COASTAL MIDWEST TRANSPORT and CITY OF CANNING - [2012] WASAT 202

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: COASTAL MIDWEST TRANSPORT and CITY OF CANNING [2012] WASAT 202

MEMBER: MR J JORDAN (MEMBER)

HEARD: 26 JULY 2012

DELIVERED : 9 OCTOBER 2012

FILE NO/S: DR 195 of 2012

BETWEEN: COASTAL MIDWEST TRANSPORT
Applicant
AND
CITY OF CANNING
Respondent

Catchwords:

Town planning - Industrial zone - Development - Extension of width of crossover - Site used as transport depot - Limit on size of trucks being allowed to use road - Proposed use of crossover for large Restricted Access Vehicles - Separate decision by Main Roads Western Australia on use of road by Restricted Access Vehicles - Proximity of residential use - Impact from use of site by large vehicles

Legislation:

City of Canning Town Planning Scheme No 40, cl 1.8, cl 2.3.8.1, Pt 6, Table 3
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 157, s 252(1)
Road Traffic (Vehicle Standards) Regulations 2002 (WA), reg 29, reg 30, Pt 4
State Administrative Tribunal Act 2004 (WA), s 17, s 29(3)

Result:

Application for review upheld
Refusal set aside and conditional approval granted commencing from date of issue of an approval allowing Restricted Access Vehicles to use a section of Tennant Street, Welshpool

Category: B

Representation:

Counsel:

Applicant: Mr S Fairfoul (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Allerding & Associates (Town Planning Consultants)

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

Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297
Grampian Regional Council v Aberdeen District Council (1983) 47 P & Cr 633
SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266

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 to widen a crossover from a transport depot to Tennant Street in Welshpool. The planning purpose of widening the crossover was to enable Restricted Access Vehicles up to 27.5 metres in length to gain access to the site. A separate approval from the Commissioner of Main Roads Western Australia was required before Restricted Access Vehicles could use Tennant Street.
The Tribunal concluded that if Restricted Access Vehicles were permitted by Main Roads Western Australia to use Tennant Street, then there would be an intensification of use of the site because of greater efficiency, but this would not be to the extent that the character of the use of the site was materially changed from that approved. Further, the Tribunal formed the view that the potential impact on the amenity of the locality would not be so great as to warrant the development being refused.
The Tribunal concluded that the crossover widening would be appropriate if Main Roads Western Australia formally approved the trial use of Restricted Access Vehicles on Tennant Street. The Tribunal decided to approve the crossover widening, but with the approval enlivened from when Restricted Access Vehicles were allowed access to Tennant Street.

Introduction

These proceedings involve an application by Coastal Midwest Transport (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal of the City of Canning (respondent, Council or City) to grant development approval for the widening of the vehicle crossover from the street to the applicant's transport depot at Nos 31 39 Tennant Street, Welshpool (site).

Site and locality

The applicant has property that extends south from Tennant Street across Roy Street. North of Roy Street is the site of 1.41 hectares, which is used as a transport depot and comprises two lots. It has frontage to Tennant Street at the north, Tate Street at the southeast, and Roy Street to the south. The site has three crossovers to Tennant Street, one crossover at the corner of Tate Street and Roy Street, and three crossovers to Roy Street. South of Roy Street, the applicant has a mixed use lot of 0.42 hectares with two crossovers to Roy Street and with frontage also to Tate Street. This lot abuts residential lots south of Roy Street.
On the site between Tennant Street and Roy Street, the application plan shows five warehouses occupying much of the site, with adjacent vehicle circulation and unloading areas and car parking spaces.
The site is within the respondent's West Welshpool Precinct (precinct). This is the southwestern portion of the KewdaleWelshpool industrial area, a major strategic industrial area in the Perth metropolitan area. The precinct is bound to the west and south by the residential suburbs of St James, Bentley and Cannington. This precinct is bounded to the north by Welshpool Road, the east by Sevenoaks Street, the south by Leach Highway, and the west by Albany Highway. Albany Highway and Leach Highway are primary regional roads under the Metropolitan Region Scheme (MRS), and Welshpool Road and Sevenoaks Street are Other Regional Roads under the MRS. The main suburban railway line between Perth and Armadale abuts the east side of Sevenoaks Street.
The four roads defining this precinct are not perpendicular to each other. Within the precinct, Tate Street is the northernmost street of three streets, the others being John Street and Ewing Street, which provide a direct link between Albany Highway and Sevenoaks Street. North of Tate Street, Roy Street, Tennant Street and then Adrian Street are parallel to Welshpool Road. Tennant Street and Roy Street meet Tate Street at an angle at the eastern end, and to the west, have a junction with Ellam Street, which is parallel with Albany Highway. West of Ellam Street to Albany Highway, the land use is 'residential'. East of Ellam Street, where the site is located, land use is 'general industry' and 'mixed commercial uses'.

