DCSC PTY LTD and PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
[2017] WASAT 114
•23 AUGUST 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DCSC PTY LTD and PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 114
MEMBER: MS N OWEN-CONWAY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 1 AND 2 FEBRUARY 2017
DELIVERED : 23 AUGUST 2017
FILE NO/S: DR 475 of 2015
BETWEEN: DCSC PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Planning development application - Retail sale of petrol and convenience goods - Land use classification - Convenience store - Traffic safety and convenience - Pedestrian traffic safety and convenience - Amenity, noise, gas and odour - Risk - Licence to be issued and applied for pursuant to the Dangerous Goods Safety Act 2004 and Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 - Requirements of risk assessment and continuous risk assessment - Whether works associated with use permitted by Local Planning Scheme can be refused - Exercise of discretion where proposed use classification is permitted - Zoning Table in Local Planning Scheme and clauses related thereto - Adopted planning policies, guidelines and strategies imposing controls on development - Consideration and due regard given to all relevant deemed provisions in Local Planning Scheme when determining a development application - Approval granted on condition - Turns on own facts
Legislation:
City of Busselton Local Planning Scheme No 21, cl 1.5, cl 1.6, cl 1.6(c)(iii), cl 1.7.1, cl 1.7.1(a), cl 1.7.3, cl 2, cl 4.1.1, cl 4.1.2, cl 4.2, cl 4.2.2, , cl 4.3, cl 4.3.1, cl 4.3.2, cl 4.3.5, cl 4.3.5(d), cl 4.4.1, cl 5.19 cl 5.23, cl 7.5, cl 9.1, Pt 4, Sch 1
Dangerous Goods Safety (Storage and Handling of Nonexplosives) Regulations 2007 (WA), reg 4, reg 26, reg 48(2), regs 51 - 67, reg 121, Div 2
Dangerous Goods Safety Act 2004 (WA), s 4
Environmental Protection (Noise) Regulations 1997 (WA)
Interpretation Act 1984 (WA), s 31(2), s 32(2), s 43(1)
Planning and Develolpment (Local Planning Schemes) Regulations 2015 (WA), reg, 2, reg 10, Sch 2, cl 1, cl 43(2), cl 60, cl 63, cl 67, Pt 5, Pt 8
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 7, reg 18, reg 18(2)
Planning and Development Act 2005 (WA), s 4, s 7, s 69, s 72, s 87, s 87(4), s 171A(2)(ba), s 252(1), s 256, s 257A, s 257B, Pt 14, Sch 7, cl 6
State Administrative Tribunal Act 2004 (WA), s 3, s 17(1), s 17(3), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 31(1), s 31(2), s 37(3)
Result:
Decision of Southern Joint Development Panel made 14 December 2015 and affirmed on 14 November 2016 is set aside
Application for development approval granted subject to specific conditions
Summary of Tribunal's decision:
The applicant sought approval for the development of land within the Business Zone as identified by the map and legend of the City of Busselton Local Planning Scheme No 21, for the use as a Convenience Store at which the applicant intended to sell petrol to the public. The Tribunal had determined the preliminary issue concerning the correct use classification of the applicant's application for development approval and determined that it was correctly classified as a 'Convenience Store' as defined by the Local Planning Scheme No 21. The Southern Joint Development Assessment Panel received revised plans in support of the applicant's application for development approval and pursuant to a Tribunal order to reconsider the application for development approval, again refused the application.
The Tribunal concluded that the permitted use classification, Convenience Store, as identified in the Zoning Table of the Local Planning Scheme No 21 determined that the use classification was suitable for the land in issue and that the use classification satisfied the Business Zone objectives and policies. The permitted use classification implied that obvious and necessary modifications to the land to conduct the use were permitted. In any event the application for development approval was required to be considered and approved with respect to all other requirements of the Scheme which encompassed the method of operation of the proposed development and the specific details concerning the works that were required on the Land. It was open to the Southern Joint Development Assessment Panel to consider the position, orientation, number, scale, design and bulk of the modifications on the land as well as the manner of operation of the business proposed to be conducted by the applicant when considering whether or not to grant approval or to refuse the application or to impose conditions on any approval granted.
The Tribunal concluded, after having given consideration to all matters raised by both parties and in particular, cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, that the applicant's application for development approval should be granted subject specified to conditions.
Category: B
Representation:
Counsel:
Applicant: Mr M Hotchkin and Mr P Dobson
Respondent: Mr T C Russell and Mr J M Misso
Solicitors:
Applicant: Hotchkin Hanly
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Parkes v Environment Secretary (1978) 1 WLR 1308
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Puma Energy Australia and City of Cockburn [2016] WASAT 36
St Patrick's Community Support Centre and City Of Fremantle [2007] WASAT 318
University of Western Australia v City of Subiaco and Anor [1980] WASC 28
REASONS FOR DECISION OF THE TRIBUNAL:
The application
On 24 December 2015, DCSC Pty Ltd (applicant) filed in the Tribunal an application for review of the decision by the Southern Joint Development Assessment Panel (SJDAP), made on 14 December 2015, to refuse the applicant's development approval application reference number DAP/15/00888 (DA). The decision to determine the applicant's DA by refusal of the same is hereafter referred to as the SJDAP decision. The applicant's DA expressly provides that it sought approval to develop and use the land situated at Lot 108 (57) Dunn Bay Road in Dunsborough (Land) as a 'Convenience Store' as defined by the City of Busselton Local Planning Scheme No 21 (LPS 21). The DA was accompanied by and is comprised of plans referred to as DA02 (revision B), DA04 (revision B), DA05, DA06 (revision B) and DA07 (revision B) (Exhibit 1). For the reasons explained below, the respondent is the presiding member of the SJDAP but in these reasons shall be referred to as the SJDAP.
The determined preliminary issue
The question whether the DA was an application for the development and use of the Land as a 'Convenience Store' or as a 'Service Station', both defined by LPS 21, was determined in favour of the applicant, following a hearing of the preliminary issue (DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104). On 25 August 2016 the Tribunal ordered that:
1.The preliminary issue as to whether the proposed land use is correctly classified as 'Convenience Store' or as 'Service Station' under the City of Busselton Local Planning Scheme No 21 is answered as follows:
The proposed use is correctly classified as 'Convenience Store'[.]
There was no appeal from this decision by the SJDAP.
The DA and the Tribunal's review jurisdiction
The DA was made on 28 August 2015. The estimated cost of the proposed development is expressly stated in the DA to be $2.1 million (Exhibit 1). The Land is situated in the locality of Dunsborough within the City of Busselton (City) and therefore beyond the District of the City of Perth. By reason of s 171A(2)(ba) of the Planning and Development Act 2005 (WA) (PD Act) and reg 6 and reg 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations), the applicant was entitled to elect to have the DA determined by a Development Assessment Panel (DAP), rather than the City as the relevant responsible authority (cl 2 and cl 9.1 of LPS 21). The applicant attached to the DA the prescribed form, with Pt A thereof completed (reg 6 and reg 7 DAP Regulations), and thereby elected to have the DA determined by a DAP in this case the SJDAP
Regulation 18(2) of the DAP Regulations confers jurisdiction on the Tribunal to review a determination to refuse a DA by the appointed DAP:
… as if the determination … were a determination of a responsible authority.
The application to review the SJDAP decision is to be made to the Tribunal and determined pursuant to Pt 14 of the PD Act (reg 18(2) of the DAP Regulations). For the purposes of such an application, reg 18 of the DAP Regulations provides that the respondent to any review proceedings is 'the presiding member' of the relevant DAP. For this reason, the presiding member of the SJDAP is the named respondent in this proceeding.
For the reasons referred to above, the SJDAP decision to refuse the applicant's DA is a reviewable decision as provided for by s 3 and s 17(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and falls within the Tribunal's review jurisdiction (s 17(1) of the SAT Act).
The Tribunal's powers on review
The review is by way of hearing de novo on the merits (s 27(1) of the SAT Act). The Tribunal is not confined to the material before the original decisionmaker or the stated grounds of the review (s 27(2) of the SAT Act) and may rely on new material whether or not it existed at the time when the original decision was made (s 27(3) of the SAT Act). The Tribunal's objective, upon review, is to produce the correct and preferable decision at the time of the decision upon review (s 27(2) of the SAT Act).
In exercising the Tribunal's review jurisdiction, the Tribunal may exercise the power of the original decisionmaker (s 29)(1) of the SAT Act) along with any further powers conferred by the enabling Act (the PD Act) and the SAT Act. Ultimately, the Tribunal may affirm, vary or set aside the SJDAP decision and in the latter case, may substitute its own decision or alternatively refer the matter to the original decisionmaker for reconsideration with or without directions (s 29(3) of the SAT Act).
Orders sought
The applicant seeks an order that the SJDAP decision be set aside and the Tribunal substitute its own decision to approve the applicant's DA made on 28 August 2015 but revised on 16 October 2016. The SJDAP contends that the Tribunal should affirm the SJDAP decision. The Tribunal notes the applicant's statement of issues facts and contentions (ASIFC) concedes that the urged substituted approval of the DA may be conditional where the Tribunal concludes that the conditions are 'reasonably necessary to govern the proposed development' (ASIFC paragraph 67).
History of the proceedings before the Tribunal
The proceeding was listed for 13 directions hearings, two final hearings (including the preliminary issue) and a mediation. The parties were directed during the course of the proceedings, to exchange and file relevant material, submissions and statements of issues facts and contentions; afforded two substantive hearings; provided with the opportunity to call or give evidence, examine, cross-examine and reexamine witnesses and provide oral and written submissions.
The proceeding was listed for mediation where it was agreed between the parties that the SJDAP be invited to reconsider the SJDAP decision pursuant to s 31(1) of the SAT Act. The applicant advanced revised plans and details for the SJDAP's reconsideration. The revised plans and details advanced by the applicant were different to those advanced in the applicant's original DA, in respect of the location of various proposed improvements on the Land. The Tribunal's order made pursuant to s 31(1) of the SAT Act required the SJDAP's reconsideration to take place by 11 November 2016. By consent of the parties, the time for the reconsideration was extended to 14 November 2016.
The SJDAP's reconsideration made on 14 November 2016, by its terms, took into account the revised plans and details referred to as 'DA02 (revision G), DUNSL0005, DUNSL0008 and DUNSL0009' in the applicant's reconsideration notice (Respondent's Bundle (RB) at pages 1060 1063). After consideration of the aforementioned plans, the SJDAP again determined to refuse the DA. That is, pursuant to s 31(2) of the SAT Act, the SJDAP affirmed the SJDAP decision, albeit that the reconsideration was made in the context of different plans and details to those attached to the original DA.
On 23 November 2016, Eldorado Pty Ltd, the proprietor of properties at 59 and 61 Dunn Bay Road, Dunsborough (the neighbouring properties to the west of the Land) sought to intervene in this review. The intervention application was opposed by the applicant and the SJDAP neither supported nor objected to the same. The intervention application was listed for hearing on 9 December 2016. On 9 December 2016, the intervention application hearing was vacated. The Tribunal granted Eldorado Pty Ltd permission to file submissions 'in respect of the matters arising in this proceeding', with the agreement of the applicant, pursuant to s 37(3) of the SAT Act. Eldorado Pty Ltd's submissions were filed on 7 December 2016 and received during the final hearing as submissions by the intervener.
The final hearing of the review took place on 1 and 2 February 2017.
Documents
The following documents were exhibited during the course of the final hearing:
| 1 | Exhibit | Application and attachments, dated 24 December 2015 |
| 2 | Exhibit | Respondent's Statement of Issues, Facts & Contentions, dated 2 December 2016 |
| 3 | Exhibit | Applicant's SIFC, dated 21 December 2016 |
| 4 | Exhibit | Respondent's Draft 'Without Prejudice' Conditions, dated 13 January 2017 and amended conditions dated 1 February 2017 |
| 5 | Exhibit | Applicant's response to 'Without Prejudice' Conditions, dated 30 January 2017 |
| 6 | Exhibit | Respondent's Section 24 Documents, dated 5 December 2016 |
| 7 | Exhibit | Respondent's supplementary s24 Bundle |
| 8 | Exhibit | Witness statement of Paul Scott Needham dated 13 January 2017 |
| 9 | Exhibit | Witness statement of Joe Algeri dated 13 January 2017 |
| 10 | Exhibit | Witness statement of Geoffrey Patrick Stewart dated 17 January 2017 |
| 11 | Exhibit | Witness statement of Emmerson Richardson dated 13 January 2017 |
| 12 | Exhibit | Witness statement of Emmerson Richardson (responsive witness) statement dated 30 January 2017 |
| 13 | Exhibit | Witness statement of Tim Reynolds dated 16 January 2017 |
| 14 | Exhibit | Witness statement of Ronald Andrew Visser dated 24 January 2017 |
| 15 | Exhibit | Witness statement of Donald Nigel Veal dated 25 January 2017 |
| 16 | Exhibit | Witness statement of Paul Basil Kotsoglo dated 25 January 2017 |
| 17 | Exhibit | Puma Gwelup Data table |
| 18 | Exhibit | Puma Mount Melville Albany Data table |
| 19 | Exhibit | ITE extract |
Exhibits 6 and 7 shall be referred to as the Respondent's Bundle (RB).
The SJDAP decision
The conclusions made in the reasons for the SJDAP decision (RB page 1082) identify six reasons for refusal by the SJDAP as follows:
1.The proposed development is inconsistent with Objective No. 2 and Policies a) and e) of the 'Business' zone as the proposal will fragment the town centre by excluding land to the west and north of the property along Dunn Bay Road from being able to connect in a meaningful way to the established main street.
2.The proposed development is inconsistent with the strategic direction of the town centre established in the Local Commercial Planning Strategy and Dunsborough Town Centre Conceptual Plan.
3.The proposed development will have a detrimental impact on the visual and pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not contain a façade that addresses the streetscape or promotes pedestrian amenity and is inconsistent with the established character and likely future amenity of the area.
4.The proposed development is likely to result in an increase of pedestrian and vehicular conflict on Dunn Bay Road and the access to and from the site is inadequate for vehicles and tankers.
5.The proposed development will detrimentally impact on the development and use of adjoining lots and potentially conflicts with future sensitive land uses permitted on these lots including residential development, tourist accommodation, offices, restaurants and shops.
6.The removal of on-street parking is inappropriate and inconsistent with the function of Dunn Bay Road as a 'main street' for the town centre.
The conclusions made in the reasons for the affirmation of the SJDAP decision (RB page 1055) identify six reasons for refusal as follows:
1.The proposed development is inconsistent with Objective No. 2 and Policies a) and e) of the 'Business' zone as the proposal will fragment the town centre by excluding land to the west and north of the property along Dunn Bay Road from being able to connect in a meaningful way to the established main street.
2.The proposed development is inconsistent with the strategic direction of the town centre established in the Local Commercial Planning Strategy and Dunsborough Town Centre Conceptual Plan.
3.The proposed development will have a detrimental impact on the visual and pedestrian amenity of Dunn Bay Road and Cyrillean Way. It does not contain a façade that addresses the streetscape or promotes pedestrian amenity and is inconsistent with the established character and likely future amenity of the area.
4.The proposed development will detrimentally impact on the development and use of adjoining lots and potentially conflicts with future sensitive land uses permitted on these lots including residential development, tourist accommodation, offices, restaurants and shops.
5.The removal of on-street parking is inappropriate and inconsistent with the function of Dunn Bay Road as a 'main street' for the town centre.
6.The proposed development will generate traffic such that there will be an unacceptable impact on traffic flows and increase conflicts between vehicles and pedestrian during peak times.
The traffic issues at that point crystallised into the following considerations:
(a)whether the proposed development would interfere with and have a detrimental impact on the proposed amenity, and streetscape of the Dunn Bay Road, and
(b)whether the proposed development would have a negative impact on pedestrian access along Dunn Bay Road and traffic on Dunn Bay Road;
because of the asserted increase traffic generation at 'peak times' and the proposed development's need for a wide crossover access for, inter alia, refuelling tankers.
The remaining planning issues at that point crystallised into the following:
(a)that the proposed development was inconsistent with the:
(i)'established character' of the area;
(ii)'likely future amenity of the area';
(iii)western and northern neighbouring properties connecting 'in a meaningful way to the established main street';
(iv)'established' strategic direction of the town centre;
(v)future sensitive land uses permitted on adjoining lots including residential development, tourist accommodation, offices, restaurants and shops;
(b)that the proposed development would have a detrimental impact on the visual amenity of both Dunn Bay Road and Cyrillean Way;
(c)that the proposed development would fragment the town centre;
(d)that the proposed development did not contain a façade that:
(i)addressed the streetscape;
(ii)promoted pedestrian amenity;
(e)that the removal of one on-street car parking bay was inconsistent with the 'main street' of the town centre;
(f)that Dunn Bay Road was a 'main street' of the town centre.
The revised plans and details of the applicant's DA for reconsideration
The applicant's application, on reconsideration by the SJDAP, was based on revised plans provided to the SJDAP on or about 19 October 2016. The revised plans and details are summarised by the applicant's solicitor in a letter dated 19 October 2016 (RB page 1057) and was accompanied by the revised plans previously referred to, including a proposed site plan, floor plans, elevations and a traffic management plan (RB pages 1060 1075) and presented in a table with comments as follows:
| Proposal Element | Modifications | Additional comments/Justification |
| Built Form | Relocating the retail building from the western boundary to front the corner of Dunn Bay Road and Cyrillean Way. | Provides an active street corner, which accords with the City's desire for development consistent with 'main street' design principles. |
| Minor increase to the floor area of the retail building from 188m² to 191m². | ||
| A service window to the southern wall of the retail building providing for the sale of coffee. | Providing activation and interaction with Dunn Bay Road. | |
| A covered alfresco dining and outdoor seating area. | Providing further activation and interaction with Dunn Bay Road. | |
| 2.5m wide landscaping strip along the extent of the western lot boundary. | Softens the visual impact of the development on neighbouring property. | |
| Landscaping strips along the Dunn Bay Road and Cyrillean Way lot boundaries. | Providing a soft street edge and pedestrian amenity. | |
| Green wall installations along the eastern wall of the retail building. | Providing visual interest and building articulation towards Cyrillean Way. | |
| Indicative location for public art identified on the southern wall of the retail building. | Creates visual interest along the primary street frontage and articulation. | |
| Parking & Access | Provision of 7 car parking bays fronting the retail building and 3 parallel car parking bays along the western lot boundary. | 2 car bays in excess of the 8 required under the City's Local Planning Policy 2 Traffic and Transport Policy. |
| Relocation and increase in width (from 6m to 9m) of the proposed Dunn Bay Road crossover. | Provides safe and efficient traffic movements to and from the site. | |
| Provision of a bicycle rack with 4 spaces, within the alfresco area and beneath the awning. | Encourages alternate travel options and facilities for local residents and tourists. | |
| New footpath along Cyrillean Way. | Promotes greater pedestrian amenity along Cyrillean Way. | |
| Front of store footpath connecting with the Dunn Bay Road verge footpath. | Improving walkability, and pedestrian access and safety. | |
| Signage | Relocation of the proposed pylon sign from the corner of Dunn Bay Road and Cyrillean Way to adjacent to the western lot boundary. | Allows for activation of the street corner. |
In respect of the traffic management plan the applicant, through its solicitor, commented as follows:
The enclosed Traffic Management Plan (TMP) includes the amended site layout with three options for the tanker access as discussed at mediation, albeit the tanker does not stay lane correct. This is the preferred option. The TMP recommends delivery times avoid weekday peak periods to minimise to alleviate the issue.
A modified layout is also shown with two tanker access options staying lane correct. The truck cannot stay lane correct whilst negotiating the Dunn Bay Road/Cyrillean Way intersection, which is already constructed.
The statutory framework
Section 252(1) of the PD Act, within Pt 14 of the PD Act, relevantly provides:
Subject to subsection (3), if
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has
(i)refused the application
…
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
Whilst 'responsible authority' is defined by s 4 of the PD Act to mean the local government in the case of a local planning scheme, it is to be remembered that this application was to be determined by the SJDAP, by reason of reg 18 of the DAP Regulations 'as if' the determination were a determination of a responsible authority'.
The phrase 'planning scheme' in s 252(1) of the PD Act is defined by s 4 of the PD Act, relevantly, to mean 'a local planning scheme' and is further expressed to include:
(a)the provisions of the scheme being
(i)the provisions set out in the scheme; and
(ii)any State planning policy that, with any modifications set out in the scheme, has effect under section 77(2)(b) as part of the scheme; and
(iii)any provisions that have effect under section 257B(2) as part of the scheme;
and
(b)all maps, plans, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme.
Section 87(4) of the PD Act provides that:
A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act. (Tribunal emphasis)
LPS 21 was prepared pursuant to s 72 of the PD Act and originally published in the Government Gazette on 15 October 2014. There have been further amendments that have been the subject of subsequent publication in the Government Gazette on various dates up until 2 December 2016 and that is the version that has force and effect as if it were enacted by the PD Act, as at the date of the Tribunal's decision. However, the version published in the Government Gazette on 2 December 2016 does not differ relevantly from that version at RB pages 527 - 726 being published as at 23 September 2016.
Section 69(1) of the PD Act provides that a local planning scheme may be made under the PD Act:
… with respect to any land
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
Schedule 7 of the PD Act identifies the matters which may be dealt with by a local planning scheme and includes the following:
…
6.Zoning
(1)Zoning of the scheme area for appropriate purposes.
(2)Designation of users in zones as permitted, prohibited or requiring approval.
7.Controls for land management
Controls for land or site management for matters to which this Act relates.
8.Development standards
Standards for the development of any class or kind of building, structure, work or advertisement including standards in respect of
(a)size;
(b)appearance;
(c)placement;
(d)location;
(e)number;
(f)landscaping;
(g)open space;
(h)parking;
(i)measures to maximise energy efficiency;
(j)any other activity or requirement arising from the development.
9.Development controls
Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest.
Section 69(1) of the PD Act is expressed to apply 'subject to s 256 and the regulations made under it and s 257A and 257B' (s 69(3) of the PD Act). Section 256(1) of the PD Act empowers the Minister to:
…make regulations prescribing provisions that deal with any or all of the following
…
(a)carrying out the general objects of local planning schemes;
(b)any matter set out in Schedule 7.
The Minister is empowered to regulate the objects of a local planning scheme (s 69(1)(b) and Sch 7 of the PD Act) and the carrying out of those objects by promulgating regulations. In making any such regulations the Minister must designate whether the regulations is a 'model provision' (s 256(5)(a) of the PD Act) or a 'deemed provision' (s 256(5)(b) of the PD Act. LPS 21, having been approved by the Minister and published in the Government Gazette as provided for by s 87 of the PD Act, takes effect as if enacted by the PD Act and is a local planning scheme to which a deemed provision may apply.
A deemed provision is one to which s 257B of the PD Act applies which provides, relevantly:
…
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
On 19 October 2015, the substantive provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force and effect (reg 2 of the LPS Regulations).
Regulation 10 of the LPS Regulations provides:
(1)The provisions in Schedules 1 and 2 are prescribed for the purposes of section 256 of the Act.
…
(4)The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text.
In this proceeding, the parties do not dispute that the relevant documents and matters that comprise the local planning scheme is LPS 21 including, all text, maps, plans specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme map, including the Zoning Table referred to in cl 4.3 of LPS 21 (RB pages 562 - 571) and the deemed provisions imposed by reason of the promulgation of the LPS Regulations, described and identified as those clauses in Sch 2 of the LPS Regulations (deemed provisions).
Clause 1.5 of LPS 21 relevantly provides:
The purposes of the Scheme are to
(a)set out the local government's planning aims and intentions for the Scheme area;
…
(c)zone land within the Scheme area for the purposes defined in the Scheme;
(d)control and guide land use and development;
(e)set out procedures for the assessment and determination of applications for planning approval;
(f)make provision for the administration and enforcement of the Scheme.
Clause 1.6 identifies the aims of LPS 21 and provides
The aims of the Scheme are
(a)to provide for the development and, where necessary, the improvement of the City of Busselton in physical, social and economic terms (and, in particular, to broaden its economic base) and for orderly and economic development and optimum use of its land and other resources, consistent with the conservation of important natural and manmade features, and to do so in such a way that the likely need and aspirations of the people of the City, the region and the State will be provided for and realised;
(b)to provide a comprehensive planning instrument for the City that is clear and explicit but which provides flexibility in its application;
(c)to provide resourceful guidance to
(i)the preparation of Development Guide Plans;
(ii)public authorities in respect of the likely future needs of the City;
(iii)the private sector in terms of future development opportunities and requirements; and
(iv)the community in respect of the manner in which the effects of growth and change are proposed to be managed;
(d)to ensure that rational decisions are made with regard to land use and that the assessment and classification of land resources on the basis of capability and suitability are an essential facet of the planning process;
(e)to facilitate the provision of public amenities and community support services consistent with the development and growth of the City;
(f)to ensure that growth and development of the City occurs in a way which preserves existing environmental qualities and minimises adverse environmental impacts;
(g)to ensure that existing and future residents enjoy a range of attractive living environments and have access to the widest possible range of services and amenities;
(h)to protect and enhance areas within the City identified as being of significant environmental value.
(Tribunal emphasis)
The City's intention, as expressed by the purposes and aims of LPS 21, is that LPS 21 is to provide clarity to all those who may rely upon it, as to the plan that the City has for the scheme land.
Clause 1.7.1 of LPS 21 provides:
Unless the Scheme or the context otherwise requires, words and expressions used in the Scheme have the same meaning as they have
(a)in the Planning and Development Act; or
(b)if they are not defined in that Act
(i)in Schedule 1[.]
Schedule 1 of LPS 21 defines the term 'Convenience Store'. For the purposes of this proceeding the deemed provisions definitions are not inconsistent with any of the definitions contained within Sch 1 of LPS 21, although they contain additional relevant definitions.
Consistently with cl 6 of Sch 7 of the PD Act, LPS 21 identifies zones of land for particular purposes and designates 'uses' that are 'permitted, prohibited or require approval'. The word 'zone' is not defined in the PD Act nor in LPS 21. It is, however, defined in cl 1 of the deemed provisions as follows:
zone means a portion of the Scheme area identified on the Scheme Map as a zone for the purpose of indicating the controls imposed by this Scheme on the use of, or the carrying out of works on, land, but does not include a reserve or special control area.
Part 4 of LPS 21 is concerned with 'zones'. Clause 4.1.1 of LPS 21 classifies the scheme land identified in scheme maps into 14 zones. The zones are delineated on the scheme map according to the legend on the scheme map (cl 4.1.2). That is, there are 14 zones identified in the scheme map that indicate the different controls imposed by LPS 21, 'on the use of or the carrying out of works on' scheme land.
The definition of 'development' is contained in s 4 of the PD Act and applies to LPS 21 by reason of cl 1.7.1(a). The term 'development' in s 4 of the PD Act is defined as follows:
… means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the Land;
(b)the carrying out on the Land of any excavation or other works[.]
The PD Act does not define 'use'. LPS 21 does not define 'use' and the deemed provisions do not define 'use'. The definitions in (a) and (b) of the definition of 'development' in the PD Act exactly mirror the definition of 'works' as provided for in cl 1 of the deemed provisions:
… in relation to land, means
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the Land; and
(b)the carrying out on the Land of any excavation or other works[.]
The definition of 'development' in the PD Act expressly combines both 'use' and what is defined as 'works' in the deemed provisions and it is clear that within the definition of development, 'use' is separate to that which appears in (a) and (b). Together the term 'use' and the definition of 'works' referred to above, and the definition of 'development' as provided for in the PD Act each, encompasses the two meanings of 'use' referred to by Burt CJ in University of Western Australia v City of Subiaco and Anor [1980] WASC 28 (11 March 1980) (UWA v City of Subiaco) at page 7, citing Lord Denning in Parkes v Environment Secretary (1978) 1 WLR 1308 (Parks v Environment Secretary) at page 1311:
… activities which are done in…or on the Land but do not interfere with the actual physical characteristics of the Land
(first sense) and
... activities which result in some physical alteration to land which has some degree of permanence to the Land itself
(second sense).
The Zoning Table refers only to 'use' and in that respect, given its specific purpose and given that LPS 21 devotes a number of provisions to the control of 'works', the term is used in the first sense in the Zoning Table (UWA v City of Subiaco).
The terms 'Business' or 'Business Zone' are not defined in LPS 21, the deemed provisions nor the PD Act. There is no dispute that the Land falls within the area delineated on the scheme map as the 'Business' zone. The objectives and policies of each zone label is the subject of cl 4.2 of LPS 21. Clause 4.2 of LPS 21 identifies the meaning of each zone label referred to in cl 4.1.1 by reference to the express objectives and policies specified as applicable for each zone label. Clause 4.2.2 of LPS 21 articulates the 'objectives' and 'policies' of the 'Business Zone' as:
Objectives
(a)To provide for convenientlylocated shopping and other service associated commercial activities to service each centre's catchment area, as determined by the relevant planning framework.
(b)To maintain and reinforce the viability of existing commercial centres, including those supporting adjoining agricultural areas.
Policies
(a)To encourage the provision of retail and other business services and associated development to add to the strength and diversity of existing centres.
(b)As far as is practical and appropriate to allow market forces to influence the location of retail and office uses within existing centres with minimal intervention by the local government.
(c)To allow residential development only where it is a component of commercial development.
(d)To utilise and strengthen the existing town centres of Busselton and Dunsborough as the primary retail and commercial centres of the City by active discouragement of any new 'out of town' shopping centres other than neighbourhood shopping centres, convenience stores and the like.
(e)The consolidation of land to assemble larger land parcels suitable for integrated development or redevelopment is encouraged and supported. Fragmentation of land, unless it is part of an overall plan for integrated development or redevelopment, will generally not be supported.
In this proceeding, there was no expert evidence concerning the 'viability of the existing commercial centres' or the 'viability impact of the proposed development and use' referred to in objective (b) above. There were non-expert statements made by a number of witnesses about the 'need' for the proposed development or the economic impact of the proposed development on other nearby similar businesses, but such statements are not reliable as opinion evidence and in any event the need for such a business and its impact on competitors within the locality is not a relevant factor for the Tribunal's consideration in this proceeding, given the direction contained in cl 4.2.2 of LPS 21.
The reference to 'as determined by the relevant planning framework' in Business Zone objective (a) referred to above, includes a reference to the Zoning Table, as it forms part of the 'relevant planning framework' of LPS 21 and the deemed provisions.
Clause 4.3 of LPS 21 refers to the Zoning Table and cl 4.3.1 of LPS 21 states:
Table 1 Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones[.]
(Tribunal emphasis)
Although LPS 21 provides for controls over land within a zone and those controls extend to 'use' and 'works' which together comprise 'development' for the purposes of the PD Act, the Zoning Table on its face is relevant only to 'use' of land within a zone.
Clause 4.3.1 of LPS 21 proceeds to instruct how the Zoning Table is to operate:
... The permissibility of any uses is determined by crossreference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
In short, the intersection of the vertical and horizontal axes of the Zoning Table identifies a letter/symbol. In this proceeding, the relevant letter/symbol is 'P'.
Clause 4.3.2 of LPS 21 provides the legend to decipher the letters/symbols found within the Zoning Table. Consistently with cl 6 of Sch 7 to the PD Act, the definition applicable to each letter/symbol describes whether the use is 'permitted, prohibited or requiring approval'. Clause 4.3.2 provides that the symbols used in the Zoning Table have the following meanings:
'P'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
'A'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 10.4;
'X'means a use that is not permitted by the Scheme.
To the extent that the Zoning Table intends or aims to clearly identify to public and private interests alike the controls applicable to scheme land in a zone, where it identifies that the use classification is permitted in a particular zone, the City, whose task it was to formulate the scheme, has concluded that the specific use classification conforms with the objectives and policies relevant to that zone. In the case of a 'Convenience Store' within the 'Business Zone' the use classification is described as 'P'. Provided that the Convenience Store use complies with the 'relevant development standards' and 'the requirements of the Scheme' that is, any other requirements of the scheme there is no discretion to refuse the application based on the use classification. As cl 4.3.1 of LPS 21 provides, the Zoning Table is indicative of the degree of permission of use classifications in specified zones, but that indication remains subject to the balance of the provisions in LPS 21, so that if there are specific provisions concerning a particular aspect or feature of the application for development (for example: bulk, size and number of necessary structures or other structures, hours and manner of operation, parking, traffic, noise issues), the permission indicated in the Zoning Table may be overtaken by other factors that result in the specific application for development, identified by the plans and details of the application, being refused. In such a situation the application for development is not refused because the use classification is not permitted.
The role of the Zoning Table in LPS 21 is to indicate the City's determination concerning a specified defined use classification's suitability to the specified zone and the zone objectives and policies referred to in cl 4.2. The scheme map and legend indicates which sites are determined by the City to be suited to the specified zone policies and objectives. There is no room for the decision-maker to reconsider those issues because that is the purpose of the scheme map, the legend and the Zoning Table. If the City had been unsure whether all the sites in the Business Zone are suitable for use as a Convenience Store, then the Zoning Table should have reflected that by specifying 'D' or 'A'. If the City had been certain that none of the sites in the Business Zone are suitable for use as a Convenience Store, then the Zoning Table should have reflected that position by specifying 'X'. To that extent the Tribunal concludes that the assessment whether the use classification is suited to the zone, by reference to the objectives and policies specified for the Business Zone in cl 4.2.2 of LPS 21, is determined by the Zoning Table in the affirmative as indicated by the 'P' symbol.
In every case, whether the proposed development use and works is permitted is a question of statutory construction of LPS 21 as a whole (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and the Zoning Table indicates a control over the use of scheme land. LPS 21, read as a whole, provides that a use classification in a zone that is permitted implies that the necessary and obvious additions or modifications to the scheme land that are necessary to conduct the activities referred to in the permitted use classification definition, are also permitted but subject to the remaining requirements of LPS 21. To conclude that the use is permitted but approval may be withheld because of the obvious and necessary works to perform the activities comprised in the use, would render the Zoning Table otiose and would not meet the express purposes and aims of clarity of LPS 21.
The SJDAP's opening submissions concede that the applicant's application for use of the Land as a defined Convenience Store complies with the relevant Business Zone development standards identified in cl 5.19 to cl 5.23 of LPS 21 or that with conditions it could be compliant with the same (paragraph 21 of the SJDAP's opening submissions). The SJDAP, however, contends that the permitted use must still comply with 'the requirements of the Scheme' which extends to assessing whether the works necessary for the permitted activity to take effect are suitable for the site within the Business Zone. For the reasons explained above, the Tribunal rejects that proposition and restates that it is not a question of the nature of the works being 'suitable' to the site, but rather, whether the proposed development, as a whole, meets the terms of LPS 21, in light of the fact that the use classification is permitted in the Business Zone and on scheme land within that zone and, specifically on the Land.
The applicant contends that if the use is 'permitted' by the Zoning Table then the decisionmaker's discretion is very much more limited and a refusal of the development application on the basis of the suitability of the use to the subject site is not open to the decisionmaker and the balance of the decisionmaker's considerations extend to the application of conditions to meet the development standards and conditions of the Scheme in question (ASIFC paragraphs 24 32). The applicant asserts that this interpretation arises from the Zoning Table itself. For the reasons referred to above, the Tribunal rejects that proposition as well.
In further aid of that the applicant's contention that once the Zoning Table identifies the use in the zone as permitted, then the use is permitted 'as of right' the applicant refers to the following notes which appears in italics at the conclusion of cl 4.3.5 and before the commencement of cl 4.4.1 of LPS 21:
Notes: 1.The planning approval of the local government is required for the development of land in addition to any approval granted for the use of land. In normal circumstances one application is made for both the use and development of land.
2.The local government will not refuse a 'P' use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standards or requirements of the Scheme, and may refuse or impose conditions on any development of the land.
3.In considering a 'D' or 'A' use, the local government will have regard to the matters set out in clause 11.2.
4.Unless otherwise provided for, the local government must refuse to approve any 'X' use of land. Approval to an 'X' use of land may only proceed by way of an amendment to the Scheme.
The SJDAP contends that these notes do not form part of LPS 21 and relies upon cl 1.7.3 LPS 21 which directs that:
Notes, and instructions printed in italics, are not part of the Scheme.
The deemed provisions contain no provisions concerning notes in italics or otherwise. Read literally, cl 1.7.3 of LPS 21 directs, as a matter of interpretation, that the italicized notes are not to be given any consideration when interpreting LPS 21.
To defeat the SJDAP's contention and the clear directive of cl 1.7.3 of LPS 21, the applicant relies upon the provisions of s 31(2) of the Interpretation Act 1984 (WA) (Interpretation Act) which relevantly provides:
An appendix or schedule to or a table in a written law, together with any notes thereto, forms part of the written law.
(Tribunal Emphasis)
It is not in dispute that the provisions of LPS 21 are 'subsidiary legislation' and also a 'written law' within the meaning of those phases as defined by the Interpretation Act. There is no dispute that the provisions of the Interpretation Act apply to LPS 21. The applicant relies on the decision of this Tribunal in 36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198 (36 Chester). The applicant asserts (ASIFC paragraph 20ff) that the Tribunal in 36Chester did not give full effect to the express words of a clause similar to cl 1.7.3 of LPS 21 because of the application of s 31(2) of the Interpretation Act. The applicant further asserts that the Tribunal in 36 Chester could have relied on s 43(1) of the Interpretation Act to strike down cl 1.7.3 as being inconsistent with s 31(2) of the Interpretation Act.
The Tribunal concludes that 36 Chester determined, as a matter of law, a very limited issue whether superscript 2 to the Zoning Table had legislative meaning. In that proceeding, the issue was how to interpret the Zoning Table and whether the the superscript 2 marked by a dagger symbol is a note that comprised part of the Zoning Table. In 36 Chester the superscript 2 marked by a dagger symbol appeared in the Zoning Table and at the foot of the Zoning Table, with an explanation of what it meant; did not appear elsewhere in the scheme under consideration and was not printed in italics. These facts are marked differences to the position in LPS 21.
Section 31(2) of the Interpretation Act is not a provision that is directed to interpreting notes in written laws. Rather, it is directed to appendices and schedules to or tables in written laws and it directs that such documents form part of the written law that they are appended or scheduled to or in which the table appears 'together with any notes thereto'. The 'notes thereto' refer to any notes applicable to the appendix or the schedule appended to or the table within the written law and not to a note in the written law generally.
The provisions of s 31(2) of the Interpretation Act and the decision in 36 Chester do not, in the Tribunal's view, support the applicant's contention that italicized notes 1, 2, 3, and 4 positioned between cl 4.3.5(d) and cl 4.4.1 of LPS 21 and several pages before the Zoning Table, form part of the Zoning Table or LPS 21 and have legislative operation.
The SJDAP also submits that s 32(2) of the Interpretation Act applies in this matter to direct that, as a matter of law, the notes in question in this proceeding do not have legislative operation and do not form part of LPS 21. The Tribunal concludes that s 32(2) of the Interpretation Act has no application in this proceeding because that provision is only concerned with 'marginal' or 'footnotes' to a written law that is, notes orientated in particular places within the written law (the margin or the foot of the written law). If the Tribunal is wrong in that view however, and the notes in issue in this proceeding are marginal or footnotes, then the provisions of s 32(2) of the Interpretation Act direct that such notes do not form part of the law and therefore do not form part of LPS 21.
In short, the Tribunal concludes that notes 1, 2, 3 and 4 that appear between cl 4.3.5(d) and 4.4.1 in italics do not form part of the written law, LPS 21. The Tribunal shall have no regard to those notes in determining the correct law applicable in this proceeding.
In complying with the other requirements of LPS 21, cl 60 of the deemed provisions relevantly direct that approval of the development must be obtained under Pt 8 of the deemed provisions. It is obvious from cl 63 of the deemed provision, concerning the material to accompany any application for development approval, that the 'works' and the proposed manner of the operation of the activities falling within the defined use classification are relevant in the consideration of whether to approve, refuse or impose conditions to any approval of the application.
A development application's proposal for the specific design, bulk, size, scale, orientation and number of fixtures and structures on the land, along with the proposed hours of operation, vehicular and pedestrian access, parking needs and location of parking bays are all matters that are not the subject of the Zoning Table but remain to be considered by the responsible authority in granting or refusing approval, in accordance with the requirements of LPS 21. It is therefore possible for a development proposal for a use classification that is permitted by reason the Zoning Table, to be refused because of the specific works or the manner of intended operation of the use for which approval is sought Puma Energy Australia and City of Cockburn [2016] WASAT 36 at [35] (Puma Energy). Alternatively, the operation of the permitted activities may be a basis to impose conditions, where on the facts the locality is sensitive to some aspect of the intended operation of the activities falling within the permitted use classification.
As the SJDAP does not dispute that the DA, based on the revised plans and details, meets the relevant development standards of LPS 21 or is capable of meeting the same, the Tribunal turns to the other requirements of LPS 21, relevantly.
Turning to the other requirements LPS 21, the applicant in its ASIFC agrees with the SJDAP's statement at paragraphs 19 and 20 of RSIFC that:
The matters that inform the exercise of discretion in relation to development control are set out at cl 67 of the PD (LPS) Regulations.
Clause 67 of the PD(LPS) Regulations has the effect of replacing cl 11.2 of [LPS 21] on the basis that the two provisions are inconsistent and in such circumstances the deemed provision applies: see Puma Energy Australia and City of Cockburn [2016] WASAT 36
Clause 67 of the deemed provisions, relevantly, provides:
In considering an application for development approval the [SJDAP] is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(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;
(h)any structure plan, activity centre plan or local development plan that relates to the development;
…
(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;
…
(p)whether adequate provision has been made for the Landscaping of the Land to which the application relates and whether any trees or other vegetation on the Land should be preserved;
…
(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;
…
(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;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Discussion\
In discussing the planning merits of the proposed works and the manner of intended operation of the proposed development, the Tribunal has examined planning documents to which the SJDAP asserted it was necessary to have due regard. The planning witnesses cited particular passages of those documents in support of their respective positions on the planning merits of the proposed development.
The Tribunal commenced its analysis by noting that it considers that when examining and considering a particular planning document, it is not appropriate to examine and consider passages cited in isolation, but it must examine and consider the context of the cited passages and the purpose for which the particular planning document as a whole was prepared.
Further, the Tribunal observes and concludes on the evidence of the planning material put before the Tribunal, that the preparation and adoption by the City of various planning documents, including LPS 21 amendments and development guide plans, as provided for at cl 7.5 of LPS 21, to control development applications in the Business Zone, remains, in significant instances, inchoate, if commenced at all. The City has undertaken significant work preparing what it has sometimes termed as 'strategies' to set out what it considers needs to be done next to impose controls on development in the Business Zone or in a number of instances started, the process of bringing into existence the 'strategies' in clear and precise written directives for use as a basis for development control but has not yet completed that process. The various documents cited by the SJDAP are considered below. In examining and considering the various planning documents, the Tribunal is mindful that LPS 21 was published in the Government Gazette on 15 October 2014.
Shire of Busselton Local Commercial Planning Strategy and Local planning Strategy
Section 5 of the Local Commercial Planning Strategy (Commercial Strategy) is concerned with 'Urban Design Principles'. Clause 5.3 deals specifically with 'Urban Design Principles' in Dunsborough. Under the heading 'Precinct Planning', Mr Algeri and Mr Needham, planning experts called by the SJDAP, cited from the Commercial Strategy (RB page 240):
As has been noted in various studies, Dunsborough ought to consolidate its commercial floor space in a 'Main Street' format … Despite significant changes, the current form of the town centre does not yet wholly reflect a Main Street' approach to urban design or land use planning.
Reference was made by them to 'built form' under clause 5.3.3 of the Commercial Strategy, which states (RB page 237):
•Key Principles: Develop a more cohesive, 'seaside' based architectural style and control the intrusion of poorer quality and ad hoc building styles.
The built form in Dunsborough is ad hoc with no cohesion or design theme evident. This should be addressed as a priority. There are opportunities to develop a 'seaside' theme which would further link the development of the town to its coastal location.
(iv)The development hereby approved shall not be occupied, or used, until the following conditions have been implemented:
(a)Landscaping and reticulation shall be implemented in accordance with the approved Landscape Plan and shall thereafter be maintained to the satisfaction of the City. Unless otherwise first agreed in writing, any trees or plants which, within a period of five years from first planting, are removed, die or, as assessed by the City as being seriously damaged, shall be replaced within the next available planting season with others of the same species, size and number as originally approved.
(b)All parking area(s) (including disabled bay), driveway(s) and point(s) of ingress and egress (including crossover(s)) shall be designed, constructed, sealed, drained and marked.
(v)Fuel tankers and other trucks servicing the development are only to access the site via left turn into Cyrillean Way and right turn out to Dunn Bay Road unless a written approval is granted by the City of Busselton to vary those access and egress routes.
(vi)Tanker deliveries of fuel, deliveries of goods to the store by truck and collection of waste are to occur only between the hours of 7am and 7pm Monday to Saturday or 9am and 7pm Sunday and public holidays.
(vii)A 1.8 metre high solid fence shall be erected along the western and northern boundaries of Lot 108.
I certify that this and the preceding [217] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER
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