate of Title Volume 2092, Folio 890.
The Property is approximately 2.61 hectares in area and is located approximately 2.9 kilometres from the Gosnells Town Centre and approximately 17 kilometres from the Perth CBD.
The Property is zoned 'Light Industry' under LPS 6, and 'Industry' under the Metropolitan Region Scheme. Currently located on the Property is a large 'L' shaped showroom (Bunnings Warehouse), which is orientated to address the street junction of Albany Highway and Austin Avenue. A car park is located forward of the showroom, between the showroom and Albany Highway.
Relevant findings of fact
Certain relevant factual matters were not in dispute between the parties. The Tribunal makes the findings set out in this paragraph in relation to those matters.
1.The development application for the proposed sign that is the subject of the review currently contemplates:
(a)a height of 13.065 metres;
(b)two sign panels (one facing north and the other facing south);
(c)a location for the sign on the Property next to the Albany Highway crossover;
(d)traffic control signs located by Main Roads WA (MRWA) in positions that do not contemplate or take into account the proposed sign as a potential distraction for drivers of vehicles on the MRWA controlled roads in the locality of the proposed sign;
(e)the continuation of the use of existing buildings on the Property which involves no practical conflict with the proposed sign structure.
2.A development application for a 12 unit showroom development on the Property was approved by the respondent on 7 December 2020. The approval includes a showroom with access form the south-west corner of the Property.
3.The applicants have chosen to pursue a one-sided sign facing southbound traffic on Albany Highway.
4.On 9 February 2021, the expert witnesses engaged by the parties in the field of traffic engineering attended a chaired conferral and considered the basis upon which a single-sided sign might satisfy the MRWA Policy & Application Guidelines for Advertising Signs Within and Beyond State Road Reserves (MRWA policy).
5.A joint statement signed by the traffic experts expresses an opinion that (subject to MRWA relocation of traffic control signs) a digital sign at the Property would comply with the MRWA policy if it is:
(a)no more than 12 metres in height;
(b)kept to one sign panel only (facing north); and
(c)outside of the device restriction area.
and if MRWA agrees to relocate any affected traffic control signs.
6.The applicants propose an amended development application as follows:
(a)the sign structure having a maximum height of 12 metres;
(b)one sign panel only (facing north);
(c)the sign in a location near the southernmost corner of the Property, so as to be outside the 'device restriction area';
(d)the sign structure overhanging the entry to the Property granted planning approval for a showroom on 7 December 2020; and
(e)the requirement of MRWA agreement to the relocation of any affected traffic control signs.
The Tribunal's jurisdiction to allow amended plans
When exercising its review jurisdiction, the Tribunal has the same functions and discretions as those exercisable by the original decisionmaker.[1]
[1] SAT Act, s 29(1).
Section 27 of the SAT Act provides that the Tribunal is not confined to matters that were before the original decision-maker but may consider new material whether or not it existed at the time the decision was made.
The review jurisdiction of the Tribunal is limited by s 29(9) of the SAT Act which prevents the Tribunal from dealing with a matter that is different in essence from the matter before the original decision-maker. Section 29(9) of the SAT Act provides:
To avoid any doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
The Western Australian Supreme Court in Pacesetter Homes PtyLtd & Anor v State Planning Commission (1993) 84 LGERA 71 at 85, referred with approval to the decision of the Town Planning Appeal Tribunal in Yaksich v Town Planning Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979), where the Tribunal stated:
In our opinion it would be manifestly inconvenient if an appellant were unable to amend his application or plan in any respect in the course of or for the purposes of an appeal to the Tribunal. The question in any particular case must be whether the amendment if made will constitute a new proposal or whether the proposal as amended remains in substance the same proposal. This is a question of degree. We consider that the amended proposal in this case does not constitute a new proposal.
In Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 at [22], the Tribunal concluded that the words 'different in essence' in s 29(9) of the SAT Act, in the context of applications concerning subdivisions or development, simply restate the position as explained in Pacesetter.
The test identified in Pacesetter is one of degree. If the proposed changes are inconsequential or minor then the proposal remains in substance the same proposal. However, if the substantive effect of the amendment is so sweeping as to effectively convert the proposal into a new proposal then the applicants must start again.[2]
The parties' contentions
[2] See Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71 at [85].
The respondent contends that the changes to the five elements that relate to the design and location of the proposed sign mean that the amended application is substantially different to the proposal that was considered and refused by it on 17 March 2020. The respondent says that the proposal still conflicts with the City of Gosnells Local Planning Policy 4.9 - Signage and Flags and that amenity concerns remain. In its written submissions, the respondent did not elucidate the planning consequences that may arise from the applicants' proposed changes to the design and location of the sign.
The applicants contend that the amended plans contemplate minor modifications to the proposal that do not infringe s 29(9) of the SAT Act. There are four areas of consideration, in terms of the substance of the proposed sign, which the applicants say are relevant to whether the amended plans constitute the same proposal. These are land use, height, location and orientation/structure.
The applicants observe that there is no proposed change to land use because the proposed use is for a digital sign.
The applicants further observe that the proposed reduction in the height of the sign from 13.065 metres to 12 metres is a minor change (being less than 10% of the original proposed height).
In relation to the location of the proposed sign, the applicants acknowledge that it will be erected in a different location on the Property. Notwithstanding this proposed change, the applicants say the sign will remain in a position along the Albany Highway frontage between the road reserve and the main building on the Property in a configuration that is visible to passing motorists.
Finally, the applicants contend that the appearance of the proposed sign to motorists travelling from the north will not change from locations where the advertising remains visible. It is the applicants' position that the removal of the south facing sign will only result in a minor change in a structural sense.
The significance of the proposed changes
The question whether the amended proposal will constitute a new proposal or remains in substance the same proposal, is one of degree. This requires the Tribunal to compare the original and amended plans to evaluate objectively the difference between them and any consequential planning impacts that may arise from the proposed changes.
The proposal in essence involves the erection of a digital sign on the Property. The Tribunal finds that the proposed use of the Property is unaltered by the amended plans because the use will remain the same.
The Tribunal further finds that the proposed reduction in height of the sign by 1.065 metres is not significant having regard to the fact that the amended height of the sign will be lower than its original height by less than 10%.
The amended plans show, and the Tribunal finds, that the area of the proposed sign will be approximately 84.5m2. The Tribunal further finds that the area of the sign will remain the same as that originally proposed. Because the area of the proposed structure will remain the same, the Tribunal accepts the applicants' contention that the appearance of the proposed sign to motorists travelling from the north will not substantially change.
Accordingly, the Tribunal finds that the sign will not appear substantially different for motorists travelling from the north.
The Tribunal further finds that the deletion of the sign panel from the southern face of the sign will not significantly alter the appearance of the proposed structure for motorists travelling from the south because the area of the structure will not change.
The most significant modification to the proposal is the change in its location and the fact that the sign will overhang the entry to the Property granted planning approval for a showroom on 7 December 2020. The amended plans show, and the Tribunal finds, that the sign will be located near the southernmost corner of the Property, approximately 40 to 50 metres from its original position immediately north of the Albany Highway crossover. The Tribunal further finds that the sign will remain in a position along the Albany Highway frontage between the road reserve and the main building on the Property.
Having regard to the expansive area of the sign, which will remain the same, the Tribunal finds that the proposed change in the location of the sign will not substantially alter its appearance to passing motorists or neighbouring properties. The respondent did not refer to any planning consequences from the proposed relocation of the sign (that are different to those that arise from the location of the sign adjacent to the Albany Highway crossover). Consequently, the Tribunal can only infer that there are no additional impacts from the proposed change in location. For these reasons, the Tribunal is satisfied that the erection of the sign in a different location on the Property is inconsequential in the context of the proposal as a whole.
Accordingly, the Tribunal finds that the substantive effect of the proposed changes to the plans are not so sweeping as to convert the proposal into a new proposal.
Conclusion
The Tribunal is satisfied that the proposal remains in essence the same proposal that was before the respondent when it was considered and refused by it on 17 March 2020. Therefore, the Tribunal concludes that the substitution of the amended plans in this proceeding is consistent with s 29(9) of the SAT Act.
The preliminary issue is answered as follows:
The proposal, as amended, does not constitute a new proposal. It remains in substance the same proposal.
Because the Tribunal has found that the amended proposal is not substantially different to that originally proposed, the applicant is given leave to amend the application by substituting plan DA-02 revision A, dated 12 March 2021, as the plan the subject of review.
Orders
The Tribunal orders:
1.The applicant has leave to amend the application by substituting plan DA-02 revision A, 12 March 2021, as the plan the subject of the review.
2.The proceeding is listed for a directions hearing at 9.30 am on 28 May 2020 at 565 Hay Street, Perth, Western Australia to program the matter for hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
19 MAY 2021
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