The proposal

On 26 April 2012, the applicant applied to the Council for development approval to widen the westernmost crossover to the site in Tennant Street. The respective statements of facts from the parties agree that it is proposed to widen the crossover from 8 metres to 12.2 metres. The sketch accompanying the application for development approval in the respondent's bundle of documents shows the crossover 12.2 metres wide at a gate on the boundary line, widening to 15.2 metres at the kerb. The application sketch shows a further triangular area of 'mountable kerb' at the eastern edge of the crossover, adding 6 metres at the kerb and tapering to a point at the gate on the site boundary. The total width of the crossover appears to be 21.2 metres, including kerb, at the carriageway edge, and 12.2 metres at the site boundary.
There was no dispute between the parties that a crossover of this width would enable a westward travelling Restricted Access Vehicle (RAV) up to 27.5 metres in length to turn left into the site without first crossing to the righthand side of Tennant Street. One of the plans included with the application showed that an RAV could then turn about 180 degrees into a covered loading and unloading space between the Tennant Street boundary and the sheds on the site. The plans did not show how the trucks would exit the site.
At present, only unrestricted trucks up to 19 metres in length can legally travel on Tennant Street. The applicant said that it had separately applied to Main Roads Western Australia (Main Roads) to have additional lengths of road included in the road network for RAVs up to 27.5 metres in length. The additional roads would be about 180 metres of Tennant Street between the Tennant Street/Charles Street/Tate Street intersection and the westernmost crossover to the site, and Tate Street, from Sevenoaks Street to Tennant Street.
The applicant asked the Council to endorse these extensions of the RAV road network or, alternatively, to endorse a six month trial of the use of these sections of roads by RAVs up to 27.5 metres in length. The applicant said that Main Roads supported this separate application, and this is discussed further below.

Planning framework

Under the City of Canning Town Planning Scheme No 40 (TPS 40), the site between Tennant Street and Roy Street is zoned 'general industry'. That part of the property south of Roy Street is zoned 'mixed business'. Part 6 of TPS 40 includes provisions relating to industrial development, and states:
The purpose and intent of the General Industry zone is to provide adequate and suitably located land for the establishment of manufacturing and wholesale industrial enterprises together with a range of compatible service industries.
The existing use of the site is as a 'transport depot', which is listed in Table 3 Zoning Table of TPS 40 as an 'AA' use. An 'AA' designation means that the use is not permitted unless the Council exercises discretion and grants an approval.
At cl 1.8 of TPS 40, the general objects of TPS 40 include promoting the orderly and proper development of land, and making suitable provision for the use of land within the City, but also to secure the amenity, health and convenience of the City and its inhabitants. Clause 2.3.8.1 of TPS 40 lists matters to be considered when considering an application for development approval, and these include:
(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.
The City has adopted Policy ET501 Road Facilities Standard Crossings (Crossover Policy). The Crossover Policy provides, at cl 5.2, that the maximum width of a crossover to an allotment zoned for other than 'residential' shall be 11 metres. Clause 5.0 of the Crossover Policy also states:
Widths greater than those listed may be approved by the Executive Engineering and Technical Services, subject to application citing grounds for special consideration.
The City has also adopted Policy SRS213 Assessment of Applications for Development Approval for Industrial Uses in Proximity to Residential Areas (Policy SRS213). The purpose of Policy SRS213 is to ensure that industrial developments in proximity to residential areas do not have a detrimental impact. In considering new industrial uses or extensions to existing industrial uses, relevant matters should be taken into consideration, including:
[t]he impact of vehicle/truck movements associated with the activity through surrounding areas.
Included in the respondent's bundle of documents is the West Welshpool Precinct Planning Study dated October 2009 and prepared by TPG Town Planning and Urban Design Consultants. The City identified a need for a report to 'address the interface between the industrial and residential areas within the [precinct] …'. The respondent said that the report had not yet been presented to Council, as more analysis was being carried out.

