City of Subiaco v Busen Pty Ltd

The City of Subiaco appealed against a decision of the Town Planning Appeal Tribunal which had allowed an application by Busen Pty Ltd for development approval. The appeal was in respect of premises at 67 - 73 Rokeby Road, Subiaco. The application proposed to amalgamate all of the premises at 67 - 73 Rokeby Road and to operate them as a wine and coffee house pursuant to a category A liquor licence. The City of Subiaco had previously refused the application on the basis that inadequate car parking had been provided. The Tribunal held that although Busen proposed to provide fewer parking bays than were required by the City's Town Planning Scheme No 4 ("the Scheme"), a discretion existed to approve the proposal and that this discretion should be exercised in Busen's favour. In this appeal, the City contends that the Tribunal erred in law in a number of respects in making its determination. Busen also contends that the Tribunal erred in law but that its decision should be upheld on other grounds. Templeman J held that the Tribunal erred in law in finding that the 15 car bays at the Ace Cinema site did not have to comply with cl.71 of the Town Planning Scheme ("the Scheme") and in failing to consider whether those bays complied with cl.71(3). The Tribunal should have found that the 15 car bays had been provided, and were continuing to be provided, in order to meet the requirements of a development approval granted under the Scheme in respect of the Ace Cinema site and, as a result, the bays could only be provided in accordance with the Scheme on a joint use basis. The Tribunal should have found that the requirements of cl.71(3) concerning joint use had not been met on the evidence. Templeman J held that the Tribunal erred in law in finding that cl.70(6) of the Scheme does not qualify the discretion in cl.28. The Tribunal should have found that cl.70(6) qualifies the discretion in cl.28. Templeman J held that the Tribunal erred in law in finding that there was a discretion under cl.28 and cl.70(4) of the Scheme to grant a concession as to car parking spaces that exceeded 25% of the car parking spaces required by the Scheme. The Tribunal should have found that by reason of the terms of cl.70(6) there was no such discretion and the development approval must be refused. The appeal was allowed and the decision of the Tribunal was set aside.