| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : D'ORAZIO ENTERPRISES PTY LTD and CITY OF STIRLING [2013] WASAT 152 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 9, 12 AND 13 AUGUST 2013 DELIVERED : 12 SEPTEMBER 2013 FILE NO/S : DR 74 of 2011 BETWEEN : D'ORAZIO ENTERPRISES PTY LTD Applicant
AND
CITY OF STIRLING
Respondent
Catchwords: Town planning - Development application - Extension of butcher's shop into adjoining vacant tenancy Whether proposed development conforms with Local Centre zone objectives Whether proposal will be limited to or increased beyond existing level of activity Whether proposed delivery arrangements can resolve and improve on existing inadequacies in relation to traffic and pedestrian safety and residential amenity Whether parking arrangements will be adequate to meet customer and staff requirements Whether or not proposed development will result in an improved and better outcome
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Legislation: City of Stirling Local Planning Scheme No 3, cl 4.2.7, cl 4.3.3, cl 4.3.3(b), note 1, note 2
City of Fremantle Local Planning Scheme No 4
Metropolitan Region Scheme
Planning and Development Act 2005 Instrument of Delegation (DEL 2011/02 Powers of Local Governments) Result: Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision: This is a review of the respondent's decision to refuse development approval for the extension of a butcher's shop located on Wanneroo Road in Yokine.
The issues for consideration were:
1) Whether the proposed development was consistent with the objectives of the Local Centre zone under the respondent's town planning scheme.
2) Whether the western loading dock, as proposed by the application, is acceptable.
3) Whether the proposals for changes to the eastern loading dock are acceptable.
4) On site parking.
5) Whether the impacts identified with respect to this proposal can be addressed by appropriate conditions of approval and/or modifications and/or additions to the current General Management Plan.
6) Whether this proposal represents an improvement and better outcome than the existing situation.
In respect of issue 1, the Tribunal noted that the text of the first objective of the zone, describing the respondent's aspiration for 'small scale retail ... to meet day to day needs of the immediate neighbourhood' was not sufficiently helpful in its wording to reach a conclusion that the proposed butcher's shop was not compliant with its meaning.
In respect of the balance of issue 1, the Tribunal preferred the arguments of the respondent that the proposal did not meet the intent of the second and third objectives of the zone, respectively relevant to 'ensuring safe and convenient access', and to 'ensure development is designed to reinforce a sense of place and attractive streetscapes'.
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In reaching its conclusion in respect of the second and third zone objectives, the Tribunal rejected the overarching argument put by the applicant in respect of issues 2, 3 and 4 that the proposed development is designed solely to achieve business efficiencies, improved processes and better staff amenities, and that it would not result in any increased business activity. The Tribunal concluded that even though the applicant might intend such an outcome for the business, the substantial extent and nature of its expansion rendered it more than likely that business activity would increase. Accordingly, the evident inadequacies of the delivery systems to the premises and their impact on traffic safety, pedestrian convenience and the amenity of the residential area behind the shop are not likely to improve. The present inadequacies and congestion of parking would also likely be exacerbated by increased activity associated with the expansion of the butcher's shop. In the Tribunal's opinion, the shortcomings of the proposal in respect of safety, convenience and amenity therefore conflict with the intentions of the second and third zone objectives.
With regard to issue 5 concerning the prospect of any resolution of the identified problems associated with the proposal by imposing conditions of approval or modifying the applicant's management plan, the Tribunal was unconvinced that this represented any practical solution. No reasonable solutions were offered in respect of resolving parking or delivery inadequacies.
The Tribunal found in respect of issue 6 that the proposal did not represent an improved or better outcome compared to the existing situation.
The application for review was therefore dismissed and the respondent's decision of refusal was affirmed.
Category: B
Representation: Counsel:
Applicant : Mr M Hardy
Respondent : Mr A Roberts
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods Barristers & Solicitors
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Case(s) referred to in decision(s):
D'Orazio Enterprises Pty Ltd and the City of Stirling [2012] WASAT 219
Hampton 256 Pty Ltd and City of Fremantle [2010] WASAT 73
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is a review of the City of Stirling's (respondent) decision to refuse planning approval for the extended use of a butcher's shop situated at No 102 (Lot 4) Wanneroo Road, Yokine (land, site, premises). 2 The application for planning approval was lodged with the respondent by Hodge and Collard Architects on behalf of D'Orazio Enterprises Pty Ltd (applicant) on 12 February 2009. 3 Amended plans were prepared and lodged with the respondent in August 2010 after issues were raised by the respondent in consultation with nearby landowners. 4 Following further consideration of the amended plans, the respondent refused the application on 8 February 2011. 5 The applicant lodged an application for review of the respondent's decision on 4 March 2011. 6 The Tribunal considered certain preliminary issues relating to the nature of the present and proposed use of the premises at a hearing conducted in December 2011. It was determined by the Tribunal, in D'Orazio Enterprises Pty Ltd and the City of Stirling[2012] WASAT 219, (D'Orazio), that the existing use and proposed development is classified as a 'shop' under the City of Stirling Local Planning Scheme No. 3 (LPS 3 or Scheme).
The proposed development and its context 7 The land the subject of this review is an oblong shaped commercial property of 1,449 square metres in area. 8 The land has an approximately 33 metre western frontage to Wanneroo Road and a 14 metre eastern boundary to Frape Avenue at the rear. 9 The land slopes downwards from Frape Avenue which enjoys an elevation some 5 metres above the Wanneroo Road frontage of the land. 10 Two separate buildings occupy the land. The northern building is used as a butcher's shop trading as 'Meat Lovers Paradise' (Meat Lovers). The southern building was used as a restaurant but ceased trading several years ago (vacant restaurant). Both buildings have parking provision and (Page 6)
customer access from Wanneroo Road, and obtain service and goods delivery access from Frape Avenue. 11 Meat Lovers has a floor area of 297.9 square metres. The vacant restaurant has a floor area of 258.7 square metres. 12 Wanneroo Road in the vicinity of the land is generally developed with commercial premises. 13 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. 14 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. 15 The development application seeks approval to use the vacant restaurant for the purposes of expanding Meat Lovers, and to undertake internal works and construct certain additional floor space for that purpose. Approval is also sought for internal works to Meat Lovers, such that both buildings will be able to be used as an integrated butcher's shop business on the premises. 16 At the rear of the vacant restaurant it is proposed to establish a courtyard, vehicle wash area, waste bin enclosure and three staff car parking bays. A limestone wall and landscaping is proposed, to provide screening and buffering along the rear and southern property boundaries. 17 Eight existing car parking bays at the front of the restaurant building are to be retained for the purpose of customer parking. 18 The western loading dock area accessed from Wanneroo Road is proposed to be lengthened by 5.5 metres. The area in front of the loading dock is also proposed to be used for customer parking. 19 Including the proposed additions at the rear of the vacant restaurant (140.1 square metres), the overall floor space of the proposed development will be 696.7 square metres. 20 The application for development is accompanied by a General Management Plan (GMP) designed to guide processes and procedures associated with servicing the premises. (Page 7)
Statutory and policy instruments 21 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. 22 Of relevance to the scope of this review is the Planning and Development Act 2005 Instrument of Delegation (DEL 2011/02 Powers of Local Governments) gazetted 23 December 2011. 23 The land is zoned Local Centre under LPS 3. 24 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. 25 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'. 26 Clause 4.3.3 of LPS and associated notes 1 and 2 provide criteria for the permission of a change of use of land from one use to another. 27 The respondent has adopted the following policies relevant to this review: The respondent's decision 28 The respondent refused the proposed development for the following reasons: (Page 8)
1) The proposed development is inconsistent with the objectives of LPS 3 for the Local Centre zone (refer under 'statutory and policy instruments' above). 2) The proposed development involves the carrying out of two different and distinct land uses on the site, although in the same premises and using the same facilities, being a 'shop' which is capable of approval, and a 'warehouse' which is prohibited. 3) The proposed development does not comply with the car parking requirements of the City's Parking Policy, with the resultant effect that the proposal involves a four car parking bay shortfall. 4) The proposed development is contrary to the requirements of orderly and proper planning, as the proposal has failed to address the council's concerns in relation to noise, odour, waste disposal, traffic and access and egress of delivery and pick-up trucks to the development site. 29 The Tribunal noted that Main Roads Western Australia (MRWA) formally advised the respondent that it did not support the application.
The issues 30 The expert planning witnesses representing the parties agreed (and the Tribunal concurs) that the issues are: 1) Whether the proposed development is consistent with the objectives of the Local Centre zone in cl 4.2.7 of LPS 3. 2) Whether the western loading dock, as proposed by this application is acceptable. 3) Whether the proposals for the existing eastern loading dock area are appropriate. 4) On site car parking. 5) Whether any of the impacts that may be identified with respect to this proposal can be addressed by appropriate (Page 9)
conditions of approval and/or modifications and/or additions to the current draft GMP. 6) Whether this proposal represents an improved and better outcome than the existing situation?
Scope of the Tribunal's decision 31 Because of the advice of MRWA declining support of the proposal, the parties accepted that if the Tribunal concludes on the arguments that the application for review should be upheld, it remains that the Tribunal's decision under the respondent's LPS 3 will need to be referred to the Western Australian Planning Commission for final determination.
Site view 32 A visit to the site was undertaken on the morning of the first day of the hearing. The visit afforded a viewing of the rear entrance to the site from Frape Avenue, aspects of the adjoining commercial property and the surrounding residential area. The Wanneroo Road frontage of the site was also inspected which afforded a view of car parking arrangements, the street footpath and the western loading dock.
The respondent's argument 33 The respondent argued that the proposal should not be approved as it did not satisfy key questions arising from the issues of concern and therefore approval would be contrary to the interests of orderly and proper planning. 34 Ms A Butterworth, a qualified and experienced town planner, provided expert planning testimony on behalf of the respondent. 35 In relation to the objectives of the Local Centre zone, Ms Butterworth was of the opinion that the proposed butcher's shop could not reasonably be described as 'small scale'. The business prepares and delivers product to a wide proportion of the metropolitan area, presently some 77 suburbs. The extent of this delivery service has greatly increased from just nine suburbs recorded as delivered to in 2011. 36 Ms Butterworth described the scale of the business as beyond normal expectations of a local or neighbourhood butcher's shop, citing the substantial overall floor space and, particularly, the large number of employees engaged at the premises. Twentyfour persons were listed as regular employees of the business in evidence at the preliminary hearing. (Page 10)
37 In relation to the second objective seeking to 'ensure safe and convenient access to facilities' and facilitate pedestrian movement, Ms Butterworth brought to the attention of the Tribunal the following points associated with the Wanneroo Road frontage of the development: • Large delivery trucks are to continue to reverse off Wanneroo Road to access the western loading dock. When in place to unload, they will overhang the street footpath, interrupting pedestrian movement in the vicinity of the local bus stop. • The area in front of the western loading dock is shown as a car parking area on plans approved in 1999. There is no record that this area has been approved for service delivery purposes. • The area in front of the loading dock is presently used for customer parking when not occupied by delivery vehicles. It has not been demonstrated that the two functions can be conducted together in a safe and convenient manner or that it would be conducive to safe pedestrian movement along the street footpath. 38 The third objective of the Local Centre zone to reinforce 'sense of place' and an 'attractive streetscape' is, according to Ms Butterworth, compromised by the function of the western loading area. 39 Other than the preceding comments, Ms Butterworth deferred to the traffic expert witnesses in relation to the acceptability of the western loading dock as proposed in this application. 40 The eastern loading dock and service area is accessed from Frape Avenue and, according to Ms Butterworth, it has been a major cause of complaint from residents in the area because of nuisance related to delivery trucks, bin collection, waste odour and street parking. 41 Ms Butterworth noted that the proposed vehicle wash area at the rear of the premises has potential to cause additional nuisance from spray drift onto adjacent residential properties. 42 The GMP does not satisfactorily address waste and odour management, vehicle wash arrangements or the control of delivery vehicles such that there would not be an adverse effect on the amenity of residents in Frape Avenue. (Page 11)
43 Ms Butterworth observed that the proposed earlier start time for deliveries at the eastern loading dock would be disruptive to the amenity of the area. 44 Ms Butterworth was of the opinion that the proposed expansion of the butcher's shop would be likely to increase production capacity with a consequent rise in the frequency of deliveries. Such an increase of activity would further adversely affect the amenity of nearby residents in Frape Avenue. 45 On the question of car parking provision proposed to service the development, Ms Butterworth identified from the plans that there would be eight bays in front of the vacant restaurant and three bays for staff at the rear of the premises. Calculated in accordance with relevant Parking Policy, there would be a shortfall of 18 bays if two bays located in the Wanneroo Road reserve were to be accepted, or 20 bays if they were not. Because one disabled parking bay would need to be provided on site, the shortfall would increase by a further parking bay because of the extra dimension requirements of a disabled bay. 46 Further car parking concession may be warranted if bicycle facilities were to be provided, but none have been identified on the application plans. 47 Ms Butterworth was of the opinion that because the proposed development represents a substantial expansion of the business conducted from the premises, the parking provision to service it will be inadequate. This is clearly apparent, measured against the parking standards of the respondent's policies. 48 Acknowledging the alternative hypothetical possibility for the vacant restaurant tenancy to be re-opened, Ms Butterworth agreed that such a circumstance would of itself intensify activity on the site, but noted that demand for restaurant customer parking would be confined to lunch time and dinner time, the latter being outside the normal business hours of Meat Lovers. There would therefore be some mitigating complementarities in the use of the available parking. 49 Turning to whether impacts of the proposal can be addressed by conditions of approval or improvements to the draft GMP, Ms Butterworth suggested that the GMP needs further review and modification but that in any case the application would still not be consistent with the planning framework. (Page 12)
50 A condition requiring cash in lieu of parking would not be appropriate, according to Ms Butterworth, because the immediate premises of Meat Lovers is substantially deficient in parking and because the suggested alternative location for shortfall parking in Frape Avenue would, if constructed, further detract from the amenity of the residential area. 51 On the question of whether the proposal represents an improved outcome over the existing situation, Ms Butterworth expressed the view that the expansion of Meat Lovers will be of a scale likely to significantly increase production activity, with consequences of the need for more deliveries, more waste disposal collection and spray drift problems associated with the wash down area. These circumstances will further impact on properties in close proximity to the site. 52 To address traffic, deliveries and parking related issues, Mr DN Veal, a qualified and experienced traffic and transport engineer, provided evidence on behalf of the respondent. 53 Mr Veal informed the Tribunal that Wanneroo Road is a primary distributor road carrying some 30,000 vehicles per day in the vicinity of the land. 54 Mr Veal described the process he had observed of large trucks reversing off Wanneroo Road into the western loading dock. The manoeuvres blocked traffic on Wanneroo Road. 55 The five year crash history for this section of Wanneroo Road identifies 11 midblock crashes, of which five were recorded in a 20 metre section covering the two driveways servicing the butcher's shop premises. 56 In respect of the proposed lengthened western loading dock fronting Wanneroo Road, Mr Veal was of the opinion that the reversing movement off the street by truck drivers into the loading dock is, and will remain, a safety risk, although it would be reduced in the event that, if as is anticipated by the applicant, fewer deliveries will be needed to service requirements in the future. 57 Trucks while unloading will still, however, protrude into the road reservation area, although they will not block the road carriageway or footpath, provided that the driver fully utilises the extended length of the loading dock. (Page 13)
58 According to Mr Veal, the proposed development would lead to improved conditions for pedestrians, but safety issues of manoeuvring into and out of the western loading dock would remain. For safety reasons, all vehicles should enter from and exit to Wanneroo Road in a forward gear. 59 The proposed eastern loading dock arrangement off Frape Avenue could accommodate two delivery trucks at once but this would block off access to the staff car park and the wash bay and waste collection area. Mr Veal noted that large delivery trucks would need to reverse off the street into the loading dock. 60 Mr Veal observed that the large car parking shortfall related to the proposed development would lead to an adverse impact on parking turnover, with some demand likely to spill over onto adjacent Lot 211 Wanneroo Road (Lot 211). More car parking demand is also likely on Frape Avenue, with further impact on residential amenity. 61 Witness statements of Mr B Gatto and Mr L Franchina, owners of units at Lot 211 situated adjacent to Meat Lovers, were tendered as evidence on behalf of the respondent. Both Mr Gatto and Mr Franchina cited concerns that the servicing functions associated with Meat Lovers caused damage, obstruction and interference with the driveway access to Lot 211 by delivery trucks. Parking congestion occurred because Meat Lovers' customers have to park at Lot 211 when they are unable to park at its carpark. 62 Mr Franchina, Mrs G Georgiu, Ms G Perrozzi and Mr A Strano, representing residents' interests, provided witness statements on behalf of the respondent in respect of the impact of activities associated with Meat Lovers on the amenity of the residential area on Frape Avenue. 63 The residents' principal concerns were the steadily increasing nuisance generated by delivery trucks, waste odours, rubbish, noise and car parking on the street.
The applicant's argument 64 The applicant argued that the proposed development should be approved because it was consistent with the objectives of the Local Centre zone and was in any case an improved and better outcome than the present circumstance. (Page 14)
65 Mr G Rowe, a qualified and experienced architect and town planner, provided expert planning evidence on behalf of the applicant. 66 Considering the objectives of the Local Centre zone, Mr Rowe advised that the proposed development provides a service that meets the day to day needs of customers in Yokine and adjoining suburbs. To the extent that it serves a wider area by means of deliveries does not compromise the function of the Yokine local centre. A number of other businesses in the centre could be seen to serve a wide range of suburbs. 67 Mr Rowe gave examples of what he considered to be typical local or neighbourhood businesses, including a neighbourhood supermarket of up to 3,000 square metres floor space, a pharmacy of 600 square metres or a liquor store of, say, 1,500 square metres. In this regard, the proposed development is at the smaller end of the scale. 68 Mr Rowe noted that the respondent's planning officers had recommended the application for approval, presumably accepting that it did not offend the Local Centre zone objectives. 69 The purpose of the proposed development is to improve facilities and amenities and improve the layout and operational efficiency of the business. It is not, according to Mr Rowe, the intention to intensify or change the existing use. 70 Based on reasoning provided by the applicant's traffic expert, Mr Rowe advised that safety and convenience of pedestrian movement will be improved as a result of provision of the extended western loading dock. Further, the setback of the new shop sales area will ensure more convenient and safer access for customers. 71 Mr Rowe disagreed with Ms Butterworth as to the lawful status of the western loading dock. He noted advice from the applicant that the loading dock has been in existence and continually used since about 1955. The local government has never indicated any question of unlawfulness associated with the western loading dock. 72 Mr Rowe acknowledged that it would be preferable to avoid conflict of service vehicles and the streetscape; however, this application is addressing an existing situation and, whilst not resolving the conflict, it nevertheless results in improvement. 73 For these reasons, Mr Rowe contended that the application met the objectives of the Local Centre zone. (Page 15)
74 On the question of acceptability of the western loading dock, Mr Rowe referred to testimony of the applicant's traffic expert. 75 On the proposed changes for the eastern loading dock at the rear of the premises, Mr Rowe advised that the proposal will improve staff parking, provide for more efficient delivery operations, and construct a more attractive physical relationship with adjoining and nearby residential properties. 76 Mr Rowe agreed that the proposed development does not meet the car parking numbers required by the respondent's Parking Policy. In the past, significant parking concessions have been granted for both Meat Lovers and the former restaurant tenancy. 77 Mr Rowe concurred with Ms Butterworth that calculations based on the current policies would indicate an overall shortfall of parking between 16 to 20 bays dependent on allowable concessions. Mr Rowe offered a revised calculation based on taking into consideration only the extra parking requirements in respect of the building additions. This calculation demonstrated that the shortfall attributable to this application would be only eight bays, if relevant policy concessions were still applied. 78 Bicycle parking could be provided on site to qualify for the car parking concession offered by the respondent's Parking Policy. Mr Rowe conceded that bicycle parking was not illustrated on the plans for the application, but he was confident that such facility could be incorporated. 79 Irrespective of the parking shortfall, Mr Rowe contended that the proposed development will provide an improvement in parking provision by the addition of staff car parking at the rear of the premises and an opportunity, via a cash contribution in lieu of parking, to provide off site parking in Frape Avenue. Again, Mr Rowe emphasised that the proposed development is not intended to intensify or change the existing use. No increase in staff or customers is expected. For this reason the shortfall in parking is considered to be acceptable. 80 Mr Rowe advised that impacts of the proposed development can be addressed by approval conditions and the GMP. The GMP addresses matters such as deliveries, collections, security, odour and waste control, and complaints handling. It is in draft format and is capable of modification to address issues of concern. 81 The proposal represents an improved and better outcome than the existing situation according to Mr Rowe. Mr Rowe referred to the (Page 16)
improved layout and operational efficiency of business activities and the aim to bring the premises into conformity with environmental health regulations and standards. 82 Mr Rowe described the improvements to the western and eastern loading dock, the proposed rear boundary screen wall and landscaping, management of waste collection and deliveries, and the proposed additional parking arrangements, all of which contribute to lessening impacts on other properties in the area. 83 Based on these reasons, and because there will be no intensification of business activity associated with the proposed development, Mr Rowe was of the opinion that it ought to be approved. 84 To provide evidence on behalf of the applicant on traffic matters, Mr BBordbar, a qualified and experienced transportation engineer, assisted the Tribunal. 85 Mr Bordbar expressed the opinion that the proposed development associated with the western and eastern loading docks would result in significant improvements in road safety, traffic operations and amenity of the locality. 86 Mr Bordbar accepted that the reversing movement by truck drivers into the western loading dock would remain a safety risk to other road users and pedestrians, but the risk will reduce because the applicant has indicated that fewer deliveries will be required and they will not occur during peak traffic times. 87 Mr Bordbar agreed that it would be desirable that no parking bays should be located next to the western loading dock in order to reduce safety risks. It is intended that customers of the butcher's shop should use the eight bay carpark in front of the vacant restaurant and that all customer delivery pick-ups will be collected from the Frape Avenue rear access. These arrangements will result in improved traffic operations and reduced safety risks. 88 On the operation of the eastern loading dock, Mr Bordbar noted that two delivery trucks could be accommodated on site, but this would result in blocking off the staff parking bays and the wash down and waste collection area. 89 Mr Bordbar accepted that the proposed development would lead to an adverse impact on parking turnover, with some demand likely to (Page 17)
impact on adjacent Lot 211 and along Frape Avenue. Parking on Frape Avenue is, however, permitted and not illegal. 90 Mr P Kampen, a Regulatory Food Safety Auditor, provided evidence on behalf of the applicant in relation to food safety issues associated with the existing and proposed butcher's shop business. 91 Mr Kampen advised the Tribunal that in the interests of good manufacturing practices and compliance with environmental health standards, the proposal provides: • segregated processing areas for both red and white meat; • good flow processes for the receiving, storage, processing and distribution of red and white meats; and • inclusion of separate production areas, change rooms, lunch rooms and toilets. 92 Based on these factors, Mr Kampen advised the Tribunal that the proposed development activity pattern was superior to the existing practices on the premises.
Draft conditions of approval 93 Draft conditions of approval were substantially agreed between the respondent and the applicant. 94 Two conditions remain in dispute. These conditions relate to the times appropriate for truck deliveries to the western loading dock (draft condition 18(b)), and the number of car parking bays to be compensated for by a cash in lieu contribution to the respondent (draft condition 23). 95 These conditions in dispute will need to be further deliberated upon in the event that the Tribunal determines to uphold the application for review.
Analysis 96 Addressing the issues in order, there is evidently a divergence of opinion between the parties as to whether the proposed development conforms with the objectives of the Local Centre zone. 97 The first objective referring to 'small scale retail …. to meet the day to day needs of the immediate neighbourhood' was argued by the (Page 18)
respondent as not being met because the proposed business exceeded the reasonably expected size of a butcher's shop and because a significant portion of its trade extended beyond the local neighbourhood. 98 The Tribunal's attitude to this argument is ambivalent to the extent that the wording of the objective in the planning scheme is quite unhelpful in providing any reasonable precision as to what is meant by 'small scale'. Additionally, the text of the objective is silent as to whether a business is prohibited from serving a wider community as well as the immediate neighbourhood. It would seem inevitable that an aspirational but vaguely worded objective will be difficult to interpret with certainty and consistency. 99 The applicant, on the other hand, argued that the proposed butcher's shop business is a normally expected service in a neighbourhood centre and, comparative to other typical businesses in such a centre (supermarket, pharmacy, etc), it is at the smaller end of the scale. The proportion of income from suburban deliveries is documented as being about 25% while the majority of income from Meat Lovers' business is derived from over the counter trade, presumed to be substantially generated from the local community. The wide geographic extent of demand appears to be simply a consequence of Meat Lovers' management practising an effective business model. 100 The applicant referred to Hampton 256 Pty Ltd and City of Fremantle [2010] WASAT 73 (Hampton 256) citing the circumstance of a town planning scheme, similarly constructed to that of the respondent's, in which a zone objective sought to limit development to a range of 'small scale' uses. The Tribunal, in that case, found that the zone objective was referring 'to the type of retailing of goods and services and not the floor area of the proposed activity'. 101 The respondent countered this argument by stressing that the City of Fremantle Local Planning Scheme No 4 was significantly different, in that the objective actually referred to particular types of retailing as appropriate to the desired scale. This contrasted with the respondent's scheme which specifically linked the description 'small scale', with uses that 'meet the day to day needs of the immediate neighbourhood'. 102 The Tribunal can only remark from this, that the two schemes are using different references and that each presents some difficulty in interpretation of the relevant zone objectives. It is concluded, therefore, on the basis of all the presented arguments, that it remains unsafe to (Page 19)
assume that the proposed butcher's shop development is of a scale inconsistent with the zone objective, and also, that it is unreasonable to deny that some portion of trade, due to a successful business model, should not be in demand beyond the needs of the immediate neighbourhood. 103 The second objective relating to 'safe and convenient access' and the third objective relating to 'streetscape' can only be considered in the context of argument relating to the remaining issues. They should therefore be set aside pending discussion and conclusion in relation to those issues. 104 Issue 2 relates to the acceptability of the function of the western loading dock. 105 The traffic experts agreed that truck access movements to the western loading dock are, and will remain, a risk to vehicle traffic and pedestrian safety. The proposed development incorporates 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. The applicant's traffic expert, Mr Bordbar, advised that it would be possible for the frequency of truck deliveries to the western loading dock to be reduced by about 10 - 20% when the new development is in place because of the increased size of the cool-room/storage area. 106 The GMP states at section 8, however, that deliveries and dispatches from the subject land will remain unchanged. 107 The Tribunal is left with doubts as to an argument that there can be any certainty of a reduction of the frequency of deliveries to the western loading dock. The fact that the physical size of the butcher's shop business is to substantially increase as a consequence of the proposed development would reasonably support an alternative proposition that capacity for turnover is more than likely to increase and therefore require more frequent deliveries. 108 With such 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 (Page 20)
frequency of deliveries to the western loading dock can be practically guaranteed. 109 The Tribunal understands from the evidence that the eastern loading dock modifications will represent an improved environment for service activity, particularly site deliveries, waste storage and collections. It is apparent, however, from evidence of the applicant's witnesses, that there will probably be numbers of small delivery vehicles diverted to the eastern loading dock off Frape Avenue because of the need to limit their use of the Wanneroo Road frontage of the premises in favour of customer car parking. 110 The principal concern of the residents of Frape Avenue expressed to the Tribunal is the nuisance of delivery trucks and vans manoeuvring, idling, parking, and reversing into the eastern loading dock. There is nothing in the evidence before the Tribunal to show that this activity will decrease because of the reconfigured loading dock. In fact it would appear that vehicular activity servicing the rear of the premises is more than likely to increase, given the greater physical size and capacity of the business to trade and because of the previously mentioned diversion of deliveries from the front to the rear of the premises. 111 It is acknowledged that the visual appearance of the Frape Avenue frontage will be improved by the proposed boundary wall and landscaping, but in terms of residential amenity, largely associated with the nuisance of delivery vehicles, the function of the modified eastern loading dock remains unsatisfactory. 112 Turning to the parking issue, it was recognised by both parties that, in respect of the proposed development, there will be a shortfall of parking compared to contemporary planning standards. That shortfall would be in the vicinity of 16 20 parking bays, depending on the appropriateness of policy related concessions. Mr Rowe also presented a calculation demonstrating that the shortfall might be as low as eight bays if historical parking arrangements are accepted and the measurement of parking requirement is related solely to the increased building footprint. 113 In any of these scenarios it is apparent that, compared to the prospective provision of only 11 bays on site, the shortage of parking is acutely deficient measured against contemporary standards. 114 Evidence was tendered by Mr Gatto and Mr Franchina that customers of the butcher's shop parked at the next door premises are (Page 21)
causing congestion in that parking area to the detriment of their businesses. 115 Of relevance to the discussion of the adequacy of parking on the premises is the question of whether the presently vacant tenancy could lawfully be re-occupied and activated as a restaurant. The Tribunal was persuaded by the applicant's argument that such an event was theoretically possible in the circumstance that the application under review did not proceed. This then, in conjunction with the existing butcher's shop, should represent the base condition for comparison of any alternative development and requirements for parking provision on the land. 116 The consequence of reoccupancy of the vacant restaurant would obviously aggravate the existing parking problem, but in the Tribunal's estimation, it would probably not be as serious a challenge to parking functionality as the alternative of the expanded butcher's shop, other than during the typical restaurant luncheon service period. Morning and afternoon restaurant trade, by comparison, is unlikely to demand much diner custom. The evening meal time is likely to be after normal shop business hours and parking availability, then, would be uncontested. The restaurant option is thus likely to be a lesser problem of parking shortage than the proposed development. 117 It is, of course, possible that other uses might be permitted in the vacant restaurant premises, but where a change of use is contemplated, a new planning permission would be required and the proposed use must then comply with the relevant standards and requirements of LPS 3. It is likely that application of those standards and requirements would be more onerous than the present arrangements for the vacant restaurant. 118 Mr Veal, the respondent's traffic expert witness, cited evidence of the video survey to the effect that customers of Meat Lovers are, indeed, making use of other parking provision in the vicinity. Mr Veal observed as well that the parking shortfall will lead to significant demand on parking that will not be catered for within the site. This will impact adversely on other carparks close by, particularly on adjacent Lot 211. 119 The Tribunal feels bound to accept this view, particularly as it is corroborated by the evidence of Mr Gatto and Mr Franchina. 120 The Tribunal also acknowledges the general correlation between the floor space of the premises and its capacity to generate business activity and custom. (Page 22)
121 The applicant has, of course, put the argument that the proposed development is not intended to generate additional activity; rather, its purpose is to improve efficiency and effectiveness by a better process layout and provision of staff amenities. Certainly, this aspect of the proposed development is evident from the plans, but it is difficult to presume that such efficiencies would not at some point result in better productivity and therefore generate greater activity and custom. The considerably increased size of the proposed retail shop counter area, for example, is indicative of a capacity to heighten custom. The Tribunal is not prepared, in these circumstances, to accept the applicant's assurances that the level of activity will remain the same, irrespective of the very substantial increase in floor space proposed to be occupied by the business. 122 For these reasons, the Tribunal anticipates that it would be prudent to expect an increased demand for customer car parking associated with the proposed development. Plainly, such parking, other than the insufficient number existing, cannot be provided on site let alone where the extra parking would be needed at the front of the shop. Additionally, the need for staff parking to meet the needs of the 20 plus staff of Meat Lovers at present, and any additional future staff who may be required with the increased size of Meat Lovers, are unable to be accommodated on site. 123 The Tribunal concludes that on site car parking provision is unsatisfactory and will be even more inadequate in the event of the proposed development. 124 It is appropriate, here, to return to the second Local Centre zone objective concerning 'safe and convenient access' and discuss whether it is being met in respect of the issues relating to the western loading dock and parking provision. The assessment of the Tribunal after consideration of the evidence is that there are concerns with respect to the safety of traffic and pedestrians associated with deliveries to the western loading dock, and that these are not likely to diminish significantly, if at all, with implementation of the proposed development. There are also concerns of significant inadequacy in relation to convenient customer car parking that will be exacerbated by the proposed development. The Tribunal also notes that the configuration of buildings on the land renders the small eight bay carpark in front of the proposed shop poorly visible and poorly legible as an accessible carpark when viewed by approaching south bound traffic on Wanneroo Road. This subtracts from its efficiency and convenience as a customer carpark. (Page 23)
125 For these reasons, which demonstrate failure of the proposal to effect safe and convenient access to the premises, the proposed development is seen to fail the second Local Centre zone objective. 126 The third Local Centre zone objective refers to the expectation that the proposed development should be sited and designed to reinforce a sense of place and an attractive streetscape. 127 Compliance with this objective was not an issue strongly contested by the parties, but the Tribunal does take note that the proposed development does not seek to contribute positively to the civic design quality of the Wanneroo Road frontage and that, as Ms Butterworth for the respondent wryly observed, 'the reversing of delivery vehicles up to 11.5 metres in length across the pedestrian path does not provide for an attractive streetscape or sense of place'. 128 To the extent that these remarks are limited in the discussion, the Tribunal remains uncertain, but nevertheless dubious, that the proposed development would meet the intentions of the third zone objective. 129 The Tribunal turns to whether the recorded shortcomings of the proposed development can be resolved by the imposition of conditions of approval or modifications of the GMP. Both Mr Rowe and Ms Butterworth agreed that the GMP was still very much in draft form and more work needed to be undertaken for it to be considered an effective management instrument. Questions were raised during the hearing in respect of the GMP as to the practical effectiveness of managing delivery times, the size of delivery trucks, frequency of deliveries and how these requirements and intentions could be guaranteed and policed. These questions remain to be addressed by the GMP. 130 In respect of the draft conditions of approval prepared by the respondent, it is apparent that a range of standard and ad hoc conditions are appropriate and sensible to govern the development and ongoing management of the butcher's shop premises. These are largely agreed between the parties but do not necessarily resolve fundamental concerns expressed in the preceding evidence considered by the Tribunal. The principal condition under contention between the parties relates to the number of car parking bays that constitute the shortfall of parking to be paid for in lieu by the applicant. In this regard the Tribunal sets this issue aside to be determined later in the event of contemplation of a recommendation for approval of the proposed development. It will, of (Page 24)
course, not need to be determined in the case of the application for review being dismissed. 131 The final issue to be addressed is whether the proposal represents an improved and better outcome than the existing situation. 132 The applicant has largely relied on three arguments to demonstrate that the proposed development will be a better outcome. These are: 1) The purpose of the redevelopment is to improve efficiency, enhance compliance with food preparation standards and provide for better staff amenity. The overall level of business activity on the premises is not intended to increase. 2) The arrangements for deliveries to the business will be improved such that there will be a reduced traffic safety risk at the Wanneroo Road frontage and that the arrangements for deliveries, parking and boundary screening at the Frape Avenue frontage will improve the amenity of the residential area. 3) On site parking provision will be practically sufficient to serve the business, and opportunity isavailable to supplement any shortfall via the cash in lieu mechanism. 133 These arguments are reiterations of aspects of the issues previously discussed in this review. 134 In summary of these discussions, the Tribunal prefers the alternative proposition that the scale of the proposed development (which includes considerable additional floor space beyond occupancy of the vacant restaurant tenancy) is more likely at some stage to generate greater levels of business activity than at present. The premises is already demonstrably unable, in its present configuration, to be adequately and safely serviced, and it is likely, in the event of heightened activity associated with the proposed development, that these conditions will deteriorate. Additional activity will also aggravate existing parking problems and there does not appear to be a satisfactory solution to augment parking in the area without raising further concerns in regard to the amenity of the locality. 135 The proposed development does not, therefore represent an improved and better outcome than the existing situation. (Page 25)
136 A separate argument in pursuit of grounds for approval was mounted by the applicant based on the proposition in cl 4.3.3 of LPS 3, referring to the change of use of land, mandated by virtue of Note 2, that the Council ought not refuse a 'P' (or permitted) use because of the unsuitability of the use for the zone (refer Hampton 256). 137 The Tribunal cautions against this argument on the grounds that the same note goes on to prescribe that the Council 'may refuse or impose conditions on any development of the land'. 138 Explanation is drawn from note 1 which distinguishes between an application for use of land and an application for development of land, even though they are usually consolidated into the one application. 139 In the case of this review, the Tribunal is dealing with both a change of use and a development involving substantial additional floor space. On this basis, the responsible authority remains entitled to determine a refusal of an inappropriate development. 140 In the separate context of a hypothetical application for a change of use of the restaurant floor space to another 'P' (or permitted) use, without any associated physical development of the land, it is accepted that the use should not be refused, provided the proposed use complies with all the relevant development standards and any requirements of the Scheme. This obligation to comply with relevant development standards and requirements of the Scheme is set out in cl 4.3.3(b). 141 Neither of these circumstances, however, ultimately affects the Tribunal's conclusions in respect of the issues as discussed.
Conclusion 142 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the development application for the extended use of the premises, as a butcher's shop should be dismissed. 143 In this circumstance, it is not necessary to further consider or determine the question of appropriate conditions of any approval.
Orders (Page 26)
2. The decision of the respondent made on 8 February 2011 to refuse development approval for extension of the butcher's shop at No 102 (Lot 4) Wanneroo Road, Yokine is affirmed. |