RAV road network

The Tribunal informed the parties that, to better understand the documents filed and the assertions in the witness statements, it had referred to the Road Traffic (Vehicle Standards) Regulations 2002 (WA) (Vehicle Standards Regulations). Under the Vehicle Standards Regulations, the definition of an RAV includes a motor vehicle that is part of a combination with a trailer that is greater than 19 metres in length, 4.3 metres in height and 2.5 metres in width.
Main Roads produces tables in which it places RAVs into categories from 1 10. Class 2, 3 and 4 RAVs are no more than 27.5 metres in length and 4.6 metres in height. RAVs in the other classes are longer and, in some types, higher and wider. The parties variously referred to class 2, 3 and 4 RAVs. Essentially, the reference by the parties was to RAVs up to 27.5 metres in length.
Pursuant to the provisions of Pt 4 of the Vehicle Standards Regulations, the Commissioner of Main Roads (Commissioner) is able to issue permits for the different RAV categories. Regulation 29 of the Vehicle Standards Regulations provides that the Commissioner may, by notice in the Government Gazette, specify roads on which class 2 vehicles may be driven. Regulation 30 of the Vehicle Standards Regulations provides that the Commissioner may issue a permit allowing class 2 vehicles on roads for which a notice has not been issued. It was common ground that as a matter of practice, Main Roads required an application to allow RAVs to use a particular road to be referred to the local government with a request for endorsement.
Main Roads publishes tables that list sections of roads that are included in the networks for each category of vehicle and any conditions associated with the use of that section of road by the class of vehicle. Coloured maps are also produced, illustrating, for example, network 2 roads for class 2 RAVs, network 3 roads for class 3 RAVs, and so on.
In the vicinity of the site, the network 2 map includes sections of Welshpool Road and Sevenoaks Street. Also included in the network 2 map is Charles Street, which runs north parallel to Sevenoaks Street from Ewing Street across John Street, both of which are in network 2, to Tate Street. The carriageway continues north across Tate Street where it becomes Tennant Street and deviates to the northwest. Tate Street, Tennant Street and Roy Street are not included in any RAV network.

