CHALLENGER LISTED INVESTMENTS LTD AND METROPOLITAN NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL - [2013] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT (DEVELOPMENT ASSESSMENT PANELS) REGULATIONS 2011 (WA)

CITATION: CHALLENGER LISTED INVESTMENTS LTD AND METROPOLITAN NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2013] WASAT 90

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: 13 AND 14 NOVEMBER 2012 AND 21 AND 23 MAY 2013

DELIVERED : 23 MAY 2013

PUBLISHED : 18 JUNE 2013

FILE NO/S: DR 100 of 2012

BETWEEN: CHALLENGER LISTED INVESTMENTS LTD AND
CHALLENGER PROPERTY NOMINEES PTY LTD
Applicants
AND
METROPOLITAN NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
DELTAVIEW PTY LTD
Intervener

Catchwords:

Town planning - Commercial development - Conditions - Review of condition requiring construction of access road and restricting access to left-in, left-out - Applicant also seeks right-in access - Orderly and proper planning - Traffic safety and convenience - Risk of vehicular collision - Precautionary approach - Whether condition allowing right-in access is futile because roads authority may refuse to allow road works to take place

Legislation:

City of Stirling Local Planning Scheme No 3, cl 6.10.6(f), Amendment No 1
City of Stirling Town Planning Scheme No 38, cl 5.11.4(c)(ii), cl 5.12.1, cl 5.12.4(c)(i), Sch 7
Planning and Development Act 2005 (WA)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)

Result:

Restriction to left-in, left-out access maintained

Summary of Tribunal's decision:

The applicants sought review of the decision of the respondent to grant conditional development approval for commercial development at No 57 Liege Street, Woodlands. A condition required construction of an access road and restricted access to left-in, left-out. The applicants also sought right-in access.
The Tribunal determined that right-in access is not inconsistent with orderly and proper planning, provided that it does not give rise to unacceptable traffic safety and convenience consequences. However, adopting a precautionary approach, the Tribunal also determined that the right-in access should be refused, because the construction of a necessary slip lane to enable safe right-in access is likely to result in some drivers performing an illegal Uturn at the intersection with the access road. This would create a material risk of vehicular collisions.
Finally, the Tribunal determined that, if right-in access were otherwise acceptable, it should not be refused on the ground that it is 'futile' given that the roads authority has indicated that it will not allow necessary roadworks without amendment of an Outline Development Plan. The amendment is not strictly necessary and, in any case, the roads authority may agree to the amendment if right-in access were acceptable in terms of traffic safety and convenience.
The Tribunal published written reasons based on the transcript of oral reasons edited to correct errors in transcription and for clarity.

Category: B

Representation:

Counsel:

Applicants:     Ms BA Moharich
Respondent:     Ms CA Ide
Intervener:     Mr MJ Hardy

Solicitors:

Applicants:     Flint Moharich
Respondent:     State Solicitor for Western Australia
Intervener:     Hardy Bowen

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

Pearl Bay Enterprises Pty Ltd and the Shire of Harvey [2007] WASAT 68; (2007) 154 LGERA 348

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants seek review of the decision of the respondent to grant conditional development approval for commercial development at No 57 Liege Street, Woodlands (site).
The applicants initially challenged six conditions imposed by the respondent. Following mediation, the reconsideration of its decision by the respondent and the withdrawal of the application for review of one condition by the applicants, three matters remained in dispute between the applicants and the respondent, namely, conditions 2 and 8 imposed by the respondent and a time limitation on the approval sought by the respondent.
Following a hearing on 13 and 14 November 2012, the Tribunal made orders and gave oral reasons resolving the dispute in relation to condition 8 and the time limitation. The Tribunal also made programming orders for the resolution of the dispute in relation to condition 2. Condition 2 states as follows:
The Odin Road extension south of Scarborough Beach Road is to be constructed to the satisfaction of the City of Stirling Manager Engineering Design and needs to be restricted to left in, left out movement only and to include the provision of pedestrian and cyclist access to Hakea Road.
Condition 2 relates to an internal road through the northern part of the site connecting Liege Street to the east of the site to the Ewen Street extension to the north‑west of the site which, in turn, connects via a short section of Odin Road to Scarborough Beach Road to the north. The left‑in/left‑out restriction imposed by condition 2 precludes right‑in access to the site from the Ewen Street extension and right‑out access from the site to the Ewen Street extension and then onto Scarborough Beach Road via Odin Road. However, vehicles can still access the site via the internal road from Scarborough Beach Road through Odin Road by turning left into the internal road and can still travel to Scarborough Beach Road from the site by turning left out of the internal road travelling west along Ewen Street and north along Bowra Avenue to Scarborough Beach Road.
Although at the hearing in November 2012 the applicants proposed that the intersection between the internal road and Ewen Street should enable full right and left entry and exit to and from the site, they ultimately seek only right‑in as well as left‑in and left‑out access via this intersection. Only approximately 7% of the traffic accessing the site is expected to use the right‑in access from Ewen Street to the internal road sought by the applicants.
The applicants proposed the deletion of condition 2 and its replacement with the following condition:
The internal access road to Lot 1 is to be connected to the Odin Road extension in accordance with the design shown in the attached plan (SK5 Rev B). Satisfaction of this condition cannot occur until the Ewen Street extension (the subject of subdivision approval number 142065) is ceded as a road pursuant to s 152 of the Planning and Development Act 2005 (WA).
The applicants' road plan shows an extension of the median strip on Ewen Street to allow for the creation of a slip lane to turn right into the internal road on the site. In consequence, the applicants' road plan precludes right‑in and right‑out vehicle movements from a portion of the land owned by Deltaview Pty Ltd (Deltaview) known as Lot 100 to the north of the Ewen Street extension. Deltaview, in fact, currently owns most of the land comprising the Ewen Street extension and has substantially constructed the Ewen Street extension pursuant to a subdivision approval of its land and adjoining land. Upon completion of the Ewen Street extension, Deltaview intends that the portion of its land comprising the roadworks will be dedicated as a public road.
On 16 April 2013, the Tribunal granted leave to Deltaview to intervene in the proceeding in relation to the development capacity and capability of Lot 100 and the impact of the proposed roadworks on traffic safety and movement of Lot 100 in light of its development capacity and capability.
At the further hearing on 21 May 2013, the respondent proposed an alternative form of wording for condition 2 as follows:
The internal access road to Lot 1 is to be connected to the Odin Road extension and to be restricted to left in, left out movement only and to include the provision of pedestrian and cyclist access to Hakea Road to the satisfaction of the City of Stirling Manager Engineering Design.

Issues for determination

The following three issues still arise for determination:
1)Whether the substitution of condition 2 to allow a right‑in access to the internal road in accordance with the applicants' road plan is consistent with the orderly and proper planning of the locality.
2)Whether the substitution of condition 2 to allow a right-in access to the internal road in accordance with the applicants' road plan is acceptable in terms of traffic safety and convenience in the locality.
3)Whether the substitution of condition 2 to allow a right‑in access to the internal road in accordance with the applicants' road plan would be futile.
We will address each of these issues in turn.

Is substitution of condition 2 to allow right-in access consistent with orderly and proper planning?

The respondent contends that substitution of condition 2, as proposed by the applicants, is inconsistent with orderly and proper planning in two respects. First, the respondent submits that it is inconsistent with the planning for the immediate locality which has been undertaken through the adoption by the City of Stirling on 18 July 2006 of an Outline Development Plan (ODP) for the southern part of Precinct 6 under the City of Stirling Town Planning Scheme No 38 (TPS 38).
The ODP includes the land owned by Deltaview and a former public road which formed part of Ewen Street. The ODP has been implemented to a significant extent by the construction of the Ewen Street extension as part of the subdivision of the land the subject of the ODP and an allotment owned by the City of Stirling purchased using Scheme funds under TPS 38. The subdivision was approved by the Western Australian Planning Commission (Commission) on 7 September 2007 and, again, on 27 July 2010.
Deltaview has completed the earthworks relating to the realignment of Ewen Street and 80% of the required road and stormwater drainage works as well as 80% of the required sewer works and all of the relocation of public utilities. Deltaview has spent in excess of $3 million on works associated with the subdivision.
The ODP and approved subdivision plan each show a median structure (referred to by the expert traffic engineering witnesses as a 'median break') on the Ewen Street extension opposite the end of the internal road from the site which precludes right‑in and right-out movement and shows a left‑out arrow from the northbound lane of the internal road.
The applicants contend that the Tribunal should pay no regard to the ODP or, alternatively, should give it little weight because 'it has no statutory or legal status' and is, in any event, inconsistent with the contemplation of a road connecting Scarborough Beach Road and Liege Street through the site in TPS 38. The applicants submit that the ODP is, at its highest, merely a policy and that little, if any, weight should be given to it as a policy because it 'appears to have been prepared gratuitously to give effect to the contractual agreement entered into between the owners of Lot 100 and the City of Stirling', and because it is a 'secret policy' not the subject of proper public consultation.
However, the ODP has statutory status under TPS 38. Schedule 7 of TPS 38 provides that:
Prior to development commencing on land affected by Land Re-Subdivision proposals indicated in this Schedule, Council may first require approval of a concept plan for individual Development Sub‑Precincts. …
Schedule 7 of TPS 38 includes Precinct 6, although not Precinct 8 which comprises the site. It is clear from Council minutes of the meeting of the City of Stirling on 21 February 2006 that the Council regarded the ODP as 'a concept plan lodged as a precursor to more detailed development applications'. It is also clear from Council minutes of the City of Stirling on 25 October 2005 that Council used the terms 'Outline Development Plan' and 'Concept Plan' interchangeably in relation to the ODP. The minutes state:
The proposal represents a modification to the adopted Outline Development Plan (or Concept Plan) which would guide any subdivision or redevelopment of the Precinct.
The ODP is, in effect, a Concept Plan required and adopted by the City of Stirling under Sch 7 of TPS 38 in relation to subdivision and development of Precinct 6. However, as acknowledged in the minutes of 25 October 2005, the ODP 'varies the site layout specified in Schedule 7 of the Scheme, requiring modifications to the Scheme to reflect this'. This is because Sch 7 shows a direct connection for traffic from Scarborough Beach Road via Odin Road to the northern boundary of the site and via the site to Liege Street. As noted earlier, the ODP only contemplates a left‑in/left‑out access from Odin Road to the site because it shows a barrier preventing right‑out and right‑in access on Odin Road and shows a left arrow from the internal access road.
Because the ODP varies the site layout specified in Sch 7 of TPS 38 and TPS 38 has not been amended to reflect the ODP, the ODP is properly to be regarded as a policy of the Council as to its planning intention for the area, rather than as a Concept Plan under TPS 38.
While it appears that the ODP is consistent with contractual arrangements between Deltaview and the City of Stirling, there is no evidence that it was adopted for an ulterior purpose and not for a proper planning purpose. Indeed, insofar as the Ewen Street extension is concerned, the evidence shows that there was a sound and pressing planning purpose served by that aspect of the ODP, in that it addressed and resolved a highly unsatisfactory situation under which approximately 3,500 vehicles per day using Ewen Street would traverse a private carpark on the land now known as Lot 100 to get to the Scarborough Beach Road/Odin Road traffic lights to go east.
Furthermore, contrary to the applicants' argument, the evidence shows that the ODP was considered by the Council at meetings on a number of occasions and was publicly advertised. It cannot be characterised as a 'secret policy'. Also, importantly, the ODP has been implemented to a significant degree by the subdivision approval granted by the Commission and the roadworks undertaken by Deltaview pursuant to that approval.
The ODP is therefore to be given weight as a policy of the City of Stirling as to its planning intention for the area. However, orderly and proper planning is to be assessed in the context of the whole planning framework, not just the ODP. Furthermore, while the ODP affects access from the site through the internal road to the north, the ODP was not adopted, nor could it have been adopted under Sch 7 of TPS 38, in respect of the site. As noted earlier, the site comprises Precinct 8 under TPS 38 and is not the subject of Sch 7 of that Scheme.
The planning framework includes TPS 38 and Amendment No 1 to the City of Stirling Local Planning Scheme No 3 (LPS 3). Amendment No 1 of LPS 3 is a seriously‑entertained planning proposal under which TPS 38 will be repealed and the area the subject of TPS 38 incorporated into the LPS 3 area.
The planning framework in TPS 38 and Amendment No 1 of LPS 3 clearly contemplates and provides for the creation of a local road through the northern part of the site to link Liege Street with Scarborough Beach Road. Clause 5.11.4(c)(ii) of TPS 38 prescribes development criteria in relation to Precinct 7 to the north of the site, which include the following:
In order to encourage development which focuses on a centralised courtyard, car parking will be confined to the eastern and northern periphery of the site accessed via a new road provided from Liege Street and the extended Odin Road (refer Schedule 7). This will minimise future access from Scarborough Beach Road and restrict uncoordinated and fragmented carparking and pedestrian links.
In Sch 7 of TPS 38, map 2 shows Odin Road as connecting Scarborough Beach Road and the site.
Clause 5.12.1 of TPS 38 contains a statement of intent for Precinct 8, which comprises the site, including the following:
It is proposed to provide a new link road in the northern portion of the Precinct to encourage development such as restaurants to face an internal plaza or courtyard with car parking, access and servicing primarily from Scarborough Beach Road and the new access road.
Clause 5.12.4(c)(i) of TPS 38 also provides in relation to Precinct 8 that:
Development and car parking is to be centred around and accessed off a new road linking Precincts 7 and 8 via the northern portion of Liege Street to Scarborough Beach Road.
Furthermore, the City of Stirling purchased an allotment to the north of the site using Scheme costs, 80% of which were contributed by the applicants, which is intended to comprise the northern section of the link road contemplated by TPS 38.
Clause 6.10.6(f) of LPS 3, as proposed to be incorporated by Amendment No 1, concerns the Woodlands precinct, which includes the site. That provision sets out requirements for detailed area plans, in terms which include the following:
The following specific criteria (as identified in the Stirling City Centre Structure Plan) shall be included in the detailed area plans for this precinct:
New road connection through the cinema site linking Scarborough Beach Road with Liege Street (2 lane, low speed local street).
The reference to the 'cinema site' is a reference to the site the subject of the development application. Further, while the Stirling City Centre Structure Plan remains in draft, it also clearly contemplates a link road through the site to connect Scarborough Beach Road and Liege Street.
However, the right‑in movement proposed by the applicants is not strictly necessary to achieve the planning intention of a link road contemplated by the planning framework. The left‑in/left‑out restriction still allows direct access from Scarborough Beach Road to Liege Street south and access from Liege Street to Scarborough Beach Road, although via Ewen Street to the west and Bowra Avenue to the north.
Moreover, the right‑in movement proposed by the applicants does not achieve the planning intention of the planning framework because it would provide access from residential areas to the west to the site, not access from Scarborough Beach Road via the site to Liege Street. As noted, that access is provided notwithstanding the restriction to left‑in/left‑out movement. Nevertheless, and provided that the applicants' substituted condition 2 does not give rise to unacceptable traffic safety and convenience consequences, it has a public benefit to motorists from the west.
In our view, provided that it does not give rise to unacceptable traffic safety and convenience consequences, the substitution of condition 2 to allow right-in access is not inconsistent with orderly and proper planning simply because it is inconsistent with the ODP.
The second respect in which the respondent contends that the proposed substitution of condition 2 is inconsistent with orderly and proper planning is that it would limit access to the easternmost accessway of Lot 100 to left‑in/left‑out, as opposed to full movement access contemplated by the ODP and upon the basis of which the subdivision and development applications for Lot 100 were approved.
The development approval showing a full movement driveway in that location of Lot 100 has lapsed. However, the ODP also shows a full movement driveway in that location and reflects the intention of the City of Stirling.
Deltaview called Mr Frank Gotsis, an economist and property consultant, to give evidence. Mr Gotsis' evidence was not questioned or contradicted in relation to his statement that Deltaview intends to complete the subdivision works and obtain clearances prior to the subdivision approval expiring on 27 July 2013. Mr Gotsis gave evidence that:
The future lot 100 will be 1.10 hectares in area and in my opinion a site of this size and development potential will require a full movement access point from the realigned Ewen Street.
However, Mr Jacob Martin, a traffic engineer called by the applicants, provided an analysis which shows that there are effective alternative routes from Lot 100 to the right‑in/right‑out routes that will be lost from the eastern accessway as a result of the applicants' road proposal. Mr Martin also notes that the ODP shows a second full entry access point providing full entry and exit from Lot 100 at the western end of that lot.

The traffic engineering expert witnesses called by the respondent, Mr Donald Veal and Mr Rainer Wolker, both expressed the opinion that the restriction of the easternmost accessway of Lot 100 to left‑in/left‑out will create significant traffic movement issues for that lot when developed. Mr Benham Boardbar, a traffic engineer called by Deltaview, agrees with Mr Veal and Mr Wolker.
Mr Boardbar gave evidence that the removal of opportunity for full access from Lot 100 to Ewen Street in the eastern part of that property 'will significantly compromise the accessibility of the site for traffic from the north and east, as well as traffic wishing to travel west from the site'. He also said that Lot 100 'will not be permitted to have any access on Scarborough Beach Road' and that 'there are no other safe opportunities further west along Ewen Street extension to provide alternative full movement access to Lot 100'.
However, Lot 100 has the benefit of left‑in/left‑out access to Scarborough Beach Road via an easement over the adjoining service station site, and the current ODP and subdivision and development scenario for that property provides other access points including a full access point on Ewen Street at the western end of Lot 100, although in the current development scenario for Lot 100 this access would require traversing a carpark.
As the applicants submit, the development approval for Lot 100 has lapsed and the development scenario shown in the ODP could be modified at this stage to avoid having to traverse a carpark in this location. Mr Martin also notes that there is access from Lot 100 to Bowra Avenue to the west, via a right of way. Although the right of way is currently undersized for a two‑way road, Mr Wolker indicated that there is likely to be a requirement at redevelopment stage for the lots fronting the right of way to cede 1.5 metre sections of those properties to facilitate the widening of the right of way.
Having regard to these matters, we find that the applicants' proposed substituted condition 2 would not preclude reasonable development of Lot 100 and is therefore not contrary to orderly and proper planning in this respect.

Is substitution of condition 2 to allow right-in access acceptable in terms of traffic safety and convenience?

The traffic engineering expert witnesses called by the applicants and the respondent agree that the applicants' revised road plan for Ewen Street, which would enable right‑in as well as left‑in and left‑out access to the internal road, 'now meet[s] relevant design standards and compl[ies] with standard vehicle movements' and 'is acceptable from an engineering design point of view'.
Mr Boardbar disagrees because the proposed intersection of the internal road and Ewen Street would involve vehicle swept paths impacting to a degree on pedestrian paths and crossing facilities when applying the Austroads Guide (Austroads). Mr Martin, Mr Veal and Mr Wolker agree that the applicants' proposal does not fully comply with Austroads but accept the design from an engineering viewpoint. Mr Boardbar agrees that the City of Stirling may accept the design from an engineering viewpoint. Given particularly that Mr Wolker is the City of Stirling's road design engineer and accepts the design, we find that it is acceptable in terms of pedestrian safety.
However, Mr Veal, Mr Wolker and Mr Boardbar are of the opinion that there is a potential risk consequent upon the applicants' road proposal that some drivers exiting Lot 100 and wishing to travel west, but unable to turn right because of the median structure necessary for the slip‑lane allowing right‑in access to the internal road on the site, will attempt to perform an illegal U‑turn at the intersection of Ewen Street and the internal road to the site with adverse safety consequences. Mr Martin acknowledges this risk, but expresses the view that the likelihood of illegal u-turns is quite low, because drivers have other safer opportunities 'that require much less time and much less risk'.
Mr Boardbar, whose opinion is shared by Mr Veal and Mr Wolker, considers that the fact that there are other available options does not mean that there is no risk and that by approving the applicants' proposal 'we are creating risk'. He described the scenario that would be created as 'undesirable and unsafe'.
We prefer Mr Boardbar's, Mr Veal's and Mr Wolker's evidence on this point to Mr Martin's evidence. When it comes to matters of traffic safety, a precautionary approach is warranted. All the experts consider that a consequence of the median structure necessitated by the slip‑lane to allow the right‑in movement sought by the applicants is the creation of a risk which would not otherwise exist of vehicles forced to exit left, but wishing to go right out of Lot 100, performing an illegal U‑turn at the intersection of Ewen Street and the internal road into the site.
This is undesirable and unsafe, given that vehicles will be travelling along Ewen Street south from Scarborough Beach Road and also from a carpark to Precinct 7 to the east of Odin Road. While Mr Martin is correct that there are alternatives for people wishing to travel west, it is likely that some drivers will attempt to perform a U‑turn as it would appear to be simpler. This type of risk may be unavoidable in existing situations. However, the proposal would create a risk of vehicular collision that otherwise does not exist. The risk of collision is, in our view, material because of the potential conflict between vehicles undertaking the U‑turn with vehicles travelling south from Scarborough Beach Road and the Precinct 7 carpark, particularly because the area where the U‑turn would take place is where the roadway turns from north‑south in Odin Road to east‑west in Ewen Street.
Although there is still potential to modify the development scenario for Lot 100, given the planning processes of the ODP, the subdivision approval and the lapsed development approval over a six to seven year period and the substantial construction of the Ewen Street extension at significant cost to Deltaview, consistently with those planning processes, it is likely that the development of Lot 100 will include an accessway to Ewen Street in the area of the median barrier proposed by the applicants. It is therefore likely that the substitution of condition 2 to allow right‑in access will give rise to an unacceptable traffic safety situation.
In our view, although the right‑in movement would create some community benefit, on balance in the exercise of planning discretion, the applicants' substituted condition 2 should not be imposed because of the unacceptable traffic safety consequence in terms of potential illegal U‑turns at the intersection. Furthermore, as found earlier, the contemplation of the planning framework for there to be a link or connection between Scarborough Beach Road and Liege Street through the site is substantially met by condition 2 as imposed by the respondent, notwithstanding the left‑in/left‑out restriction, and the proposed right‑in movement from Ewen Street does not advance that planning objective.

Would substitution of condition 2 to allow right-in access be futile?

This issue does not ultimately arise for determination in light of our decision in relation to the preceding issue and our decision that it is not appropriate to impose the substitution to condition 2 proposed by the applicants. For completeness, however, and as the issue was debated at some length, we will briefly address it.
The respondent contends that because the Tribunal does not have power to compel Deltaview or the City of Stirling to alter the configuration of the Ewen Street extension to be consistent with the applicants' road plan, the substitution of condition 2 as sought be the applicants is futile and should therefore be refused.
The applicants rely on the reasoning of the Tribunal in Pearl Bay Enterprises Pty Ltd and the Shire of Harvey [2007] WASAT 68; (2007) 154 LGERA 348 (Pearl Bay) at [51], where the Tribunal said the following:
In any case, the fact that the Shire has indicated its opposition does not mean that its opposition will remain indefinitely. In particular, if the Tribunal were to find that the Shire's condition (b) cannot or should not be imposed and that the applicant's alternative conditions should be imposed on the grant of development approval, the Shire might change its position as the authority having the care, control and management of the roads.
The respondent and Deltaview submit that Pearl Bay is distinguishable because, in this case, the City of Stirling is not only the roads authority, but has freehold title to part of the roadway. However, as the applicants submit, the City of Stirling's freehold ownership of that land may well be subject to a constructive public trust to facilitate a roadway because that land was purchased using Scheme costs to provide a connection between Scarborough Beach Road and the site.
Although, as the respondent asserts, the City of Stirling has indicated that it will not allow the roadworks proposed by the applicants on the Ewen Street extension in the absence of an amendment to the ODP for Precinct 6, there is no statutory requirement for an amendment to the ODP and, in any case, if the substitution sought by the applicants were acceptable in terms of traffic safety and convenience, the City of Stirling may agree to the amendment of the ODP. Therefore, substitution of condition 2 to allow right‑in access, if it were otherwise acceptable, would not be futile. It would of course be subject to the City of Stirling, as roads authority and as owner of part of the freehold title to the roadway, allowing the works to take place.
As the applicants correctly concede, while the Tribunal can require off site works to take place by way of a condition of development approval, if the works fairly and reasonably relate to the approved development, it cannot, in the absence of a valid development application for those works, authorise them to be carried out. Furthermore, even when it approves a development application, the Tribunal cannot compel the approved development to be carried out.

Conclusion

In conclusion, the applicants' proposed substituted condition to allow right‑in access to the internal road to the site should not be allowed, because it is likely to give rise to an unacceptable traffic safety situation.
The respondent's alternative wording for condition 2 is appropriate as it does not require the construction of roadworks already undertaken and more clearly identifies the roadworks which are reasonably referrable to the approved development.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed in part.
2.The decision made by the respondent on 30 July 2012 and 2 August 2012 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (being a reconsideration of its decision made on 7 March 2012) to grant conditional development approval for a mixed use development at Lot 1 (No 57) Liege Street, Woodlands is varied as follows:
(a)Condition 2 of Part B is deleted and replaced with the following:
2.    The internal access road to Lot 1 is to be connected to the Odin Road extension and to be restricted to left in, left out movement only and to include the provision of pedestrian and cyclist access to Hakea Road to the satisfaction of the City of Stirling Manager Engineering Design.
(b)Condition 3 of Part B is deleted.
(c)Condition 8 of Part B is deleted and replaced with the following:
8.    The land owner shall enter into a legal agreement with the City of Stirling which requires the internal road to be ceded free of cost to the City upon completion of the next stage of development adjacent to the internal road.
(d)The following additional condition is imposed in Part B:
21.    If the development the subject of this approval is not substantially commenced by 23 May 2018 the approval shall lapse and be of no further effect.
(e)The following words are deleted:
If the development the subject of this approval is not substantially commenced within a period of 2 years, the approval shall lapse and be of no further effect.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT