D'ORAZIO ENTERPRISES PTY LTD and CITY OF STIRLING
[2016] WASAT 99
•17 AUGUST 2016
D'ORAZIO ENTERPRISES PTY LTD and CITY OF STIRLING [2016] WASAT 99
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 99 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:131/2015 | 22 MARCH, 18 AND 19 MAY 2016 | |
| Coram: | MR P McNAB (SENIOR MEMBER) MR P DE VILLIERS (MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) | 17/08/16 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Application for review upheld; conditional approval given | ||
| A | |||
| PDF Version |
| Parties: | D'ORAZIO ENTERPRISES PTY LTD CITY OF STIRLING |
Catchwords: | Town planning Development application Reconfigured butcher's shop Past problems of access to site New vehicle access proposals supported by Main Roads (WA) Whether Main Roads' expert evidence unduly influenced by Main Roads' policies and preferences for State transport Tribunal accepting Main Roads' evidence as sound Planning and traffic evidence indicating conditional approval for proposed development warranted Local Government raising noise impact issue but not calling expert evidence in rebuttal Observations by Tribunal on necessity of Local Governments calling expert evidence on any issue in contention Assessment by Tribunal of the 'net benefit' of proposals Tribunal's task to look for beneficial, practical, and real planning improvements Tribunal rejecting 'clean slate' approach to assessing proposals Tribunal inviting reconsideration by Local Government Observations by the Tribunal on the purpose of the Tribunal stating its provisional views Words and phrases: 'clean slate'; 'history of the site'; 'net benefit' |
Legislation: | City of Stirling Local Planning Scheme No 3, cl 4.3.3 Environmental Protection (Noise) Regulations 1997 (WA), reg 14A Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67(w), Sch 2 Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 31 |
Case References: | Coastal Midwest Transport and City of Canning [2012] WASAT 202 Cole and Western Australian Planning Commission [2014] WASAT 102 Cufari and Mildura Rural City Council [2005] VCAT 1979 D'Orazio Enterprises Pty Ltd and the City of Stirling [2012] WASAT 219 D'Orazio Enterprises Pty Ltd and the City of Stirling [2013] WASAT 152 Evans and Town of Cambridge [2016] WASAT 64 Fabbian v Minister for Environment and Natural Resources (No 2) [1998] SAERDC 506 Freeman and Freeman Land Surveyors v Mildura Rural City Council (2005) 21 VPR 88 Garrett v Freeman (No 3) [2007] NSWLEC 139 Haber v Shire of Surfcoast [2006] VCAT 1008 Hancock v State of Queensland [2000] QSC 469 Healthscope Limited v Knox City Council [2014] VCAT 818 Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212 McDowall v Reynolds [2015] QLC 32 Re National Gallery of Victoria and Collector of Customs [1984] AATA 531; (1984) 7 ALN N9 Taniti Pty Ltd v Stonnington City Council [2005] VCAT 1023 Theologidis v Council of the Shire of Caboolture [1994] QPLR 301 VCA v Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 Versteegen v Benalla Rural City Council [2011] VCAT 1603 |
Summary | The applicant company operates a butcher shop and trades as 'Meat Lovers Paradise' in Wanneroo Road, Yokine. For some years, the applicant had sought to reconfigure its operations on the site. In 2013, the applicant failed in this Tribunal to overturn the City of Stirling's refusal of planning permission. One of the reasons for refusal related to access to the site from Wanneroo Road. Main Roads (WA) had not supported the 2013 Wanneroo Road access proposal. Wanneroo Road was a State road within Main Roads' jurisdiction.,The applicant produced various revisions of its proposals and, by 2016, the Tribunal, following a further rejection by the City in 2015, had before it a 'radically improved' proposal to that of 2013. Main Roads supported the proposed vehicle access arrangements. Ultimately, the City's officers supported conditional approval. Despite the Tribunal's provisional indication to the City of the strength of the applicant's case (and a consequential invitation to the City to reconsider its position) the review proceeded to trial and conditional approval was given by the Tribunal.,The Tribunal considered that, overall, the expert planning, traffic, and noise impact evidence favoured the applicant's position. The Tribunal rejected the City's position that Main Roads' experts were unduly influenced by Main Roads' transport policies and their preferences for State roads and State transport. The Tribunal held that Main Roads was best placed to inform the Tribunal both of any relevant traffic consideration and best practice when making a judgment on access to a site when undertaken from a State road. Unsurprisingly, Main Roads was, the Tribunal noted, 'frequently consulted by planning authorities on such issues'.,The Tribunal was critical that the City had chosen not to call an expert noise witness of its own, but had nevertheless sought to cross-examine the applicant's noise expert at length about one, possibly marginal, factor on noise measurement based upon the expert's interpretation of the Noise Regulations. The Tribunal pointed to the desirability of informed dialogue between experts who had previously jointly conferred, with relevant cross-examination to follow. This position was to be 'greatly encouraged, if not insisted upon, for the efficient disposal of planning cases'. Costs orders might follow a failure to follow this practice. The applicant's noise expert's evidence was fully accepted by the Tribunal.,The City agreed that the 'net benefit' of the proposal and the history of the site were relevant factors in whether approval should be given. However, the City sought to advance an argument to the effect that existing problems with access to the site should be taken into account in assessing the development proposal. Consideration should be given, so the City submitted, to a better design and use of the whole site, not one constrained by overcoming those existing problems. This was, in effect, a call for the Tribunal to apply a 'clean slate' view of the development. The Tribunal rejected that view adopting the position taken in Victoria that 'the role of the Tribunal in assessing the proposal is to determine whether or not the development as proposed is satisfactory and not whether there are other design responses that may have been preferable'.,The Tribunal held that planning law permits, if not requires, regard to be had to the full history of the site and the existing situation on the site in the context of proposed development without any artificial limitations on that task. The aim was, amongst other things, to look for beneficial, practical, and real planning improvements, given a particular state of affairs with respect to the site.,The review was accordingly upheld. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : D'ORAZIO ENTERPRISES PTY LTD and CITY OF STIRLING [2016] WASAT 99 MEMBER : MR P McNAB (SENIOR MEMBER)
- MR P DE VILLIERS (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - Reconfigured butcher's shop - Past problems of access to site - New vehicle access proposals supported by Main Roads (WA) - Whether Main Roads' expert evidence unduly influenced by Main Roads' policies and preferences for State transport - Tribunal accepting Main Roads' evidence as sound - Planning and traffic evidence indicating conditional approval for proposed development warranted - Local Government raising noise impact issue but not calling expert evidence in rebuttal - Observations by Tribunal on necessity of Local Governments calling expert evidence on any issue in contention - Assessment by Tribunal of the 'net benefit' of proposals - Tribunal's task to look for beneficial, practical, and real planning improvements - Tribunal rejecting 'clean slate' approach to assessing proposals - Tribunal inviting reconsideration by Local Government - Observations by the Tribunal on the purpose of the Tribunal stating its provisional views Words and phrases: 'clean slate'; 'history of the site'; 'net benefit'
Legislation:
City of Stirling Local Planning Scheme No 3, cl 4.3.3
Environmental Protection (Noise) Regulations 1997 (WA), reg 14A
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67(w), Sch 2
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review upheld; conditional approval given
Summary of Tribunal's decision:
The applicant company operates a butcher shop and trades as 'Meat Lovers Paradise' in Wanneroo Road, Yokine. For some years, the applicant had sought to reconfigure its operations on the site. In 2013, the applicant failed in this Tribunal to overturn the City of Stirling's refusal of planning permission. One of the reasons for refusal related to access to the site from Wanneroo Road. Main Roads (WA) had not supported the 2013 Wanneroo Road access proposal. Wanneroo Road was a State road within Main Roads' jurisdiction.
The applicant produced various revisions of its proposals and, by 2016, the Tribunal, following a further rejection by the City in 2015, had before it a 'radically improved' proposal to that of 2013. Main Roads supported the proposed vehicle access arrangements. Ultimately, the City's officers supported conditional approval. Despite the Tribunal's provisional indication to the City of the strength of the applicant's case (and a consequential invitation to the City to reconsider its position) the review proceeded to trial and conditional approval was given by the Tribunal.
The Tribunal considered that, overall, the expert planning, traffic, and noise impact evidence favoured the applicant's position. The Tribunal rejected the City's position that Main Roads' experts were unduly influenced by Main Roads' transport policies and their preferences for State roads and State transport. The Tribunal held that Main Roads was best placed to inform the Tribunal both of any relevant traffic consideration and best practice when making a judgment on access to a site when undertaken from a State road. Unsurprisingly, Main Roads was, the Tribunal noted, 'frequently consulted by planning authorities on such issues'.
The Tribunal was critical that the City had chosen not to call an expert noise witness of its own, but had nevertheless sought to cross-examine the applicant's noise expert at length about one, possibly marginal, factor on noise measurement based upon the expert's interpretation of the Noise Regulations. The Tribunal pointed to the desirability of informed dialogue between experts who had previously jointly conferred, with relevant cross-examination to follow. This position was to be 'greatly encouraged, if not insisted upon, for the efficient disposal of planning cases'. Costs orders might follow a failure to follow this practice. The applicant's noise expert's evidence was fully accepted by the Tribunal.
The City agreed that the 'net benefit' of the proposal and the history of the site were relevant factors in whether approval should be given. However, the City sought to advance an argument to the effect that existing problems with access to the site should be taken into account in assessing the development proposal. Consideration should be given, so the City submitted, to a better design and use of the whole site, not one constrained by overcoming those existing problems. This was, in effect, a call for the Tribunal to apply a 'clean slate' view of the development. The Tribunal rejected that view adopting the position taken in Victoria that 'the role of the Tribunal in assessing the proposal is to determine whether or not the development as proposed is satisfactory and not whether there are other design responses that may have been preferable'.
The Tribunal held that planning law permits, if not requires, regard to be had to the full history of the site and the existing situation on the site in the context of proposed development without any artificial limitations on that task. The aim was, amongst other things, to look for beneficial, practical, and real planning improvements, given a particular state of affairs with respect to the site.
The review was accordingly upheld.
Category: A
Representation:
Counsel:
Applicant : Mr P McQueen
Respondent : Mr P Wittkuhn
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Coastal Midwest Transport and City of Canning [2012] WASAT 202
Cole and Western Australian Planning Commission [2014] WASAT 102
Cufari and Mildura Rural City Council [2005] VCAT 1979
D'Orazio Enterprises Pty Ltd and the City of Stirling [2012] WASAT 219
D'Orazio Enterprises Pty Ltd and the City of Stirling [2013] WASAT 152
Evans and Town of Cambridge [2016] WASAT 64
Fabbian v Minister for Environment and Natural Resources (No 2) [1998] SAERDC 506
Freeman and Freeman Land Surveyors v Mildura Rural City Council (2005) 21 VPR 88
Garrett v Freeman (No 3) [2007] NSWLEC 139
Haber v Shire of Surfcoast [2006] VCAT 1008
Hancock v State of Queensland [2000] QSC 469
Healthscope Limited v Knox City Council [2014] VCAT 818
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212
McDowall v Reynolds [2015] QLC 32
Re National Gallery of Victoria and Collector of Customs [1984] AATA 531; (1984) 7 ALN N9
Taniti Pty Ltd v Stonnington City Council [2005] VCAT 1023
Theologidis v Council of the Shire of Caboolture [1994] QPLR 301
VCA v Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236
Versteegen v Benalla Rural City Council [2011] VCAT 1603
Introduction
1 The applicant company owns and operates 'Meat Lovers Paradise', a butcher's shop (Meat Lovers) located on Wanneroo Road, Yokine in the City of Stirling.
2 For some time, Meat Lovers has attempted the redevelopment of its site. The applicant has often been met with opposition from the City of Stirling (respondent). On review in 2013, such opposition was upheld by the Tribunal (see below). However, as Mr McQueen, counsel for Meat Lovers, noted, there had been 'support [for his client] on occasions from the mayor, [and] support from officers along the way …' (T:6; 22.03.16). Indeed, as may be seen below, here the respondent's officers supported conditional approval for the applicant's proposed development.
3 In D'Orazio Enterprises Pty Ltd and the City of Stirling [2012] WASAT 219, the Tribunal first determined, as a preliminary matter, that Meat Lovers' original proposal for redevelopment (the 'extended use of a butcher's shop') was capable of constituting a lawful 'shop' use under the City of Stirling Local Planning Scheme No 3 (LPS 3). Thereafter, D'Orazio Enterprises Pty Ltd and the City of Stirling [2013] WASAT 152 (D'Orazio) determined that the original proposal, on its merits, warranted refusal of development approval.
4 An important element in that refusal was the interface of the redevelopment on its western side with Wanneroo Road. The same issue arises in this review but, notably, as will be seen below, the applicant has attempted, ultimately successfully, significant modifications of these interface arrangements to accommodate the respondent's concerns.
5 In D'Orazio, the Tribunal noted, at [105] and [108]:
The traffic experts agreed that truck access movements to the western loading dock [off Wanneroo Road] are, and will remain, a risk to vehicle traffic and pedestrian safety. The proposed development incorporates [an] extension of the loading dock to reduce the incidence of conflict with traffic on Wanneroo Road and the footpath, but does not solve the problem of trucks reversing off the road carriageway …
[There being] doubt as to the future frequency of deliveries, it is apparent that the function of the western loading dock remains an unsatisfactory risk to traffic and pedestrian safety. The benefits of the modified loading dock are, at best, marginal if the static or modestly reduced frequency of deliveries occurs. The Tribunal is not, however, convinced that, in the circumstance of a substantially increased scale of enterprise, the applicant's intentions to hold steady or reduce the frequency of deliveries to the western loading dock can be practically guaranteed.
6 Unlike the case here, in D'Orazio Main Roads (Western Australia) (MRWA) had 'advised … that it did not support the [development] application': D'Orazio at [29]. Wanneroo Road is a State road within the administrative jurisdiction of MRWA.
7 Also at issue in D'Orazio was whether the development proposal 'represent[ed] an improved and better outcome than the existing situation'. The Tribunal held that it did not: D'Orazio at [135].
8 As is seen below, broadly speaking, this second issue (that is, the improvement, if any, on what is currently on site) would also return as a central issue in this review.
The subject land and relevant planning controls
9 For convenience of reference, we reproduce from D'Orazio the subject land's site description and the essential planning controls. The subject land and its context were identified in D'Orazio, at [7] [14], as follows:
The land the subject of this review is an oblong shaped commercial property of 1,449 square metres in area. The land has an approximately 33 metre western frontage to Wanneroo Road and a 14 metre eastern boundary to Frape Avenue at the rear. The land slopes downwards from Frape Avenue which enjoys an elevation some 5 metres above the Wanneroo Road frontage of the land.