Background

The background to the current application assists in an understanding of the approach of the parties to the proposed development. The respective bundles of documents filed by the parties included copies of the minutes of various Ordinary Council Meetings (Council minutes). The Council minutes of 16 December 2008 refer to a Council resolution of April 2005, in which the City resolved not to endorse class 2 and class 3 notice roads, network 2 network 7, until there were changes to other truck routes involving Leach Highway. Main Roads continued to allow previously approved routes.
In May 2008, the Council resolved to defer consideration of an extension to RAV network roads until completion of the West Welshpool Precinct Planning Study. In November 2008, the applicant requested that the Council reconsider its decision of May 2008. The two requests to the Council for extension of the RAV 2 network in 2008 specifically referred to extensions to the RAV networks 2, 3 and 4 along Tennant Street to gain access to the site. At the meeting of 16 December 2008, the Council resolved not to endorse the proposed extension to network 2 to network 4 roads.
In the Council minutes of 28 June 2011, the officer's report referred to a letter from the applicant dated 31 May 2011, requesting Council again consider endorsing changes to enable networks 2, 3 and 4 vehicles to gain access to the site from Tennant Street. Officers recommended approval, but the Council again resolved to refuse to endorse the extension of the RAV road network.
The officer's report in both the Council minutes of 16 December 2008 and 28 June 2011 state that, in respect to the proposal that class 2 and class 3 vehicles up to 27.5 metres in length be permitted to use Tennant Street, '[t]he roads are designed to accommodate both the vehicle mass and the turning requirements at the intersections …'.
The applicant provided in its bundle of documents, and referred to, a letter dated 21 September 2011 from the Principal Policy Adviser of the Minister for Transport; Housing addressed to the applicant. The letter states, in part:
Main Roads has advised that the City of Canning technical officers have raised no engineering concerns about the proposed access and I understand this position has been reflected in the West Welshpool Precinct Study … However, the elected members of Council have made it very clear to Main Roads on a number of occasions that they do not support your company's application to extend the current Class 3 RAV Network to provide access to your premises …
Main Roads has rightly been reluctant to go against Council's position and this is in keeping with Main Roads' strategic objective of providing safe and efficient road access that enhances community lifestyles.
…
In view of the productivity improvements a Class 3 RAV extension would result from use of this short section of road and the advice provided by the City of Canning technical officers, the Minister is prepared to support allowing conditional access for a 6 month probationary period. To this end, the Minister has asked Main Roads to liaise with your company and the City of Canning about conducting such a trial and the parameters under which it will be operated and reviewed.
The access would be withdrawn at any time during the probationary period should there be a breach of the agreed terms and conditions.
Main Roads will be in contact with you shortly about the proposed trial arrangements.
The officer's report in the Council minutes of 8 May 2012 refers to Main Roads contact with the City. Main Roads was said to have referred to a request from the office of the Minister for Transport to Main Roads about conducting a six month trial of class 3 RAV access to Tennant Street and the parameters under which the test would be operated and reviewed. The report in the minutes states:
Main Roads WA has undertaken an inspection of Tennant Street and assessed sweep paths on the entry and exit points, including short test runs using a 27.5 [metre] long Bdouble combination. Main Roads WA has requested that Coastal Midwest Transport widen the entry gate to accommodate 'lane correct' turning into the premises prior to the trial commencing.
At the Council meeting of 8 May 2012, Council considered a request from the applicant to endorse a six month trial for class 2 and class 3 RAVs to use Tennant Street to gain access to the site. The Council also considered an application for development approval to widen the existing western crossover to the site in Tennant Street. Two officer recommendations were put to councillors at an Ordinary Council Meeting. Recommendation 1 was that the Council resolve to:
(a)Endorse the proposed 6 month trial for Coastal Midwest Transport to use Class 3 Restricted Access Vehicle (RAV) access to their depot at 31 39 Tennant Street, Welshpool.
…
Recommendation 2 was that, in respect of an application for development approval under TPS 40, Council resolve to:
(a)Approve the proposal for the widening of the existing crossover associated with 31 39 Tennant Street, Welshpool …
…
The Council resolved not to support the applications and conveyed its resolutions to the applicant on a form used to advise applicants of decisions on a development application under TPS 40. The Council decision dated 8 May 2012 is expressed in exactly the following terms:
Council's Development Approval to the proposed development described on the application dated 26 April 2012 and the accompanying plans are REFUSED for the following reasons:
(1)Contrary to previous Council decisions/resolutions dating back to 2005 relating to restricted access vehicles.
(2)Council is being asked to approve travel on local roads by vehicles (R.A.V[.]) Class 2 and 3, noticeroads, networks 2 to 4 on roads where they are currently unapproved and by definition illegal.
(3)Council is yet to consider any detailed proposals of the West Welshpool precinct study into R.A.V[.] traffic movements in the West Welshpool precinct study area as the consultants are yet to submit their final study findings.
(4)Driveway width (proposed) is possibly contrary to Policy [ET501], Section 5, subsection 5.2.
At the hearing, it was the applicant's submission that the Commissioner, at the request of the Minister for Transport, has approved the use of the 180 metre section of Tennant Street by RAVs.

The Tribunal has not been satisfied that the six month trial or an extension of the network 2 routes in Tennant Street have been formally approved by the Commissioner. No written evidence to this effect was produced at the hearing, and neither was any relevant witness who could attest to this called by the applicant. Main Roads' approach to the City appears to refer to what would be required if a trial was approved by the Commissioner.
The Commissioner's response to the Council's refusal to endorse the trial was not revealed. Further, the applicant said at the hearing that it no longer required RAV access on Tate Street from Sevenoaks Street to Tennant Street, and would be informing the Commissioner of this. The Tribunal formed the view, from the submissions, that the Commissioner might favourably consider a trial, but that decision has not yet been formally issued.

Issues

The respondent prepared a list of issues which the applicant added to. These can be arranged as follows:
1)Whether the approval of the application for crossover widening would result in the potential for more RAVs of 27.5 metre length using the road network in the locality.
2)Whether refusal of planning approval for the widening of the vehicle crossover from the applicant's premises to Tennant Street would have the effect of preventing or discouraging the approval of more RAVs using the road network in the locality.
3)Whether it is appropriate for heavy vehicles, including RAVs, to access industrial areas.
4)Whether it would be consistent with orderly and proper planning for there to be a restriction on RAVs using the road network in the locality.
The Tribunal identified from the witness statement of Mr Tyson Burkett, a town planner called by the respondent, the following issues:
1)Whether the introduction of RAVs would result in the intensification of the existing use, both on the site and on the surrounding road network.
2)Whether, if there is intensification of the use of the site, there would be an undesirable impact on the local amenity.
Finally, the respondent also listed as an issue:
3)Whether it would be consistent with orderly and proper planning for decisions to be made effecting the modification of the RAV network in the locality and, as a consequence, increasing the potential for more RAVs on the road network in the locality before completion and Council approval of the West Welshpool Precinct Planning Study.

Discussion

Mr Burkett said in his statement of evidence, when discussing the proposal:
It is noted that, of itself, the widening of the crossover is not offensive. Instead, it is the purpose for which the widening is required that is the subject of the primary review of this matter. …
The Tribunal, with respect, considers that it is appropriate to have regard to the purpose of a planning application to determine whether it would be consistent with orderly and proper planning. The Tribunal, in deciding whether or not to allow the proposed widening of the crossover, quite properly can have regard to the use to which the crossover is to be put. This is consistent with the principle set out in SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266 (SinAusBel), at [4], where it was stated that:
… [The Tribunal] concluded that it was appropriate to consider the subdivision application in the context of the likely future development of the land. In that context, the Tribunal accepted that the condition did serve a legitimate planning purpose, and was reasonably related to the proposed subdivision. It considered that the condition was, in all the circumstances, reasonable, and should be affirmed.
The Tribunal has formed the view, from the issues identified and the evidence and submissions put to it, that the parties were seeking to have addressed two different but interrelated purposes relative to the proposal to widen the crossover. The first purpose related to allowing RAVs the use of Tennant Street. The widening of the crossover, if imposed as a condition to facilitate the turning of RAVs from Tennant Street into the site, would be one way of ensuring that allowing RAVs onto Tennant Street would serve some purpose. The second purpose addressed by the parties was the use of the site as a transport depot and whether widening the crossover to allow RAVs to turn into the site would change that approved use.
As set out above, whether or not RAVs are permitted to use Tennant Street is within the jurisdiction of Main Roads. An application to extend the RAV network is not made to the City under TPS 40 or local laws, and the City has no power to determine such an application. The City is asked for comment and it can decide whether or not to endorse an application to extend the RAV network. The Commissioner is required to consider relevant matters, which includes the advice and recommendation of the local government.
The Tribunal has no role in the process of determining whether or not to extend an RAV 2 network road. The decision of the Commissioner is not a decision reviewable by the Tribunal pursuant to s 17 of the State Administrative Tribunal Act 2004 (WA). If the Commissioner makes a decision to extend the network, notwithstanding an objection made by the City, the City might have recourse elsewhere, although the parties were unable to illuminate for the Tribunal whether there was such recourse available, particularly to a third party, such as the City.
It is not the Tribunal's role to make comment on a substantive matter that is wholly outside its jurisdiction. It would be inappropriate for the Tribunal to make what must be regarded by the Commissioner as just another submission on whether to extend the class 2 RAV network.
There is, however, before the Tribunal, an application for review of the decision made by the respondent on the development application to widen the crossover that is within the Tribunal's jurisdiction.
The Tribunal considers it wrong, in principle, for a third party, in this instance, the City or, on review, the Tribunal, to use a condition of approval imposed by a different decisionmaker under other legislation as a mechanism for a collateral attack on the decision by that other decisionmaker in the substantive matter. If it is the use of Tennant Street by RAVs that is being considered, then refusing to allow the implementation of a condition imposed by the Commissioner would, in effect, be transferring to the Tribunal the decision on whether RAVs can be allowed to use Tennant Street.
It is not unusual that a condition be imposed on a use or activity that otherwise is within the power of a third party. Examples might be road construction and fill and drain conditions imposed on a subdivision. In respect of subdivision, doubt is removed by s 157 of the PD Act, providing that an approval of a subdivision is to be taken as an approval of relevant works under the local planning scheme. The local government provides the technical requirements to ensure that any such conditions are properly complied with.
The Tribunal is not aware of comparable statutory provisions in respect of the powers exercised by the Commissioner in respect of RAV routes. Similarly, there is no overarching statutory approval in respect of development conditions that require the clearance of a third party, such as a utility provider or a local government, imposed on development by the Western Australian Planning Commission or a Development Assessment Panel. The Tribunal, however, is of the view that the principle that the role of the third party is to provide the technical requirements to satisfy a condition is the same.
If a conditioned approval is issued by Main Roads for RAVs to use Tennant Street, then the Tribunal believes that the proper principle to be followed is, in respect of the crossover widening, for the clearance authority to ensure that the condition can be, and is, properly satisfied. If RAVs being allowed to use Tennant Street were the only question, then that would be the end of the matter.
As stated above, however, there is, for the Tribunal, the second consideration of whether widening the crossover to allow RAVs to turn into the site would change the approved transport depot use of the site.
For the purpose of this assessment, the Tribunal has proceeded on the assumption that the Commissioner might grant approval for RAVs to use Tennant Street. Then, consistent with the principle in SinAusBel discussed above, it is appropriate that the Tribunal consider whether the proposed development would result in an unacceptable change to the use of the site and have an adverse impact on the local amenity. The Tribunal has, where appropriate, considered the listed issues in this light.

Issue 1: Whether the approval of the application for crossover widening would result in the potential for more RAVs of 27.5 metre length using the road network in the locality

Issue 2: Whether refusal of planning approval for the widening of the vehicle crossover from the applicant's premises to Tennant Street would have the effect of preventing or discouraging the approval of more RAVs using the road network in the locality

There would be an increase in RAVs using the local road network if the crossover widening was associated with Main Roads permitting RAVs to use Tennant Street. The applicant says that, at present, an RAV stops at a lot the applicant has elsewhere in Welshpool and then each trailer is separately brought to the site. The trailers are then taken separately back to that other lot and the RAV reassembled.
Mr Peter Fitzgerald, a planner called by the applicant, said that there was currently about 32 single trailer trips to the site per day. He said that this would reduce to below 20 if vehicles up to 27.5 metres in length could travel directly to the site via Tennant Street. This, of course, would clearly be greater than the present no trips. Vehicles of 27.5 metres in length leaving the site would be able to go directly to the network 2 roads from the site, without first having to travel as separate trailers to the current assembly area to be joined to form an RAV.
If approval was not granted for widening the crossover and this prevented RAVs from gaining access to the site, then there would be no point in the RAVs travelling from the applicant's other property to the site on the local roads, even if permitted to do so.
The applicant said that Main Roads would still approve an RAV trial on Tennant Street but, without the crossover widening, the trucks would have to move to the righthand side of the road and a person controlling traffic would be required. There was, however, no evidence filed to support this assertion.

Issue 3: Whether it is appropriate for heavy vehicles, including RAVs, to access industrial areas

Issue 4: Whether it would be consistent with orderly and proper planning for there to be a restriction on RAVs using the road network in the locality

The Tribunal considers that it would be consistent with the orderly and proper planning of Welshpool and Kewdale if uses are approved and operate consistent with achieving the intent and objectives of the industrial zoning under TPS 40. It may well be that this includes premises having direct access to RAV routes. The Main Roads map filed by the applicant reveals that much of the industrial zoned area of Welshpool and Kewdale is served by at least network 2 roads for RAVs.
It does not follow as a matter of course, however, that all industrial lots should front an RAV route. Orderly and proper planning also requires that regard be had to all relevant planning matters when determining whether a development application might be allowed. In this matter, this includes whether RAVs have access to the site and the effect this would have. Clause 2.3.8.1 of TPS 40 requires that consideration be given to the preservation of the amenity of the relevant locality.

