CASTELLA PTY LTD AND QUEBEC NOMINEES PTY LTD and CITY OF CANNING
[2012] WASAT 47
•13 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CASTELLA PTY LTD AND QUEBEC NOMINEES PTY LTD and CITY OF CANNING [2012] WASAT 47
MEMBER: MS R MOORE (MEMBER)
HEARD: 15 DECEMBER 2011
DELIVERED : 13 MARCH 2012
FILE NO/S: DR 299 of 2011
BETWEEN: CASTELLA PTY LTD AND QUEBEC NOMINEES PTY LTD
Applicants
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning – Development application - Two storey office development - Refusal - Strategic planning framework including Directions 2031 and Beyond - Metropolitan Planning Beyond the Horizon and State Planning Policy 4.2 - Activity Centres for Perth and Peel - Whether the statutory planning framework including City of Canning Town Planning Scheme No 40 and the Canning Regional Centre Planning Policies represent the interests of orderly and proper planning - Whether the proposal should be set back a further distance to provide for future development options
Legislation:
City of Canning Town Planning Scheme No 40, cl 2.3.6.2, cl 2.3.8, cl 2.3.8.1, cl 2.3.8.2, cl 2.3.8.3, cl 4.3.1, cl 4.4, cl 4.5, cl 4.6, Pt III, Pt IV, Table 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review allowed
Development approval granted with conditions
Category: B
Representation:
Counsel:
Applicants: Mr M Hotchkin
Respondent: Mr D McLeod
Solicitors:
Applicants: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application for a two storey office complex with associated car parking at No 16 (Lot 78) and No 18 (Lot 79) Cecil Avenue, Cannington and No 19 (Lot 107) Pattie Street, Cannington.
The site is situated directly opposite Carousel Shopping Centre on Cecil Avenue and is currently vacant. The proposed development will have a 15 metre setback from Cecil Avenue while the existing Commonwealth Bank building immediately adjacent is set back approximately 18 metres.
It was agreed by the parties' planning experts that the proposed development was generally consistent with the provisions of the current City of Canning Town Planning Scheme No 40 and the Canning City Centre Planning Policies.
Notwithstanding this, it was the City of Canning's position that the proposal was not in keeping with the future strategic direction of the Canning Regional Centre as it did not present appropriately to Cecil Avenue in terms of setback, built form, and intensity of development. The City submitted that this site, by virtue of its size and position on Cecil Avenue, was a key part of the City's future regeneration strategy, and that approval of the proposed development would prejudice the implementation of this future strategy.
The City argued that the City of Canning Town Planning Scheme No 40 and the existing planning policies could no longer be relied upon as representing the interests of orderly and proper planning, particularly having regard to Directions 2031 and Beyond Metropolitan Planning Beyond the Horizon and State Planning Policy 4.2 Activity Centres for Perth and Peel.
The Tribunal found that the age of the existing City of Canning Town Planning Scheme No 40 and Canning City Centre Planning Policies, and the significance of the site in terms of size and location were not reason enough to disregard them.
The Tribunal noted that Directions 2031 and Beyond Metropolitan Planning Beyond the Horizon and State Planning Policy 4.2 Activity Centres for Perth and Peel are both high level strategic documents within the existing state planning framework and contain broad strategic objectives, principles and provisions not necessarily in conflict with the current scheme and policies.
With regard to the City's future regeneration strategy, the City did not argue that this strategy was a seriously entertained planning proposal but did argue that considerable financial and personnel commitments had been made in order to initiate it, and that it was being prepared in accordance with the aims, objectives and principles of Directions 2031 and Beyond Metropolitan Planning Beyond the Horizon and State Planning Policy 4.2 Activity Centres for Perth and Peel.
The Tribunal found that as the proposed regeneration strategy was still in its preliminary stages and that any redevelopment of the Carousel Shopping Centre site was uncertain, options for development fronting Cecil Avenue, including a nil setback, possible road widening and a mixed land use were currently aspirational in nature.
The Tribunal therefore allowed the application for review, set aside the City's decision to refuse the application and granted development approval with conditions.
Introduction
These proceedings involve an application brought by Castella Pty Ltd and Quebec Nominees Pty Ltd (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision of the City of Canning (respondent or City) made on 9 August 2011 to refuse development approval for a two storey office at No 16 (Lot 78) and No 18 (Lot 79) Cecil Avenue and No 19 (Lot 107) Pattie Street, Cannington (site).
The applicants and the respondent were represented by Mr Michael Hotchkin from Hotchkin Hanley and Mr Denis McLeod from McLeods, respectively.
The Tribunal had the benefit of a view of the site during the hearing on 15 December 2011 as well as evidence from the following four planning experts:
•Mr Stephen Geoffrey Allerding, Director of Allerding & Associates, town planning consultancy, appeared on behalf of the applicant.
•Mr Gregory Richard Davis, Director of Taktics4, town planning consultancy, appeared on behalf of the respondent.
•Dr Micheal John Mouritz, Executive City Futures at the City of Canning, appeared on behalf of the respondent.
•Mr Cornelius Johannes Claassen Verwey, Principal of Urbanism, urban design consultancy, appeared on behalf of the respondent.
The City's decision
The City considered the application for an office development on the site at its meeting on 9 August 2011 and resolved to refuse it for the following reasons:
(i)The proposed development is not in keeping with the strategic direction of the Canning Regional Centre by virtue of the proposed design and lack of opportunity to provide a desired outcome resulting from the proposed front setback to Cecil Avenue.
(ii)The proposed development constitutes an underdevelopment of the site which is not in keeping with the density of the development envisaged in the Canning Regional Centre.
(iii)The proposed development is not in the interest of orderly and proper planning as it does not accord with the objectives of the Canning Regional Centre.
Site and locality
The site is located approximately 1 kilometre from Cannington train station, 250 metres from Albany Highway and directly opposite Carousel Shopping Centre. Lots 78 and 79 have a frontage to Cecil Avenue and Lot 107 has a frontage to Pattie Street.
The site has a total area of 3,557 square metres and is currently vacant. There is an existing Commonwealth Bank building on the corner of Cecil Avenue and Pattie Street which is set back approximately 19 metres (as measured from the site plan) from Cecil Avenue.
Proposal
The proposed two storey office development consists of 25 office units with a gross floor area of 2,308 square metres and 77 car parking bays. The proposal will have a 15 metre setback to Cecil Avenue and a 3 metre setback to Pattie Street and access via a right of way to the rear of the lots fronting Cecil Avenue.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme and City Centre under the City of Canning Town Planning Scheme No 40 (TPS 40).
The zoning table (Table 3) in TPS 40 lists Office as an 'AA' use in the City Centre zone which 'means that the use is not permitted unless approval is granted by the Council'. Clause 2.3.6.2 of TPS 40 states that in relation to 'AA' uses, the Council shall have regard to the provisions of cl 2.3.8 when exercising its discretion.
Clause 2.3.8 of TPS 40 contains matters to be considered by the City when exercising discretion and specifically, in cl 2.3.8.1, matters that the City shall have due regard to when considering an application for development as follows:
(a)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b)any relevant submissions by the applicant; and
(c)any planning policy adopted in accordance with Clause 2.7.12.
Clause 2.3.8.2 of TPS 40 contains the matters that the City may have due regard to and includes the following:
(a)any policy adopted by the Council but not published or otherwise made available to the public by means additional to its inclusion in the Council's Minutes, prior to the receipt by the Council of the application under consideration;
(b)any policy of the Commission or its predecessors or successors or any planning policy adopted by the Government of the State of Western Australia;
(c)any relevant proposed new town planning scheme of the Council or amendment or proposed Metropolitan Region Scheme Amendment insofar as they can be regarded as seriously entertained planning proposals;
(d)the comments or wishes of any public or municipal authority;
(e)the comments or wishes of any objectors to or supporters of the application;
(f)any previous decision made by the Council in circumstances which are sufficiently similar for the previous decision to be relevant as a precedent, provided that the Council shall not be bound by such precedent; and
(g)any other matter which in the opinion of the Council is relevant.
In addition, cl 2.3.8.3 of TPS 40 contains matters that the City shall have due regard to when considering 'AA' use applications:
(a)the nature of the proposed use and its relationship to the use of other land within the locality;
(b)the size, shape and character of the parcel of land to which the application relates and the nature and siting of any proposed building, the view from the building and any possible interruption of the existing view from other buildings or land in the locality;
(c)the nature of the roads giving access to the subject land;
(d)the parking facilities available or proposed and the likely requirements for parking, arising from the proposed development;
(e)any relevant submissions received by the Council;
(f)the provisions of the Albany Highway Policy Plan (draft or otherwise) in connection with any development fronting or in the near vicinity of Albany Highway; and
(g)such other matters as the Council considers relevant, whether of the same nature as the foregoing or otherwise.
Part III of TPS 40 contains general building and development standards and general offstreet parking requirements, while Pt IV of TPS 40 contains provisions specific to land within the City Centre zone with a general objective:
To encourage the development of the Canning City Centre as a major source of employment and a vibrant centre for the community incorporating a wide range of residential, retail, recreational, community and civic facilities.
Clause 4.3.1 of TPS 40 states that the purpose and intent of the City Centre zone is:
To provide for a range of retail, commercial, institutional and residential activities within the area designated as the Canning City Centre, generally in accordance with the proposals contained in the Canning Regional Centre Structure Plan.
Clause 4.4 of TPS 40 refers to specific policies which control development in the Canning City Centre and states that development shall be generally in accordance with the Canning Regional Centre Structure Plan. These policies are the following:
Canning Regional Centre Planning Policies
•PART 1 – Canning Regional Centre Structure Plan
•PART 2 – Canning Regional Centre Indicative Development Plan
•PART 3 – Canning Regional Centre General Policies
•PART 4 – Canning Regional Centre Precinct Policies.
Clause 4.5 of TPS 40 sets out the development standards for the Canning City Centre and requires a 15 metre setback to a front boundary and a 3 metre setback to a secondary street. Clause 4.6 of TPS 40 enables the City to vary a requirement or standard if it is satisfied that it is unreasonable or undesirable.
Two strategic planning documents relevant to these proceedings are:
•Directions 2031 and Beyond Metropolitan Planning Beyond the Horizon (Directions 2031); and
•State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2).
The issues
The respondent prepared an amended statement of issues, facts and contentions which included the following five issues it said arise for determination in this matter:
1.1Whether the Tribunal, in determining the application under review, should have regard to the fact that the City of Canning Town Planning Scheme No. 40 (TPS 40) and the Canning Regional Centre Planning Policies, date back to the early 1990s, and, having regard to Directions 2031 and SPP 4.2, can no longer be relied upon as representing the interests of orderly and proper planning for the Canning City Centre.
1.2Whether it is consistent with orderly and proper planning for Directions 2031, SPP 4.2 and the initiative involved in the City Centre Regeneration Strategy (including a draft Local Planning Policy: Urban Design Policy) to be considered in the determination of the application under review.
1.3Whether it is appropriate in determining the application under review for the options for development fronting Cecil Avenue under consideration in the City Centre Regeneration strategy to be considered to the point of refusing the application.
1.4Whether it is reasonable in the circumstances to require that development fronting Cecil Avenue on the review site be further set back by approximately 5m so as to preserve realistic options for an appropriate development at the Cecil Avenue frontage, in addition to the proposed development under review.
1.5Whether, in all of the circumstances, approval of the development under review would be consistent with orderly and proper planning.
The applicant submitted that the principal issue to be determined by the Tribunal is:
… whether an application for approval for a proposed development that otherwise complies with TPS 40 and the Canning Regional Centre Planning Policies (Applicable Planning Framework) ought to be refused solely on the basis of its alleged noncompliance with the (yet to be formulated) 'strategic direction' and 'objectives' of the Canning Regional Centre.
Although they overlap in many respects, the Tribunal has addressed the respondent's five issues for determination as follows.
Issue 1: Does the fact that TPS 40 and the Canning Regional Centre Policies date back to the early 1990s and, having regard to Directions 2031 and SPP 4.2, mean that they can no longer be relied upon as representing the interests of orderly and proper planning for the Canning City Centre?
It was Mr Hotchkin's contention that the proposed development complies with TPS 40 and the Canning Regional Centre Policies. In fact, it was agreed by the parties' expert witnesses that the application has been made in a manner generally consistent with the provisions of TPS 40 and the Canning Regional Centre Planning Policies.
With regard to the Canning Regional Centre Policies, the site is located in Precinct 9 Leila, and the Precinct Policy contains the following provisions:
INTENDED FUTURE
Because of its proximity to the Carousel shopping area and frontage to Albany Highway this precinct is ideally placed for offices, showrooms, service industry and medium density housing.
POLICIES
Retain office and showroom uses on Albany Highway, avoiding direct [h]ighway access where possible.
Encourage development of office, showroom and service industries on land fronting Cecil Avenue. Encourage use of the rear right of way for access to these, and rights of carriageway across the front of properties, to reduce direct access from Cecil Avenue.
Encourage development of a mix of medium density housing (and/or commercial) on the remainder of the land, with a two storey height limit.
Although the proposal satisfies this policy, it was Mr McLeod's contention that the proposal was not in keeping with the future strategic direction of the Canning Regional Centre as it did not present appropriately to Cecil Avenue in terms of setback, built form, and intensity of development. Mr McLeod submitted that this site, by virtue of its size and position on Cecil Avenue, was a key part of the City's future regeneration strategy and that approval of the proposed development would prejudice the implementation of this future strategy.
Mr McLeod argued that TPS 40 and the existing planning policies could no longer be relied upon as representing the interests of orderly and proper planning, particularly having regard to Directions 2031 and SPP 4.2. He contended that these planning documents, in particular the Canning Regional Structure Plan, were 'exhausted' for planning purposes because of their age and inconsistencies with the objectives, principles and provisions of Directions 2031 and SPP 4.2.
The Tribunal considers that the age of TPS 40 and the policies are not reason enough to depart from them. TPS 40 was gazetted in 1994 and has had numerous amendments since this date. The Canning Regional Centre Planning Policy was prepared in 1991, updated in 1994 and adopted by the City in 1995.
With regard to Directions 2031 and SPP 4.2, they are both high level planning documents within the existing state planning policy framework. Directions 2031 is a high level spatial framework and strategic plan intended to 'guide[
s] planning policy to accommodate and manage population growth within Perth and Peel to 2031 and beyond' and SPP 4.2 was prepared 'to guide the preparation and review of local planning strategies, schemes and structure plans; and development control'.According to Directions 2031, Cannington, as a strategic metropolitan centre, is expected to be a multipurpose centre that provides a mix of retail, office, community, entertainment, residential and employment activities and to be well serviced by high frequency public transport.
Directions 2031 also states that a metropolitan subregional strategy is to be prepared which will help inform local planning strategies and consequently local planning schemes and local structure plans, precinct plans and activity centre plans.
SPP 4.2 is part of the regional planning framework and is intended to provide the strategic context for statutory region and local planning schemes.
Local planning strategies interpret State planning policies at the local level and provide the rationale for the zones, reservations and planning controls in the local planning scheme. Local planning schemes provide the statutory mechanisms to implement local planning strategies through zonings, reservations, structure plans, detailed area plans and development control.
Mr McLeod argued that as an identified strategic metropolitan centre, Cannington was required to satisfy various objectives, principles and provisions in both of these documents. It was Dr Mouritz's evidence that while the provision of Offices is complementary to the objectives of SPP 4.2, the proposal does not address other 'equally significant' objectives such as sufficient development intensity, provision of a more 'pedestrian' environment and the creation of 'legible street network and quality public spaces'.
Mr Allerding gave evidence that the proposal was consistent with the objectives of Directions 2031 and SPP 4.2 in terms of the promotion of employment opportunities and the encouragement of diverse land uses. It was his opinion that these broad level documents establish the objectives and principles to be articulated by local government through detailed standards and requirements in the local planning framework, and as such 'are not of direct relevance or application to the consideration of the proposed development or planning applications in general'.
The Tribunal agrees with Mr Allerding in that these strategic documents contain broad strategic objectives, principles and provisions which would not be expected to be applied to each individual development but to entire areas, and in this case, the Cannington strategic metropolitan centre. The Tribunal notes that the proposal is not necessarily contrary to the aims and objectives of these strategic documents, nor is TPS 40 and the existing Canning Regional Centre Policies.
For these reasons the Tribunal finds that it is in the interests of orderly and proper planning that the statutory planning documents, TPS 40 and the Canning Regional Centre Policies continue to be relied upon in the determination of this matter.
Issue 2: Is it consistent with orderly and proper planning for Directions 2031, SPP 4.2 and the initiative involved in the City Centre Regeneration Strategy, including a draft Local Planning Policy: Urban Design Policy (Urban Design Policy), to be considered in the determination of the application under review?
Mr McLeod submitted that the City had made considerable financial and personnel commitments in order to make positive changes in the city centre through a Canning City Centre Regeneration Strategy. He did not argue that this strategy was a seriously entertained planning proposal but that it was being prepared in accordance with the aims, objectives and principles of both Directions 2031 and SPP 4.2.
The respondent's planning experts and the Mayor, Mr Delle Donne, gave evidence that a number of studies had been commissioned and completed illustrating the intent of the City in regards to the regeneration of the Canning City Centre. These studies included an urban context analysis, a land use performance study and a perception survey.
The Canning City Centre Regeneration Strategy itself has not been finalised but the Tribunal was provided with a copy of a PowerPoint presentation entitled 'Canning City Centre Urban Regeneration' which was presented to the City Council on 8 December 2011. It includes a project vision statement and discusses in very general terms possible land uses, transportation ideas, urban design and built form ideas, and branding and logo options. It also includes a time frame indicating the next steps, which includes a structure planning phase during March and April 2012.
The Tribunal is of the opinion that minimal weight can be given to the Canning City Centre Regeneration Strategy in its current form, in the consideration of the application under review, as it certainly has not progressed to a point where it can be considered a seriously entertained planning proposal.
Mr McLeod also referred the Tribunal to a draft Local Planning Policy - Urban Design Policy (Urban Design Policy). This policy has not been adopted by the City at this stage and is not considered particularly useful in the determination of this matter by the Tribunal, as it provides for the predevelopment assessment of 'significant developments' and the establishment of a Design Review Panel in order 'to optimise the land use and design quality of developments'. This development application was submitted in February 2011 and refused on 9 August 2011, and the City resolved to endorse and advertise this draft policy at its meeting on 27 September 2011.
With regard to Directions 2031 and SPP 4.2, the Tribunal is of the view that it is consistent with orderly and proper planning for them to be considered in the determination of the application under review as they are existing strategic state planning documents containing broad planning objectives and principles. But, as discussed above, the existing statutory planning framework continues to apply and it is the role of the Tribunal to assess the development application against the current statutory planning framework.
Issue 3: Is it appropriate for the options for development fronting Cecil Avenue under consideration in the City Centre Regeneration Strategy to be considered to the point of refusing the application?
Issue 3 overlaps with Issue 2 and, as discussed above, the City is still in the process of preparing a City Centre Regeneration Strategy. The documents provided to the Tribunal do not indicate a detailed final strategy and the Tribunal considers it to be in its preliminary stages.
Mr Verwey gave evidence that some recommendations have arisen from the various studies commissioned by the City and referred to earlier. These recommendations include reducing the 15 metre setback required for development fronting Cecil Avenue to nil in order to 'provide natural surveillance and weather protection for pedestrians and active building frontages and fewer blank walls'. It was his view that Cecil Avenue should include street parking, rapid transport lanes, single lane traffic in both directions, limited access to offstreet parking and wider pedestrian paths. In order to achieve this he suggested that a road widening of 5.4 metres (2.7 metres from each side) would be required. Mr Verwey also referred to a building massing model which illustrated a four storey building with a 2.7 metre setback (to allow for road widening) which would, in his opinion, provide an appropriate development intensity on this site.
It is obvious to the Tribunal that there are a number of possible options for development fronting Cecil Avenue, which may include development with a nil setback, some form of road widening, and mixed land uses including ground floor retail with residential above, but these options are still in the preliminary stages and it is not in the interests of orderly and proper planning to refuse a development application that complies with the existing statutory planning framework because it may not comply with a future strategy which is still in its preliminary stages.
Issue 4: Is it reasonable to require that development fronting Cecil Avenue be further set back by approximately 5 metres so as to preserve realistic options for an appropriate development at the Cecil Avenue frontage, in addition to the proposed development under review?
Mr McLeod contended that as an alternative to a refusal, it would be reasonable for the Tribunal to apply a condition requiring the proposed development be set back a further 5 metres from Cecil Avenue. During the hearing it was established that the respondent would be reasonably content with a setback distance equal to that of the existing adjacent Commonwealth Bank building. This distance was referred to as 18 metres during the hearing but measures approximately 19 metres on the 1:200 site plan provided to the Tribunal.
Mr McLeod argued that this increased setback would preserve realistic options for future development in line with the City's vision for the Canning City Centre. He said that an 18 metre setback (in lieu of the proposed 15 metres) would provide sufficient width for a 2.7 metre road widening and would still leave 15.3 metres for a future building with a nil setback to Cecil Avenue.
Mr Gianni Da Rui, a graduate architect giving evidence on behalf of the applicant, expressed his view that a building could be constructed within 15 metres or less in the future that would be appropriate for the location. Mr McLeod argued that a width of 12.3 metres (15 metres minus 2.7 metres possibly required for road widening) would seriously limit the development options in terms of style, quality and bulk suitable for a city centre location.
Mr Davis said that, although Office was an appropriate land use for the site, a retail component at ground level operating in association with the Carousel Shopping Centre site opposite would be the City's preferred outcome in terms of street activation and the provision of an economically sustainable main street. It was his opinion that, from a retail perspective, the depth typically required for retail activity to occur is in the order of 12 17 metres as more than 17 metres is not economically viable in the back and less than 12 metres is untenable and rare.
Dr Mouritz argued that alignment with the existing Commonwealth Bank building was logical and would provide the greatest opportunity for future development adjacent to Cecil Avenue.
The Tribunal understands the City's aspiration for a main street style frontage to Cecil Avenue but would note that discussions with the owners of the Carousel Shopping Centre, which covers a large landholding opposite the site and abutting Cecil Avenue, are in the preliminary stages and design outcomes are uncertain at this stage.
The Tribunal is of the view that, if the proposal is approved, there is no need for a condition requiring the setback to Cecil Avenue to be increased for two reasons:
First, evidence was presented that a depth of between 12 metres and 17 metres is sufficient for viable retail activity to occur and a setback of 15 metres would allow for this possibility even if a road widening of 2.7 metres eventuated.
Second, there are no details of how or if the Carousel Shopping Centre, which is directly across Cecil Avenue from the site, is to be redeveloped. Any redevelopment of this large site will heavily influence the redevelopment of Cecil Avenue and the Canning City Centre.
Given the lack of certainty regarding the regeneration strategy for the Canning City Centre, including any redevelopment plans of the Carousel Shopping Centre site, and the fact that there will remain the possibility of developing the 15 metre setback area to Cecil Avenue as active retail space, the Tribunal finds that it is not reasonable to require a further setback to the equivalent of the existing Commonwealth Bank building.
Issue 5: Is approval of the development under review consistent with orderly and proper planning?
For the reasons outlined in Issue 1, the Tribunal has found that it is in the interests of orderly and proper planning that the statutory planning documents, TPS 40 and the Canning Regional Centre Policies continue to be relied upon in the determination of this matter. With regard to Directions 2031 and SPP 4.2, the Tribunal is of the view, as addressed in Issue 2, that it is in the interests of orderly and proper planning for them to be considered in the determination of the application under review in the context that they are existing strategic state planning documents containing broad strategic objectives, principles and provisions.
The Tribunal finds that, as the proposed City Centre Regeneration Strategy is still in the preliminary stages and any redevelopment of the Carousel Shopping Centre site is uncertain, any options for development fronting Cecil Avenue, including a nil setback, possible road widening and a mixed land use, are currently aspirational. It is not in the interests of orderly and proper planning to refuse a development application that complies with the existing statutory planning framework for the reason that it may not comply with a future strategy which is still in its preliminary stages.
The Tribunal is therefore of the opinion that, in all the circumstances of this case, approval of the development under review is consistent with orderly and proper planning.
Conclusion
The Tribunal has considered the merits of the proposed two storey office development on the subject site having regard to the existing strategic and statutory planning framework applicable and has found for the reasons above that is it in the interests of orderly and proper planning for the proposal to be approved subject to conditions.
The respondent requested that, if the development approval was to be granted by the Tribunal, a condition requiring a greater setback to Cecil Avenue be imposed so that the new buildings would align with the existing adjacent Commonwealth Bank building. For the reasons discussed in Issue 4, the Tribunal has determined that it is not reasonable to request a setback greater than the proposed 15 metres from Cecil Avenue.
It follows that the application for review should be allowed, the decision of the City to refuse development approval should be set aside and a new decision granting approval with conditions should be made.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 9 August 2011 to refuse development approval for a two storey office at No 16 (Lot 78) and No 18 (Lot 79) Cecil Avenue and No 19 (Lot 107) Pattie Street, Cannington is set aside and a decision is substituted that development approval is granted subject to the following conditions:
1)The proposed development is to comply and is to be maintained so as to continue to comply in all respects with the submitted plans dated May 2011 included with the application for review (DR 299 of 2011).
2)Lots 78, 79 and 107 must be amalgamated into a single lot on a certificate of title. Amalgamation is to occur prior to the issue of a building licence for the development, unless a legal agreement is executed by the owners (including placement of a caveat on the relevant title so as to ensure that the obligations in the agreement will be binding on subsequent owners), to ensure the amalgamation will occur at the earliest possible later time. The City of Canning may agree to accept a suitable planning solution as an alternative to amalgamation, if it achieves the same or a better outcome for the City of Canning's purposes.
3)All stormwater from the site is to be collected and disposed of in accordance with the City of Canning's Policy No 504 - Drainage - Stormwater Drainage.
4)Before the subject development is first occupied or use of any part of the development commences, 77 car parking spaces together with their access aisles are to be constructed in accordance with the relevant Australian Standards and the City of Canning's specifications.
5)While use of the development continues, the parking provided on the site is to be maintained so as to continue to comply with the Australian Standards and the City of Canning's specifications.
6)Prior to the issue of a building licence the applicant/developer is to submit a plan detailing the proposed landscaping of the subject land. The plan is to satisfy the requirements of City of Canning's Policy SRS 221(O4).
7)All landscaping on the site is to be provided in accordance with the landscape plan prior to occupation of any part of the development.
8)All landscaping is to be maintained so as to continue to comply with the approved landscape plan while any part of the development continues to be used.
9)Prior to the issue of a building licence, the owners must register on the certificate of title to the land an easement in gross in favour of the City of Canning, which provides for rights of carriageway along the Cecil Avenue frontage (as indicated in the approved plans), the deed of grant being in terms commonly included in such deeds.
10)The easement in gross must be registered on the title to the land prior to the issue of a building licence, unless a legal agreement in a form acceptable to the City of Canning (including placement of a caveat on the relevant title) is executed to ensure the easement will be registered at the earliest practicable later time, but in any event prior to occupation of any part of the development. The City of Canning will consider a suitable planning solution as an alternative to the grant of an easement in gross if it is satisfied that the alternative will achieve the same or better outcomes for access along the Cecil Avenue frontage without any crossover directly onto Cecil Avenue.
11)Prior to the issue of a building licence, the owner is to subdivide a 2.53 metre wide right of way from the rear of Lots 78 and 79 Pattie Street and transfer the land to the City of Canning to ensure right of way access.
12)No structure associated with the development is to project into the rear right of way.
13)The temporary turning bay proposed in the development plan is to be suitably marked and signposted to the satisfaction of the City of Canning. When the adjoining Lot 77 has been redeveloped and a suitable right of carriageway is provided on that land, the temporary turning bay can revert to a standard car parking bay.
14)Prior to the issue of a building licence, a 2 metre wide easement in gross to be placed over the landscaping strip along the Cecil Avenue frontage of Lots 78 and 79, which enables the City of Canning to install, manage and maintain the landscaping/paving strip.
15)Prior to any part of the development being occupied the right of way at the rear of Lots 78, 79 and 107 is to be constructed, kerbed and drained to the satisfaction of the City of Canning's Engineering and Technical Services section, and thereafter is to be maintained to that standard.
16)The development is to be connected to the Minister's Sewer, in accordance with the standards and requirements of the Water Corporation.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER
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