Two separate buildings occupy the land. The northern building is used as a butcher's shop trading as 'Meat Lovers Paradise' … The southern building was used as a restaurant but ceased trading several years ago … Both buildings have parking provision and customer access from Wanneroo Road, and obtain service and goods delivery access from Frape Avenue. Meat Lovers has a floor area of 297.9 square metres. The vacant restaurant has a floor area of 258.7 square metres.
Wanneroo Road in the vicinity of the land is generally developed with commercial premises. Frape Avenue to the north of the land is of north/south orientation but turns sharply east/west, such that it forms a right angled corner at the rear boundary of the land the subject of this review. Properties to the east and south of Frape Avenue in the vicinity of the land are residential, although along its north/south section, Frape Avenue provides limited access to commercial properties fronting Wanneroo Road.
10 To this description may be added the following observations of Mr Jeremy Hofland, found in his witness statement in these proceedings. Mr Hofland is a town planner engaged by the applicant. He noted that (emphasis added):
Portion of the Wanneroo Road frontage of the [subject land] was resumed for road widening purposes in 1986. For reasons unknown to me, the land upon which the existing shop front is located was not resumed, resulting in an irregular lot alignment to Wanneroo Road …
11 The essential planning controls in relation to the subject land remain the same as in 2013 and are taken from D'Orazio, at [21] [27], as follows:
The land is zoned Urban under the Metropolitan Region Scheme (MRS). The portion of the land fronting Wanneroo Road is reserved for a primary region road … The land is zoned Local Centre under [City of Stirling Local Planning Scheme No 3 (LPS 3)]. In accordance with cl 4.2.7 of LPS 3, the objectives of the Local Centre zone are:
a. To provide for a limited range of small scale retail, commercial and community facilities to meet day to day needs of the immediate neighbourhood.
b. To ensure safe and convenient access to facilities, in an environment which is conducive to pedestrian movement.
c. To ensure development is sited and designed so as to reinforce a sense of place and attractive streetscapes.
Under LPS 3 the use classification of 'shop' means 'premises used to sell goods by retail, or hire goods, but does not include a showroom or fast food outlet'.
Clause 4.3.3 of LPS [3] and associated notes 1 and 2 provide [the] criteria for the permission of a change of use of land from one use to another.
The respondent has adopted the following policies relevant to this review:
• City of Stirling Local Planning Policy 6.2 Bicycle Parking (LPP 6.2)
• City of Stirling Local Planning Policy 6.7 Parking and Access (LPP 6.7)[.]
12 It should also be noted that a 'Shop' use is a 'P' use in the Local Centre Zone. Clause 4.3.3 of LPS 3, dealing with a change of use, provides as follows:
4.3.3 A change in the use of land from one use to another is permitted, if -
(a) the Council has exercised its discretion by granting planning approval;
(b) the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in Table 1 Zoning Table and the proposed use complies with all relevant development standards of the scheme;
(c) the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot; or
(d) the change is to an incidental use that does not change the predominant use of the land.
… Regulation 10(4) of the LPS Regulations provides that Sch 2's 'deemed provisions' are applicable to all local planning schemes [such as LPS 3, here], 'whether or not they are incorporated into the local planning scheme text'. In short, the 'deemed provisions' apply to the extent that there is any inconsistency between a town planning scheme and Sch 2.
One of these 'deemed provisions' is cl 67 of Sch 2 which provides that a decisionmaker is to have 'due regard' to the following matters in making planning decisions (so far as they appear relevant to the current matter):
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) […];
(c) any approved State planning policy;
…
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
...
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
...
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
(s) the adequacy of
(i) the proposed means of access to and egress from the site; and
(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
...
(w) the history of the site where the development is to be located;
(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y) any submissions received on the application;
…
(zb) any other planning consideration the local government [or Tribunal] considers appropriate.
14 For the reasons appearing in Evans, these specified matters set out above apply in lieu of any matter similarly specified in LPS 3.
History of the applicant's proposal
15 On 28 November 2015, the applicant lodged a development application with the respondent seeking approval for alterations and additions to the existing Butcher's Shop and a change of use from 'Restaurant' to 'Shop'. In summary, the proposed development was comprised of the following elements:
• The demolition of the existing retail shop, preparation room, cool room, and staff room adjacent to Wanneroo Road.
• The relocation of the retail shop into the southern portion of the building previously occupied by the restaurant.
• The area of the proposed development was proposed to be 454m2.
• Seven car parking bays were to be provided adjacent to Wanneroo Road.
• A loading bay would be provided adjacent to the car bays at the northern end of the site.
• The ground level at the rear of the site would be filled to a maximum height of 3.8 metres.
• Nine car parking bays were to be constructed on the filled area and a new bin area would be provided between these and the existing building.
• The existing loading area at the rear of the building would be retained.
16 Following a decision by the respondent to refuse the development application, a review was commenced in this Tribunal. The grounds of refusal were broadly as are reproduced below in relation to the amended proposal but included a complaint that 'the proposed development is an underdevelopment of the site'. This formal ground has not resurfaced. However, we note that Mr Wittkuhn, counsel for the respondent, on 22 March 2016, placed on record the respondent's position that '[we] have a [site here] which is, [the respondent] say[s], bursting at the seams with one unit under-occupied but the site is appropriately sited for a range of other redevelopment opportunities[.]' Mr McQueen, counsel for the applicant, responded as follows:
[T]his isn't a comparison between what exists now and what [my client] propose[s] because, of course, with the greatest of respect to the tribunal, the duty of the tribunal is to assess the proposal before it. There is absolutely no evidence suggesting that we are going to leave the site or [that] we are incapable of operating at the site. We have a lawful approval and we continue to operate with the benefit of that approval and our intention would be, regrettably, if we were to fail [in] this proceeding, not to move [premises] but to continue with the current operation and I would say that's the basis upon which the tribunal must proceed, which is to assess what's before it[.]
(T:6; 22.03.16)
17 We will return to this debate between counsel, below.
18 Mediation conducted in the Tribunal produced amended sketch plans that were provided to the respondent on 29 May 2015. In response to an invitation to the respondent by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) to reconsider its decision, the respondent, on 18 August 2015, resolved once again to refuse the proposed development. This was for the following reasons:
(a) The proposed development does not meet objective b) [in cl] 4.2.7 of [LPS 3] (Objectives of the Local Centre Zone) [reproduced above], which is to ensure safe and convenient access to facilities, in an environment which is conducive to pedestrian movement, as the proposed truck manoeuvring from Wanneroo Road will create a significant hazard for pedestrians;
(b) The proposed development is contrary to the requirements of orderly and proper planning and the preservation of [the] amenity of the locality by reason of [the] failure to demonstrate that the application adequately addresses issues related to noise and waste disposal;
(c) The proposed development does not meet objective b) of [LPP 6.7 dealing with parking and access] which is to ensure safe, convenient and efficient access for pedestrians, cyclists and motorists as the proposed crossovers will compromise pedestrian safety on Wanneroo Road; and
(d) The proposed development does not comply with [cl] 10.2 [of LPS 3, dealing with matters to be considered by the respondent, now see the LPS Regulations referred to above] as the proposed means of access to, and egress from the site are inadequate. Insufficient provision has been made for the loading, unloading, manoeuvring and parking of vehicles associated with the development as the proposed crossovers are inadequate to provide for the manoeuvring of trucks from Wanneroo Road.
19 The matter proceeded to trial on 22 March 2016 before a threemember panel of the Tribunal comprising a lawyer (Senior Member P McNab), an architect/planner (Member Mr P de Villiers) and an engineer (Senior Sessional Member Mr R Affleck).
20 After a review of the evidence filed to date, the Tribunal, on 22 March 2016, itself placed before the parties, in writing, the following interim response to the state of the evidence. The response sought to draw attention, in a provisional way, to some issues, identified originally by the respondent, that had either apparently fallen away or had not yet been adequately addressed.
21 The Tribunal's position, shown below in italics, was as follows:
Issue 1: Pedestrian Safety and Amenity
[The respondent's] Crossover Guidelines['] requirement for minimum width of [the] pedestrian refuge between crossovers of 3 metres.
[The applicant's relevant drawing] dated 11 February 2016 suggests this requirement has been met.
… Vehicles enter the northern crossover at an oblique angle at a speed unsafe for pedestrians using footpath
Addressed by the evidence of the traffic experts.
… Commercial vehicles [are] unable to track within combined crossovers
[The applicant's relevant drawing] dated 11 February 2016 suggests [that] this is not the case.
Issue 2: Character and Amenity
Frontage visually dominated by driveways, vehicle manoeuvring, parking and vehicle-related facilities.
[The respondent's expert planner, Mr Ray Haeren's] Witness Statement appears [to be] the only evidence in regard to the issue. [That evidence] suggests [that] the pedestrian cover is being removed. However, the [latest] architectural drawings … [dated 6] June 2015 indicates [that] a new canopy is proposed[.]
Issue 3: Vehicle Collision Risks
Vehicles intending to enter the subject site via the proposed northern crossover would frequently need to stop within the Wanneroo Road carriageway to accommodate pedestrians. This would create an unacceptable risk of rear-end collisions.
Both Witness Statements of [Mr] Jonathan Offer [the respondent's traffic engineer] set out … eight 'problems' with the design. These do not include issue 3.
Issue 4: Noise
[The applicant] has not provided a Noise Report.
Applicant has now provided the report. The respondent has not sought to call a noise expert.
Issue 5: Waste Management
[The applicant] has not provided a Waste Management Report relatable to the development proposed.
Applicant has now provided a report. The respondent has not sought to call a waste management expert.
22 More importantly, the Tribunal's review of the proposed evidence filed to date also led it to express a provisional view, both in chambers with counsel and on the record, a view that acknowledged the apparently significant improvement on what had previously been put forward by the applicant (and acceptance thereof by various experts).
23 We cannot overstate the importance of the Tribunal engaging in such direct indications after an interim review of the proposed evidence. Such case management is particularly directed towards the efficient disposition of cases, such as this, where a respondent local authority is faced with considerable evidence of the improvement of proposals or likely approval or, as here, both scenarios. Cf Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212. We further note these observations on expressing provisional views from Lloyd J in a planning case in the New South Wales equivalent to this Tribunal. Entirely consistent with other authority dealing with modern civil practice cited by his Honour, Lloyd J, in Garrett v Freeman (No 3) [2007] NSWLEC 139 at [37], said:
[It] has always been my practice to avoid being Sphinx-like and to express my thinking about the case or about the evidence, often quite forcefully.
24 Here, the Tribunal provisionally concluded that, on balance, although what was proposed by the applicant was not by any means 'a perfect proposal', overall 'it would seem to be an improvement on the development' that currently exists on the subject land. There was nothing in the material filed to date 'that suggested to us that if that position held [at final hearing] … that it wouldn't be approved on that basis'. We went on to observe:
[The Tribunal] always thought [that] the real issue would be traffic matters in terms of access to Wanneroo Road. It's clear from the … very latest [traffic engineers'] report – and [the Tribunal is also] dealing with the latest iteration of the plans, which have all indicated some improvement on each attempt by the applicant to meet the respondent's genuine concerns[;] [o]n the traffic matter[s], the latest joint position of the experts, apart from the [respondent's] engineer [Mr Offer], … is … very clear [that] in their opinion … this [is] an improvement on access [on] what's there and it's not objectionable in terms of engineering principle.
… We indicated [that] in the light of these provisional views that we thought Mr Wittkuhn should get some instructions and we also indicated to Mr Wittkuhn that we were [also] very much minded to reserve the question of costs. [The] combined effect of all of these things is that we thought one way forward, the better way, would be for the [respondent] to go back and look at what is a very, very radically improved proposition from where this started many years ago, particularly in light of the very great improvements indicated for traffic and layout on the site, particularly in terms of fixing up some longstanding amenity concerns for neighbours living at the rear. That is what has been suggested in the material [filed to date].
(T:23; 22.03.16)
25 In the event, the Tribunal did not reserve on the question of costs but we did once again invite the respondent, by order dated 22 March 2016, to reconsider what we thought appeared to be a 'radically improved' position for the subject land, particularly in the light of considerable road traffic expert evidence supporting the access regime proposed from Wanneroo Road. It was, and remained the case, that the access situation from Wanneroo Road was a critical issue in the case and that on the state of the proposed evidence filed by or on behalf of the parties to that point, this issue had substantially advanced in the applicant's favour.
26 Amongst other things, Mr Wittkuhn noted two relevant matters: first, that the proposal was indeed significantly different from previous proposals; and, relatedly, that all parties were dealing with a proposal that effectively amounted to 'a "moveable feast" … [by reason of the] various iterations of the application in the lead up to the hearing' (cf Versteegen v Benalla Rural City Council [2011] VCAT 1603 embracing that description, at [6]). We, of course, agree with these observations.
27 The orders of the Tribunal from 22 March 2016 were accordingly as follows:
1. The Tribunal having indicated certain provisional views, the respondent is invited to reconsider its decision under review, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
2. The reconsideration is to take place on 17 May 2016 upon the latest revised proposal lodged by the applicant.
3. The Tribunal reserves 18-19 May 2016 for further hearing (if necessary).
28 We also indicated that if the matter proceeded to trial then the Tribunal would use its best endeavours to expedite both the hearing and, if possible, the delivery of our final decision, given the relatively long history of the matter in the approvals process.
29 In the final result, after a fuller testing of the evidence, the Tribunal's provisional views held fast (unsurprisingly perhaps, given the state of the evidence) and, after a resumed hearing in May 2016, the following orders were made by the Tribunal (on 19 May 2016):
1. For the reasons given by the Tribunal in brief (further, more detailed reasons to be published in due course), the Tribunal allows the review.
2. In lieu of the decision under review (which is set aside), there will be substituted a grant of planning approval upon certain conditions with effect from 19 May 2016 permitting the proposed development to proceed generally in accordance with the plans, drawings and associated specifications, as filed in the review on 18 May 2016.
3. The parties are directed to continue negotiations in good faith to bring in, within 21 days, a final and consolidated set of agreed conditions, to be attached by further Order of the Tribunal to the grant of planning approval set out above. Where such agreement is not forthcoming, the Tribunal shall determine the same (including where necessary sending the matter, in the first instance, to mediation).
4. The question of costs, if any, is reserved for 60 days.
5. Liberty to apply is reserved for 21 days.
30 As indicated, the Tribunal gave brief reasons for reaching that position, foreshadowing that fuller reasons for our decision, not inconsistent with the Tribunal's summary, would be published in due course.
31 Before turning to those reasons, we should note that this review has been characterised, as has already been remarked upon, by constant revisions of the plans and drawings (and conditions) undertaken by the applicant's expert advisers, generally in response to matters raised by the respondent. Notwithstanding such revisions, the experts' material evidence and their conclusions, captured at various points, remain essentially valid, even if the precise design details have altered over time, usually by further improvement.
32 We gave conditional approval to the proposed development for the reasons that follow.
Planning and traffic (access) issues
33 First, we accepted the planning and traffic evidence that indicated that the proposed development was acceptable within the terms of the existing planning framework. This is evidenced, in part, by the reconsideration by the respondent on 17 May 2016, where the respondent's planning officers recommended approval, as follows:
The [development application] has been assessed against the statutory planning framework. For the reasons identified in this report, the proposed development satisfies the requirements of the statutory planning framework and is considered to satisfy the requirements of orderly and proper planning. The application is therefore recommended for approval subject to conditions and waiving of the parking shortfall.
The recommended conditions of approval are considered to address the previous concerns raised by the City relating to access, pedestrian safety, noise and waste disposal and neighbouring amenity. The conditions will ensure that the proposal satisfies the requirements of the statutory planning framework, the requirements of orderly and proper planning and the preservation of amenity within the locality.
(City of Stirling, Minutes, 17 May 2016, at page 294 and page 295)
34 On the question of access from Wanneroo Road, the Minutes note the following observations of the respondent's officers (at pages 283 284):
Engineering Design comments
Previous submissions by the applicant have resulted in the removal of the normal constraints relating to speed and pedestrian safety encountered by vehicles utilising a compliant crossover that is normal to the direction of travel. This has arisen as a result of accommodating large 12.5 [metre] trucks which can only enter and exit the subject site at an oblique angle.
The latest designs provide the maximum possible raised paved footpath areas which reinforce the pedestrian environment. Together with the raised kerbing and rumble strip (which is intended to constrain the speeds of light vehicles utilising the crossover) Engineering Design consider that the visual appearance and physical functions of the footpath and related crossovers provide a pedestrian environment that is as safe as two compliant crossovers permit while accommodating the movement of large trucks.
Accordingly the revised access arrangements which facilitate the ability to legally access, unload within, and exit the site, are a significant improvement on the existing arrangements which can only function by obstructing the footpath and/or the adjacent property. Furthermore the removal of the projection of the existing shop front into the MRS Road Reservation enables the footpath to be provided at a consistent width across the site frontage.
The previous comments received from other internal business units relating to the previous refusal are still valid and have been addressed via the submission of amended plans and through the imposition of conditions of approval.
35 Mr Ray Haeren is an experienced town planner. He was engaged by the respondent to provide expert advice and he provided a witness statement for the hearing but on some issues at least, his views had been effectively overtaken by events. Thus, in answers to questions posed by the Tribunal, Mr Haeren fairly conceded the impact of the officers' report (see above) in light of the revised proposals submitted by the applicant.
36 Mr Haeren expressed only one remaining (direct) planning concern and that related to the legibility of access to the new shop. He did raise the issue of noise regulation, but that issue is, in our view, principally resolved by a consideration of the evidence of the only noise expert called in the matter (that is, Mr Tim Reynolds, engaged by the applicant). This matter is considered below.
37 On legibility of access, Mr Haeren expressed concern that 'there is still the element around [of] how pedestrians enter into the shop, particularly if they're not parking in the car park …' (T:66; 19.05.16) (joint oral evidence of Mr Haeren and Mr Hofland). However, in response to questions from the Tribunal, he conceded that the matter could be regulated by conditions:
[THE TRIBUNAL]: But you still think that there may be some scope for refusal based on these two matters you [have] identified as being still of concern. Is that your position?
WITNESS, [HAEREN]: Well, in my statement, what I have clarified is it also depends on what the tribunal accepts in [relation to] certain items, and that particularly relates to the area around noise and the area around … traffic movement. So should the tribunal [accept] the [applicant's] proposition from that point of view, then I would accept that then this is suitably managed through conditions. If the tribunal should find that that not be the case, then obviously it would be hard to see how you could adjust it further within the confines [of the site].
[THE TRIBUNAL]: So you're saying that this is acceptable if there are other constraints on the site that mean that this is the only reasonable form of access. It would be - - -
WITNESS, [HAEREN]: That's correct.
[THE TRIBUNAL]: Right. Mr [Hofland], presumably you agree with that.
WITNESS, [HOFLAND]: Yes.
(T:68; 19.05.16)
38 Importantly, Mr Haeren properly conceded that the officers' position was supportable as it was 'within the range of possibilities' (T:68, 80; 19.05.16).
39 In our view, there are insufficient grounds to warrant refusal of the applicant's proposal on grounds of inconsistency with the planning framework. Rather, the thrust of all of the planning experts' evidence points to the suitability of conditional approval based upon the latest design plans.
40 We turn to the expert material relating to traffic and access issues.
41 The applicant engaged Mr Benham Bordbar, the founder of Transcore and an experienced specialist traffic engineer. The respondent relied upon its traffic engineer Mr Jonathan Offer who is employed as a 'Special Projects and Support Engineer (Urban Design)'. The Tribunal also heard from two specialist traffic engineers employed by MRWA. These were Messrs Ashis Parajuli and Zelko Zagorac. All of the engineers conferred together and gave joint oral evidence. Apart from Mr Offer, all of the other engineers supported the final designs for the development in relation to access from Wanneroo Road as generally meeting appropriate standards for access and road and pedestrian safety. Mr McQueen properly noted, however, that Mr Offer 'very helpfully improved the situation in relation to pedestrian safety, refuge, [and] rumble strip treatment'.
42 The Tribunal attaches significant weight to the views of the specialist engineering regulator of State roads in Western Australia, that is MRWA. We do not accept Mr Wittkuhn's concerns that such evidence may somehow be tainted because it is given through the prism of MRWA's policy settings and preferences. On the contrary, MRWA is best placed to inform the Tribunal of the relevant considerations and best practice when making a judgment on access to the subject land when undertaken from a State road. Accordingly, MRWA is frequently consulted by planning authorities on such issues. For an example of the significant interplay between planning and, in that case, MRWA's vehicle regulation jurisdiction, see Coastal Midwest Transport and City of Canning [2012] WASAT 202. In Cole and Western Australian Planning Commission [2014] WASAT 102, a central issue was vehicular access to a regional road and, unsurprisingly, full consideration was given to MRWA's position.
43 We provide the following summary of the traffic evidence and our conclusions.
44 The proposal before the Tribunal is one in which the currently visiting standard trucks (12.5-metre in length and up to, say, 22.5 tonne) can enter the site without reversing onto the road. Similarly, they can exit the site without reversing onto the road. Within the bounds of the site, trucks can also manoeuvre for entering, unloading and departing from the site.
45 MRWA controls access into and from Wanneroo Road, but this is done in cooperation with the relevant Local Government authority. Control of access extends to the 'approval' of the design of driveways. MRWA has adopted various standards, and produced guidelines and policies. Such standards include the Guide to Road Design (June 2015 revision) which is described by MRWA as their 'preferred practice'. Section 3.3 thereof deals with 'New Driveways'.
46 On its face, the proposal does not comply with the Guide to Road Design (see cl 3.3.1) in that generally, subject to some specific cases (such as 'regional shopping centres [and] service stations'), a development 'will only be permitted [to have] one driveway onto a State road'. Wanneroo Road is such a 'State road'.
47 However, for the reasons that follow, the proposal does comply with the Guide to Road Design in the following respects:
3.3.2 Internal Turn Around Facility
A new driveway shall incorporate an internal turn around facility or area that enables vehicles to turn around and exit the driveway in a forward direction onto a State road. A modified driveway should include provision of a turn around facility.
3.3.3 Location
Driveways shall be carefully located to avoid the creation of a hazard to the through movement of traffic, pedestrian and cyclists, and to minimise damage to road verge vegetation.
The driveway and its turnout radii shall be contained within the frontage of the lot defined by extension of the lot's side boundaries to the road pavement.
Driveways should be located as far as practical from intersections to minimise points of conflict and confusion and to improve safety …
… Where driveways are to be used by large combination vehicles the turnout radii shall be increased to meet the required design turning template of the larger vehicles.
Driveways should be as near to 90º to the road centreline as site conditions will permit. In special circumstances this may be reduced to an absolute minimum of 70º to the road centre line.
48 The MRWA engineers noted that the presently occurring vehicle manoeuvres (such as turning across lanes and reversing into the site) are 'as of right', permitted manoeuvres. They also noted that the use of such 12.5-metre trucks is encouraged by MRWA as it reduces the number of vehicles on the road. Therefore, they were considered by MRWA to be 'high productivity vehicle[s]'.
49 The MRWA engineers told the Tribunal that the proposed driveway meets the main objective of vehicles entering and exiting roads in forward gear and not in reverse gear. That is, relatively safe entry and exit is provided for all road users. Notwithstanding that two driveways are generally to be avoided, such development could be permitted in this case because, in summary:
• On the present building design, it is needed to achieve the main objective of appropriate access;
• It provides one way traffic flows which reduces conflicts and accidents; in fact, MRWA is increasingly approving one-way driveway systems (that is, driveways with both entry and exit);
• The centreline angle of the driveway, whilst not meeting the ideal 90º standard (see above) is nevertheless within the allowable limit, particularly as the centreline angle is not likely to lead to vehicles speeding, because the run on distance within the property is very short and obvious; and
• Adequate protection for pedestrians exists with a legible pedestrian refuge between the in and out crossovers.
50 In the Tribunal's view, based upon the evidence set out above, the applicant's proposal is a considerable improvement on present arrangements because:
a) forward entry and exit is achieved;
b) wholly within site vehicle manoeuvring is achieved;
c) adequate provision is made for the safety of other road users; and
d) the proposal has the endorsement of the expert regulators who generally control access onto and off Wanneroo Road.
Noise
51 This issue, raised by the respondent, mainly concerned the amenity impact, if any, on rear properties located on Frape Avenue. Regrettably, the respondent declined to place any expert evidence on this issue before the Tribunal. The applicant, however, engaged Mr Tim Reynolds from Herring Storer Acoustics. Mr Reynolds' written report was supplied to the respondent in November 2015. His opinion, after modelling and on site investigation, was that with a proposed modification to the reduction in gradient of the ramp to the rear dock loading area, 'noise emissions from the development would comply with the requirements of the [Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations)]'.
52 We understand that it is intended that this modification to the gradient of the ramp will take place and will be reflected in agreed or revised plans or in conditions.
53 Notwithstanding that the respondent had not placed any expert evidence before the Tribunal, the respondent's counsel, Mr Wittkuhn, nevertheless sought to ask Mr Reynolds about three matters:
1) whether the noise modelling had been based upon the delivery trucks and not the larger waste collection trucks;
2) whether by creating a shallower angle on the ramp to the rear, it also had the effect of raising the point at which a truck stops to unload; and
3) whether the 'reversing beepers' on the waste collection trucks were properly excluded from the assessment of compliance with the Noise Regulations (cf reg 14A of the Noise Regulations, dealing with 'Waste collection and other works').
54 InMcDowall v Reynolds [2015] QLC 32, the Land Court of Queensland has recently noted, at [44] (emphasis added) that:
A significant evidentiary consequence of calling no expert evidence is that unless the evidence called by another party is able to be successfully challenged or contradicted by careful forensic cross-examination, the Court is generally bound to accept such expert evidence as is placed before it.
55 Arguably, and depending upon the circumstances, such 'careful forensic cross-examination' should be informed by the use of identified expert material and perhaps with notice of any 'expert' issue to be specifically raised with that expert. This approach also permits the Tribunal to be fully across, in advance, any area of potential disagreement in a complex field such as noise regulation.
56 Some indication of the appropriate approach to such matters of expert evidence may be gleaned from, for example, these observations of the Court in Hancock v State of Queensland [2000] QSC 469 at [14], emphasis added:
The purpose of the rules is to require the opinion of an opposing expert to be fully exposed so that other experts may comment upon that evidence in an informed way. The notion that it is legitimate to seek to gain some forensic advantage by surprising an opposing expert by producing a specific publication, article or body of data for the first time in crossexamination is no longer correct.
57 Although we permitted Mr Wittkuhn to take this course (not, it should be said, without some hesitation on our part) and he did not here, apparently, produce any 'surprises' for Mr Reynolds, the desirability of informed dialogue between experts who have previously jointly conferred, with relevant crossexamination to follow, is to be greatly encouraged, if not insisted upon, for the efficient disposal of planning cases. Indeed, a failure by a party to provide responsive expert material for the Tribunal on a critical matter, without a valid reason or acceptable explanation, might be grounds for an adverse costs order.
58 We accept Mr Reynolds' opinion evidence. Nothing that arose in crossexamination materially affected Mr Reynold's central opinions or would cause us to doubt the validity of his assumptions, assumptions that he had made upon the basis of considerable practical experience of the regulatory environment affecting noise and not contradicted by any other expert. In any case, such matters that were raised by the respondent largely go to the question of appropriate operational details or conditions.
59 The effect of such acceptance by us of Mr Reynold's evidence is, in all the circumstances, that there is nothing relating to potential noise impact that would disentitle the applicant from an approval for the proposed use and development of the subject land.
Improvement of the site and 'net benefit'
60 The evidence also indicates that, if the proposed development were to be built, then there would be, in terms of access and amenity impact, an improvement, perhaps a significant improvement, of the use of the site in contrast to the current development existing on the site.
61 Mr Hofland was cross-examined by Mr Wittkuhn. He was asked to comment on one aspect of the net benefit of the development on the assumption that for 'the current operation there are no vehicles reversing [onto] the site, [and that] there are no vehicles overhanging the footpath'. Mr Hofland said:
WITNESS, [HOFLAND]: … If we're discounting and not paying attention to what happens with the trucks and the use of that loading bay so if we just [assume that] the loading bay is not there so my aspect in terms of the Wanneroo Road frontage … I would be looking at things like the external appearance, the physical appearance and the streetscape appearance, how that might relate to the [site], and also how the existing operation would work.
I would see that there's a net benefit because the … demolition of the existing shop frontage which is encroaching into the primary regional road reserve I think is a benefit in terms of legibility of that streetscape. I think … having that greater setback rather than a nil setback assists in tying in potentially with the development immediately north, so there's an element of continuity.
I think also it improves the situation for customers and others attending the site, that the ability to park in the property is fairly clear … and I think also the improvements to the façade in terms of … the glazing for the shop windows and … verandas and other treatments to that façade certainly present a far more attractive appearance than the existing frontage to the development[.]
(T:80; 19.05.16)
62 Mr Wittkuhn's assumption, put to Mr Hofland above, is explained below (where we deal with Mr Wittkuhn's submissions on 'net benefit').
63 Clause 67(w) of Sch 2 of the LPS Regulations provides that a decisionmaker is to have 'due regard' to the following matter:
(w) the history of the site where the development is to be located[.]
64 We note that in Theologidis v Council of the Shire of Caboolture [1994] QPLR 301 the Queensland Planning and Environment Court said of a comparable expression (emphasis added, at 302):
'The particular circumstances of the site and building' is a broad and general term. It would include the physical attributes of the site and building and also … their history, at least while in the ownership of the [developer].
65 In Re National Gallery of Victoria and Collector of Customs [1984] AATA 531; (1984) 7 ALN N9 the Administrative Appeals Tribunal was considering whether a modern collectors' item was exempt from duty as meeting a classification standard as a piece of 'historical interest'. The Tribunal, after extensively consulting various dictionary definitions, in this context, took a wide view of what 'history' meant. The Tribunal said, at [27] (emphasis added):
[Counsel] did not suggest that history should be given the sort of narrow meaning which it frequently bore in the past as a subject of study in schools and even universities; nor do we consider that its meaning should be so limited. History, in the context of [the item of classification], may possibly be limited to events of the past. But every event, every object, every natural being, every phenomenon which occurs or exists today has its origins in the past, both ancient and recent. In relation to it what has preceded it and has resulted in it is its [sic] history. However, not all that has preceded it has made a significant contribution to that result. Only what has significance, forming a link between the past and the present, and therefore also the future, is of historical interest.
66 In our view, this factor ('history of the site') should be considered as 'broad and general' enough to include considerations such as any historical deficiencies or difficulties demonstrated with respect to a site's current use. The 'history' of a site might well extend to any valid planning factor that arises from relevant events of the past in respect of a site and its future use or development.
67 Further, the Tribunal's own researches, notified to the parties during the course of the hearing, produced some relevant and helpful observations from the Victorian Civil and Administrative Tribunal concerning what is often effectively the sequential or complementary comparative task involved. That is, after considering the 'history' of the site (including its context) it is then permissible to consider the ameliorating effects of what is proposed, and any benefits and, importantly, the practical outcome.
68 In Cufari and Mildura Rural City Council [2005] VCAT 1979 (sub nomFreeman and Freeman Land Surveyors v Mildura Rural City Council (2005) 21 VPR 88) (Freeman Surveyors) the Tribunal was dealing with a consolidation and subdivision proposal advanced upon the basis of 'net benefit'. Senior Member Liston noted, as valid planning considerations, the following matters, at [7] [8] (original emphasis):
… The extent of inappropriate subdivision throughout the irrigation districts is already high, measures which are themselves not perfect, but ameliorate these impacts, are to be encouraged. The important issue is to ensure that there is a real net benefit. Another important issue is practicality. Does the proposed arrangement lead to a practical outcome[?]
69 Against this backdrop, Mr Wittkuhn nevertheless sought to advance an argument to the effect that the 'net benefit' question before the Tribunal ought to be narrowly framed as follows (emphasis added):
[To] what degree does the proposed development infringe or offend some proper town planning considerations[?] And if there is a marginal net benefit … that marginal net benefit has to be weighed against a very significant or serious aspect of the proposed development[,] [and] then it doesn't necessarily follow [that] without more that it will always be approved. So net benefit is a consideration but it is not determinative.
In [Freeman Surveyors], on the facts, there didn't seem to be a suggestion that there would be a disastrous disbenefit associated with the proposal. So in that case a relatively small net improvement was enough to weigh the balance. But, here, as Mr [Haeren's] evidence supports, and as the planning framework indicates [if] there were no existing use, there are very significant concerns that would be associated with it. You would not, for a start, I submit, … be supporting 12.5-metre trucks on a site of this size if the slate were clean.
And once you accept that you're not supporting large trucks, either [accessing] from the front … or the rear … once that is not an imperative in relation to the site, it frees up a whole lot of planning options and it frees you up to actually do what is right and appropriate for this site, which is to achieve a proper local centre [zoning] outcome.
70 Or, to put it another way:
[T]he net improvement principle should be applied in this way[:] that you do not take account, in terms of the [status quo] aspects of the development which are absurd or perverse outcomes that the community in the locality ought not reasonably need to tolerate. And the [aspects being referred to are], of course, the stopping of the trucks on Wanneroo Road as they reverse and then [overhang] the footpath … They should be excluded in terms of the net benefit principle.
(T:106107; 19.05.16)
71 Subject to these matters, Mr Wittkuhn did accept however that the 'history of the site is relevant, the current operation is relevant and the current use is relevant'. He also accepted that,
… there would be a net improvement so far as the Wanneroo Road frontage is concerned by implementing this development, in comparison with the current use, if all aspects of the current use can and should legitimately be taken into account in the assessment process.
72 It is true that in Freeman Surveyors the Tribunal did engage in a balancing exercise to work out the extent of the 'net benefit' concluding, at [15], as follows:
On balance [the Tribunal is] of the view that although the benefits in this case are relatively minor the benefit is nevertheless both real and practicable as the construction of a new dwelling on productive horticultural land is avoided.
73 However, nowhere in Freeman Surveyors did the Tribunal ever contemplate a 'clean slate' type of approach. The short answer to the suggested formulation by counsel for the respondent is that other planning Tribunals, in analogous contexts, have unsurprisingly rejected the 'clean slate' approach that underlies Mr Wittkuhn's argument. The fact that net benefit has been, with respect, glossed here to include marginal net benefit weighed against alleged planning fundamentals (that is, any 'significant or serious aspect of the proposed development') does not detract from the general rejection of the concept of starting, hypothetically, with a 'clean slate', at least in planning matters such as this.
74 This position may be seen, at its plainest, in Haber v Shire of Surfcoast [2006] VCAT 1008, where the Tribunal said (at [37], emphasis added):
It was argued … that the developer could have readily started with a clean slate on the land demolishing the garage and designing the dwelling accordingly. The Tribunal accepts that there are a number of ways in which the site could have been dealt with. However the role of the Tribunal in assessing the proposal is to determine whether or not the development as proposed is satisfactory and not whether there are other design responses that may have been preferable.
75 Echoing Mr McQueen's submission referred to earlier, in Taniti Pty Ltd v Stonnington City Council [2005] VCAT 1023 the Tribunal has also said, (at [35], emphasis added):
[T]his is not a case where the assessment starts with a clean slate. Rather, a substantial late night entertainment use already exists on the site. It is a use that has existed for many years and it is able to continue even if this application fails.
76 See also, Healthscope Limited v Knox City Council [2014] VCAT 818 at [137].
77 We note that in Fabbian v Minister for Environment and Natural Resources (No 2) [1998] SAERDC 506, the Environment Resources and Development Court of South Australia rejected a 'clean slate' approach in relation to the variation of an irrigation licence. Rather, the Court was bound to take into account the limitations flowing from the effect of decisions already made under the pre-existing regulatory framework for water: see at [65]. This may be no more than an example of what has been called, in another context, 'practical administrative common sense': VCA v Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [279].
78 With respect to Mr Wittkuhn, we reject his net benefit argument. In summary, we do so because, in our view, planning law permits, if not requires, regard to be had to the full history of the site and the existing situation on the site in the context of proposed development without any artificial limitations on that task. In Evans, the Tribunal cautioned against an approach in planning cases 'of allowing the best, or the perfect, to be treated as the enemy of the good': Evans at [123]. The aim is, amongst other things, to look for beneficial, practical, and real planning improvements given a particular state of affairs. The net benefit of a proposal is to be assessed accordingly, and not from a 'clean slate'.
79 Finally, we note Mr Wittkuhn's entirely proper indication, given on 18 May 2016, that if his submissions on his net benefit argument were ultimately rejected by the Tribunal, then it would not be inappropriate for the Tribunal, if it thought fit having regard to the weight of the evidence, to then grant development approval upon conditions.
80 Given our position on Mr Wittkuhn's argument, conditional approval properly follows.
81 As the parties have now reached a satisfactory position on the relevant conditions applicable to the development, we have in effect attached those conditions, by order, to our original approval, as was contemplated by our orders of 19 May 2016.
Final Orders
82 For the reasons given above, the Tribunal makes the following final orders:
1. Further to the orders of the Tribunal made on 19 May 2016, the Tribunal's grant of planning approval on 19 May 2016 has, by consent, effect in accordance with the following Schedule of conditions and related matters.
- (1) That the application for Change of Use, Alterations and Additions to Existing Shop (Meat Lovers Paradise) at Lot 4, House Number 102, Wanneroo Road, Yokine is approved subject to the following conditions:
(a) The development is to comply in all respects with the approved plans as follows:
(i) Plan t13.125.sk74 by Transcore dated 16 May 2016;
(ii) Plan SK05 rev C prepared by Hodge Collard Preston Architects dated 7 July 2015 illustrating the proposed site plan/floor plan;
(iii) Plan SK05 rev E prepared by Hodge Collard Preston Architects dated 4 February 2016 illustrating the proposed site plan/floor plan with the demolition of the existing shop not shown;
(iv) Plan SK06 rev B prepared by Hodge Collard Preston Architects dated 7 July 2015 illustrating elevations and a longitudinal section.
- The plans approved as part of this application form part of the planning approval issued. Where a condition requires a feature to be established installed or maintained which is not depicted on an approved plan, the requirement of the condition prevails and the plans shall be read as if amended to include the requirement of that feature.
(b) Waste management and collection at the premises must be undertaken at all times in accordance with the Encycle Waste Management Plan dated 17 March 2016;
(c) All bulk bins used as part of waste management and collection must have 'soft-close' lids to the satisfaction of the City of Stirling;
(d) Spray drift to adjacent residential properties from the wash down bay(s) shall not occur at any time;
(e) Meat by-products stored on site prior to disposal or for collection by other processing streams must be stored in refrigerated rooms within the buildings until collected and removed from the site;
(f) Deliveries to the premises, and collections (including of waste) and dispatches from the premises by commercial vehicles must:
(i) Not be undertaken by any truck exceeding (for the Wanneroo Road frontage) 12.5 metres in length, or (for the Frape Avenue entrance) 9.8 metres in length;
(ii) Not be undertaken from the seven bay car park adjoining Wanneroo Road;
(iii) Not be undertaken by any vehicle exceeding 8.8 metres in length from the loading dock adjoining Wanneroo Road between the hours of 7.30 am and 6.00 pm on any day when the butcher shop is open to the public for business;
(iv) Only be made to the loading areas accessed from Frape Avenue between 7.30 am and 6.00 pm, and delivery vehicles and trucks must not park or stand in Frape Avenue while waiting to make a delivery to or from the premises;
(v) Not be undertaken on Sundays or public holidays;
(vi) Only be made when staff are in attendance and the premises open to receive deliveries as soon as a delivery vehicle arrives at the premises;
(vii) Not park or stand in Frape Avenue before undertaking their delivery or collection;(viii) Not queue in Frape Avenue while any other delivery or collection vehicle is occupied on site; and
(ix) Not stand or park on site with engine idling or any other audible equipment including entertainment devices running while awaiting any other delivery or collection vehicle occupied on site.
(g) Whenever deliveries are made within the permissible hours for deliveries, the premises must be open with staff in attendance to receive deliveries as soon as a delivery vehicle arrives at the premises;
(h) The landscaping shown on the approved plans must be completed to the City's satisfaction prior to occupation of the development and thereafter maintained in good condition;
(i) Parking areas at the front of the building adjacent to Wanneroo Road shall be designated for and restricted to 'customer parking only';
(j) Prior to commencement of development, a site management plan which addresses measures for the control of dust, noise, parking and traffic during construction of the development must be submitted to and approved by the City. The site management plan approved by the City must be implemented at all times during the construction of the development;
(k) A permanent fixed sign to be fixed to the elevation facing Wanneroo Road, adjacent to the loading area, stating that the area is to be used for deliveries only. Except for delivery vehicles when making a delivery, no parking is permitted in the loading area;
(l) Details of all lighting to be submitted to and approved by the City of Stirling prior to commencement of development;
(m) Any on-site floodlights not being positioned or operated in such a manner so as to cause annoyance to surrounding residents' uses or passing traffic;
(n) All off-street parking to be available during business hours for all customers and staff, free of charge, to the satisfaction of the City;
(o) No goods or materials being stored either temporarily or permanently in the parking or landscaped areas or within access driveways. All goods and materials are to be stored within the buildings or storage yards where provided;
(p) The following matters associated with access, manoeuvring and egress for the Wanneroo Road frontage are to be established and maintained to the satisfaction of the City:
(i) Proposed finished footpath and kerb heights;
(ii) Proposed finished access and egress point heights;
(iii) Incorporation of pram ramps at interface between footpath and access/egress points to site; and
(iv) Signage and/or other means of ensuring northern entry point is left-in only and southern access point is left-out only.
(q) Prior to commencement of development the applicant is to submit full design details, for approval by the City, of the access and egress design for the Wanneroo Road frontage that accords with the layout depicted on Transcore plan t13.125.sk74 dated 27 April 2016:
(i) Up to or close to the subject land's cadastral boundary with the Wanneroo Road reserve; and
(ii) An extension of equivalent depth into the projecting portion of the site which is still within the title to the subject land but within the MRS Regional Reserve, to the satisfaction of the City. The applicant is to install the footpath at their own cost in accordance with the design details once approved;
(s) All entry points shall be highlighted through the use of different materials, to the satisfaction of the City;
(t) No parking, standing, loading, unloading or opening of truck doors or other operations whatsoever are to occur in association with the approved development on or partly on:
(i) Any private lot other than the subject land;
(ii) Any crossover associated with any private lot other than the subject land;
(iii) Any crossover associated with the subject land other than access and egress associated with the approved development as specifically approved by the approved plans nor is any vehicular movement associated with construction, deliveries or collections in connection with the development to occur on or partly on areas referred to in (i) or (ii);
(u) An awning shall be provided between the entry door and stairs to the car park, to the satisfaction of the City;
(v) All proposed parapets shall include indentations and additional modulation, to the satisfaction of the City;
(w) Prior to the occupation of the development, a pedestrian path in contrasting material shall be installed from the street to the front entry, to the satisfaction of the City;
(x) A maximum of one vehicle is permitted at the rear loading dock at any one time;
(y) No earthworks shall encroach onto the Wanneroo Road reserve;
(z) No stormwater drainage shall be discharged onto the Wanneroo Road reserve;
(aa) The existing levels on the Wanneroo Road reserve boundary are to be maintained as existing;
(ab) Redundant driveways shall be removed, with the verge and its vegetation and paving made good at the applicant's expense;
(ac) All vehicular movements to leave and enter Wanneroo Road in a forward gear; and
(ad) The applicant must obtain approval from Main Roads WA before any works are undertaken within the Wanneroo Road reserve. The applicant seeking access to the Main Roads network will be required to submit an application as outlined in the 'Application Kit and Guidelines' for State Roads.
(2) That pursuant to cl 5.5 of City of Stirling Local Planning Scheme No 3, the cash-in-lieu contribution for nine car parking bays be waived.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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