Issue 5: Whether the introduction of RAVs would result in the intensification of the existing use, both on the site and on the surrounding road network

Issue 6: Whether, if there is intensification of the use of the site, there would be an undesirable impact on the local amenity

Under issues 1 and 2 above, it was concluded that allowing the crossover widening could be associated with an increase in RAV traffic in Tenant Street. Mr Burkett argued that the introduction of RAVs and the future growth in the number of these vehicles over time would, by their size and capacity, consolidate and intensify the transport depot use of the site. This, he said, would have an adverse impact on the amenity of the locality and would not be in the interests of orderly and proper planning.
Mr Fitzgerald said that vehicle numbers might increase because of market conditions, but that the controlling factors, which were the size of the site and the storage space available, would not change. In his submission, there will be the same intensity of use, but the operation will be more efficient if RAVs are used.
The applicant has planning approval to use the site as a transport depot. The Tribunal has formed the view that RAVs visiting the site, instead of individual trailers being brought one at a time, would result in a more efficient operation. The letter of 21 September 2012 from the Minister's Principal Policy Adviser, quoted above, refers to productivity improvements from the use of RAVs.
While the use of RAVs might increase the efficiency of moving goods through the site, the Tribunal does not consider that this would so change the character of the development for it to be considered a different use. The Tribunal has formed the view that the loading and unloading of two trailers brought together to the site by an RAV would not be materially different from loading and unloading two trailers brought to the site individually.
The respondent said that RAVs are currently not present in Tennant Street and that only trucks of up to 19 metres in length could visit the site when the transport depot was approved. The crossover widening would enable RAVs to visit the site, and Mr Burkett referred to Policy SRS213, which requires the need to have regard to:
[t]he impact of vehicle/truck movements associated with the activity through surrounding areas.
Mr Burkett's evidence was that the RAVs would be utilising roads predominantly used by noncommercial and residential traffic.
Mr Burkett pointed out that there are residences in Roy Street abutting the applicant's mixed use lot and 20 metres diagonally across from the transport depot. He related this to the objectives of Policy SRS213, which include:
To ensure that industrial development in proximity to residential areas does not have a detrimental impact on such areas, and to ensure compatibility with adjoining and nearby residential areas.
Mr Burkett also referred to State Planning Policy No 4.1 State Industrial Buffer Policy, which refers to the separation between industrial and sensitive uses, such as residential. Related to this policy is the Environmental Protection Authority's guidance statement, which sets out buffers between industrial and residential uses, which Mr Burkett noted that for transport depots is 200 metres.
Mr Burkett also cited the reference, at page 116 of the respondent's bundle of documents, to the report on environmental aspects attached to the West Welshpool Precinct Planning Study that listed the use of the site as having potential to exceed the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) because of the operating hours. It was the respondent's submission that the use of RAVs would have an unacceptable impact on the residential uses of the locality in conflict with planning controls.
The area into which the RAVs would turn is approximately 120 metres beyond buildings diagonally across the site from residences in Roy Street. The closest of the houses in Ellam Street to the west are approximately 300 metres from the crossover. As stated previously, neither party submitted any expert report on noise associated with this use. The respondent encouraged use of the 'precautionary principle', suggesting that appropriate studies should first be done before any use of RAVs was entertained. It would seem to the Tribunal that a prime mover towing two trailers on the site would not necessarily be discernibly noisier than the same prime mover pulling one trailer. It must be noted that the use of the site must comply with the Noise Regulations.
Councillor Barry and Mayor Della Donna appeared as witnesses. They expressed concern that people travelling in domestic vehicles should not encounter trucks up to 27.5 metres in length. They considered this to be a dangerous and disturbing occurrence when navigating suburban roads. The Tribunal would comment that these views have been made known to Main Roads and no doubt will be a consideration by Main Roads. If RAVs use Tennant Street as proposed, private vehicles travelling east would encounter an RAV route about 180 metres before the RAV routes which they must currently drive along when travelling in that direction. It was not readily apparent to the Tribunal why this additional road length would present a fatal obstacle to the proposed RAV use of the crossover.
Policy SRS213 requires consideration to be given to truck movements associated with industrial activity. This development will not result in any change in the types of vehicles allowed on residential streets in the locality. There will be an increased likelihood of a driver encountering an RAV when travelling through the industrial zone, but in this precinct the change that might result is not considered by the Tribunal to be sufficient to warrant a refusal.

Issue 7: Whether it would be consistent with orderly and proper planning for decisions to be made effecting the modification of the RAV network in the locality and, as a consequence, increasing the potential for more RAVs on the road network in the locality before completion and Council approval of the West Welshpool Precinct Planning Study

The West Welshpool Precinct Planning Study was commissioned by the respondent in 2005 and published by the consultants in October 2009. The evidence of Mayor Della Donna at the hearing was that the Council had not yet accepted this report and was awaiting the completion of other related studies it had since commissioned.
The parties agreed that the West Welshpool Precinct Planning Study could not be considered as a seriouslyentertained planning document, but each cited specific passages from this document to support their respective cases. The respondent cited references to further studies required on such matters as noise, traffic and safety, and the need for transitional uses between general industry and residential uses. It was the applicant's submission that transport depots were referred to as transitional uses and that the report specifically referred to a 180 metre extension of the RAV 2 network along Tennant Street to serve the western crossover to the site.
The Tribunal acknowledges Council's consistent efforts, at least since 2005, to resist extension of the RAV network. It is now, however, three years since the West Welshpool Precinct Planning Study was finished. It was not clear to the Tribunal when any additional studies would be completed and considered by Council. The Tribunal is of the view that commissioning and receipt of that report is not sufficient to place a moratorium on development or to prevent a use that might otherwise be consistent with orderly and proper planning.
In the absence of an adopted strategy for the precinct, the Tribunal considers that it remains open to consider the merits of a development proposal, on the basis of the zoning and scheme provisions that are in place, to provide the framework for a decision. The proposed crossover widening may result in an increase in RAVs visiting the site. The Tribunal considers, however, as discussed above, that this would have a limited impact on the local amenity and would be consistent with the planning objectives for the zone.

Conclusion

It was the submission of the applicant that a history of objection to the extension of the RAV road network is not, of itself, a reason for continuing to refuse such requests.
The Tribunal found that it was necessary to have regard to the purpose behind the planning application to widen the crossover, which was to allow RAVs to gain access to the site. The Tribunal concluded that if RAVs were permitted by Main Roads to use Tennant Street and to gain access to the site, then there would be an intensification of use of the site because of greater efficiency, but this would not be to the extent that the character of the use would be materially changed from that approved. Further, the Tribunal formed the view that the potential impact on the amenity of the locality would not be so great as to warrant the development being refused.
It was common ground that the actual crossover widening was not, of itself, offensive. That, however, is not a reason for simply approving the development. The Tribunal has concluded that the crossover widening would be appropriate if Main Roads formally approved the trial use of RAVs on Tennant Street. The Tribunal, however, did not have before it any written evidence or a statement from a witness from Main Roads that a conditional approval for the trial had been granted.
The Tribunal has decided that RAVs using the site would be acceptable in planning terms, but this is meaningless unless the RAVs can use Tennant Street. It is not unusual that a planning approval be conditional upon an action by a third party if it is clear that the third party is most likely to be taking that action in the immediate future. The evidence does support a realistic expectation that Main Roads will issue a formal decision on RAVs in Tennant Street in the near future.
The Tribunal has concluded that, in the circumstances of this matter, there may be imposed, what can be termed as, a deferred commencement condition; that is, a decision must first be made on allowing RAVs to use Tennant Street before the development application for the crossover widening is enlivened. A similar type of condition has been used elsewhere: Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297, at [12], and was approved by the House of Lords in Grampian Regional Council v Aberdeen District Council (1983) 47 P & Cr 633. The Tribunal considers such a condition appropriate and within the ambit of s 29(3) of the SAT Act.
In these circumstances, the Tribunal considers it appropriate to approve the crossover widening, but effective only from when RAVs are allowed access to Tennant Street. The approval could be conditioned accordingly.

Orders

The Tribunal makes the following orders:
1.The application for review is upheld.
2.The refusal of the City of Canning is set aside and planning approval is granted for the proposed crossover widening to Nos 31 - 39 Tennant Street, Welshpool, subject to the following conditions:
(a)Planning approval is for the proposed widening of the crossover, as set out in the sketch datestamped 8 May 2012 by the respondent.
(b)This approval commences from the date the Commissioner for Main Roads Western Australia issues in writing advice that approval has been granted for a six month trial of access by Restricted Access Vehicles up to 27.5 metres in length to Tennant Street, Welshpool, between Tate Street and the westernmost crossover of Nos 31 39 Tennant Street, Welshpool, or some equivalent form of access to this same length of Tennant Street by these Restricted Access Vehicles.
(c)If such an approval has not been issued by the Commissioner of Main Roads within two years of the date of this decision, then the planning approval for the crossover widening will lapse.
(d)The crossover is to be built to the specifications and satisfaction of the City of Canning consistent with Policy ET501 Road Facilities Standard Crossings.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER