Esplanade (Mandurah) Pty Ltd and City Of Mandurah
[2014] WASAT 60
•29 MAY 2014
ESPLANADE (MANDURAH) PTY LTD and CITY OF MANDURAH [2014] WASAT 60
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 60 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:334/2013 | 1 AND 15 MAY 2014 | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 29/05/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | ESPLANADE (MANDURAH) PTY LTD CITY OF MANDURAH |
Catchwords: | Town planning Outline development plan Outline development plan requirement for provision of commercial and community facilities Refusal of proposed modification of outline development plan to permit other uses including residential Relevance of outline development plan Whether uses in outline development plan should be treated as zones Whether residential development is permitted under currently operative outline development plan Whether parking, pathways and jetty constitute community facilities in accordance with scheme definition Whether proposed modified outline development plan is consistent with planning objectives and community expectations |
Legislation: | City of Mandurah Town Planning Scheme No 3, cl 4.11.1, cl 4.11.2.1, cl 4.11.2.2, cl 7.11.3.17, Table 2 Planning and Development Act 2005 (WA), s 242 State Administrative Tribunal Act 2004 (WA) |
Case References: | Nil |
Orders | On the application heard on 1 and 15 May 2014 by Senior Sessional Member John Adderley, it is on 29 May 2014 ordered that: ,1. The application for review is dismissed.,2. The decision of the respondent made on 27 August 2013 to refuse modification of the Mariner's Cove Outline Development Plan, as it pertains to Lot 598 Darwin Terrace, Dudley Park, Mandurah, is affirmed. |
Summary | This is a review of the respondent's decision to refuse modifications to an outline development plan guiding subdivision and development of a substantial residential estate in Dudley Park, Mandurah. The proposed modification affects land identified in the outline development plan for the provision of commercial and community facilities.,The respondent refused the proposal on the grounds that the proposed modification of the outline development plan could permit development on the land in question, in such a manner that there could actually be total exclusion of commercial and community facilities on the land, otherwise intended to service the local community.,The applicant presented arguments that the currently operative outline development plan lacks certainty and clarity of purpose and does not afford the opportunity for viable development. The proposed modified outline development plan broadens the range of permissible uses that would be suitable and viable on the land and provides necessary flexibility for development choices.,The Tribunal concluded that both the currently operative outline development plan and the proposed modified outline development plan have failings. The greater concern rests with the proposed modified outline development plan in that, although it has certain advantages, it was demonstrated by the respondent that it could, indeed, result in exclusive development of the land for purposes other than commercial and community facilities.,The Tribunal was persuaded on the arguments put to it, that there is a compelling case for, and a community expectation of, the provision of commercial and community facilities on the land. It was not adequately demonstrated in the course of the review that these facilities should or could not be provided.,Because the proposed modified outline development plan was shown to potentially compromise the objective of providing commercial and community facilities on the land, the Tribunal concluded that its adoption and implementation would be contrary to the interests of orderly and proper planning of the area. The application for review was therefore dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ESPLANADE (MANDURAH) PTY LTD and CITY OF MANDURAH [2014] WASAT 60 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 1 AND 15 MAY 2014 DELIVERED : 29 MAY 2014 FILE NO/S : DR 334 of 2013 BETWEEN : ESPLANADE (MANDURAH) PTY LTD
- Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town planning Outline development plan Outline development plan requirement for provision of commercial and community facilities Refusal of proposed modification of outline development plan to permit other uses including residential Relevance of outline development plan Whether uses in outline development plan should be treated as zones Whether residential development is permitted under currently operative outline development plan Whether parking, pathways and jetty constitute community facilities in accordance with scheme definition Whether proposed modified outline development plan is consistent with planning objectives and community expectations
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 4.11.1, cl 4.11.2.1, cl 4.11.2.2, cl 7.11.3.17, Table 2
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004 (WA)
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 modifications to an outline development plan guiding subdivision and development of a substantial residential estate in Dudley Park, Mandurah. The proposed modification affects land identified in the outline development plan for the provision of commercial and community facilities.
The respondent refused the proposal on the grounds that the proposed modification of the outline development plan could permit development on the land in question, in such a manner that there could actually be total exclusion of commercial and community facilities on the land, otherwise intended to service the local community.
The applicant presented arguments that the currently operative outline development plan lacks certainty and clarity of purpose and does not afford the opportunity for viable development. The proposed modified outline development plan broadens the range of permissible uses that would be suitable and viable on the land and provides necessary flexibility for development choices.
The Tribunal concluded that both the currently operative outline development plan and the proposed modified outline development plan have failings. The greater concern rests with the proposed modified outline development plan in that, although it has certain advantages, it was demonstrated by the respondent that it could, indeed, result in exclusive development of the land for purposes other than commercial and community facilities.
The Tribunal was persuaded on the arguments put to it, that there is a compelling case for, and a community expectation of, the provision of commercial and community facilities on the land. It was not adequately demonstrated in the course of the review that these facilities should or could not be provided.
Because the proposed modified outline development plan was shown to potentially compromise the objective of providing commercial and community facilities on the land, the Tribunal concluded that its adoption and implementation would be contrary to the interests of orderly and proper planning of the area. The application for review was therefore dismissed.
Category: B
Representation:
Counsel:
Applicant : Ms C Gleeson
Respondent : Mr C Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
Introduction
1 This is a review of the decision of the City of Mandurah (City or respondent) not to approve certain modifications to the Mariner's Cove Outline Development Plan (currently operative ODP), particularly as it presently affects Lot 598 Darwin Terrace, Dudley Park (Lot 598, lot, land or site), situated within Mariner's Cove Estate (Mariner's Cove estate).
2 This review is being conducted against the background of a recently successful application by Esplanade (Mandurah) Pty Ltd (applicant) to gain approval from the Western Australian Planning Commission (WAPC) to subdivide Lot 598. The approval permits subdivision of the land into four 418m² lots accessed from a short internal road and it is conditional upon the vesting of balance components of the land as reserves for recreation and pedestrian access. The approval is dated 13 November 2013.
3 The application to modify the currently operative ODP commenced on 17 March 2013 in the context of a review (DR 112 of 2013) by the Tribunal of the WAPC's decision to refuse an earlier and different application for subdivision of Lot 598.
4 After advertising for public comment, which elicited 46 objections from residents, the respondent resolved to refuse the proposed modifications of the ODP on 27 August 2013.
5 On 17 March 2014, an amended and more detailed proposal to modify the currently operative ODP was submitted to the Tribunal and the respondent. It is this proposal to modify the currently operative ODP affecting Lot 598 that is subject of this review.
The proposal to modify the currently operative ODP and its context
6 The proposal to modify the currently operative ODP is entirely limited in its effect to Lot 598.
7 Lot 598 is a small (3,034m²) canal entrance waterfront lot within a large residential and canal waterfront estate, known as Mariner's Cove estate, which has been progressively subdivided and developed in accordance with the currently operative ODP since 2000.
8 A building constructed on Lot 598 has been used by the developers of Mariner's Cove estate as a sales office, caretaker's residence and a shop/cafe. A parking area, a public jetty and a private jetty have also been established.
9 The surrounding estate is otherwise substantially developed with single residential homes.
10 Explanatory documentation (the ODP Report) in support of the currently operative OPD, prepared in 1999, described intentions for Lot 598 in the following terms:
A Community and commercial centre is proposed as part of the canal estate and will be accessed via the residential development proposed by the ODP. The centre will feature a sales office, community facility, convenience store/café and boat mooring facilities extending to the canal. The first section will be developed along with Stage 1 of the residential development to provide water access to the estuary.
11 The currently operative ODP, approved by the respondent and endorsed by the WAPC in 2003, identifies Lot 598 as intended for 'Commercial and Community Facilities'. An annotation to the plan describes 'public parking to be provided on site'. The currently operative ODP illustrates the development of the land with three waterfront buildings, two jetties and a car parking area accessed off Darwin Terrace.
12 In the course of a review by the Tribunal to consider the refusal of subdivision of Lot 598 by the WAPC (DR 112 of 2013), the applicant sought approval of the respondent to modify the currently operative ODP by redesignating Lot 598 as 'Mixed Use Commercial/Residential R40'.
13 The present proposal to modify the currently operative ODP in respect of Lot 598, dated 17 March 2014 (subject of this review), describes the revised intended purpose of the land as 'Mixed Use Commercial/Residential R40/Community Purposes' (proposed modified ODP).
14 The proposed modified ODP illustrates two westerly aligned jetties and one southerly aligned jetty projecting from the lot.
15 Annotation to the proposed modified ODP includes a note that the 12 (existing) car bays on Lot 598 may be credited against the parking requirements of any commercial development on the land.
16 Further annotation to the proposed modified ODP identifies certain land uses permitted on the land, tabulated as follows:
| Mixed Use Commercial/Residential/R40/Community Purposes - Land Use Table | ||
| Bed and Breakfast | AA | *Where a use is not listed within the 'Mixed Use Commercial/Residential R40'zone but is listed in another zone under the City's Scheme, that use shall be deemed to be an 'X' use. |
| Car Park | P | |
| Convenience Store | AA | |
| Corner Store | P | |
| Dwellings (Single, Grouped, Multiple) | P | |
| Home Occupation | AA | |
| Office | P | |
| Restaurant/Cafe | AA | |
| Shop | AA | |
| Community purposes | Land use in accordance with the provisions of the City of Mandurah Town Planning Scheme No 3 | |
Statutory and policy instruments
17 Lot 598 is situated within the Canal Zone under the City of Mandurah Town Planning Scheme No 3 (TPS 3).
18 Clause 4.11.1 of TPS 3 describes the purpose and intent of the Canal Zone in the following terms:
The Canal Zone is intended to provide for the canal development that have a high standard of amenity and have minimal impacts on the environmental qualities of the area.
19 Clause 4.11.2.1 of TPS 3 states that:
The permissibility of uses in the Canal Zone and the relevant development and subdivision standards are specified in an approved Outline Development Plan, prepared and approved pursuant to Clause 7.11 of the Scheme.
20 Clause 4.11.2.2 of TPS 3 provides that:
Where an Outline Development Plan imposes a classification on the land included in it by reference to reserves, zones or the Residential Design Codes, the provisions of an Outline Development Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme.
21 Clause 7.11.3.17 of TPS 3 provides that:
Any applicant aggrieved by a decision of the Council or the Western Australian Planning Commission in regard to the approval or amendment of an Outline Development Plan or the imposition of a condition or requirement on the Outline Development Plan shall have a right of appeal pursuant to the provisions of Part V of the Act.
22 The respondent's decision
23 The respondent refused the applicant's proposed modification of the currently operative ODP to designate Lot 598 as Mixed Use Commercial/ Residential R40 citing the following reasons:
1) The proposed modified ODP makes no provision for community facilities as identified within the currently operative ODP, which is an asset valued by the local community and which makes a positive contribution toward the local character and amenity of the area.
2) Whilst the proposed modifications identify the site for mixed use commercial/residential R40, it is considered likely that the site will be used for residential purposes only with limited parking available for users of the reserve and visitors to the Creery Wetlands; as such, the loss of the existing facility is not outweighed by the benefits of the future development.
3) Insufficient justification has been provided to warrant the removal of the 'community facilities' designation from the currently operative ODP.
The issue to be addressed
24 The issue to be considered is whether the proposed modification to the currently operative ODP will foster development of Lot 598 in a manner appropriate to reasonable expectations for the area and which is consistent with orderly and proper planning.
The respondent's argument
25 The respondent argued that the proposed modification of the currently operative ODP is likely to result in an entirely residential development on the site, removing the likelihood of development for commercial use, or provision of a community facility beneficial to residents of the locality. Such an outcome would be inconsistent with the intended design of the neighbourhood based on Liveable Neighbourhood principles and would therefore not reflect proper and orderly planning of the area.
26 Ms Amanda Butterworth, a qualified and experienced town planning consultant, gave evidence on behalf of the respondent.
27 Ms Butterworth drew attention to the currently operative ODP and ODP Report prepared by the landowner and submitted to the respondent in 1999.
28 Ms Butterworth quoted from the ODP Report that:
The ODP has been configured to provide a framework for the future development of a walkable, mixed use neighbourhood which capitalises on the unique natural setting of the site and results in the creation of an estate where all residents have an association with the 'waterfront' – the most distinguishing characteristic of the Mandurah community.
The ODP has been formulated employing the principles of 'traditional Neighbourhood Design' and the general principles of the Western Australian Planning Commission's 'Liveable Neighbourhoods' document which promote a greater sense of place and community as well as providing a more legible and equitable environment.
The essential design elements embodied in the ODP include:
• The central waterfront location of a future community purpose and associated general store site. These core facilities will be within a 5 minute (400m) to 10 minute (800m) walk and cycle from all residences.
29 Ms Butterworth referred to the description of the Commercial and Community Centre from the ODP Report. It describes that:
A community and commercial centre is proposed as part of the canal estate and will be accessed via the residential development proposed by the ODP. The centre will feature a sales office, community facility, convenience store/café and boat mooring facilities extending into the canal. The first section will be developed along with Stage 1 of the residential development to provide water access to the estuary.
30 Ms Butterworth also drew attention to the sales brochure for the estate which refers under a heading of 'Innovative community facilities' to the proposal for 'an on site commercial centre housing a convenience store, community hall and recreation facilities'.
31 The 'Commercial and Community Facilities' site is the site within the estate that gives the currently operative ODP area its intended 'mixed use' nature, according to Ms Butterworth. The written texts of the ODP Report and the brochure give a clear description of the intention for development of the site as a commercial and community centre to serve the estate.
32 The currently operative ODP designates Lot 598 as 'Community and Commercial Facilities' which, according to Ms Butterworth, indicates that it is intended to operate as an amalgam of the commercial zone and a community purpose reservation. The permissibility of development on the site is governed by cl 4.11.2.1 of TPS 3 which prescribes that development should be in accordance with the provisions of the currently operative ODP, that is, expressly for commercial and community facilities.
33 Ms Butterworth emphasised that the currently operative ODP does not indicate or contemplate the site being used for residential development. Residential use of the site under the currently operative ODP would appear to be prohibited, and in any case, exclusive residential use, rather than commercial and community use, would be contradictory with the currently operative ODP objective of creating a walkable 'mixed use' neighbourhood.
34 Ms Butterworth noted that the closest alternative shop (a delicatessen and takeaway) was approximately 2 kilometres away.
35 With respect to the proposed modified ODP, Ms Butterworth expressed concern that if residential development was designated as a 'P' or permitted use on Lot 598, then it will be likely to result in entirely residential development of the site. It will remove any realistic possibility that the land will be developed for a commercial use (a café or convenience store) or a community facility beneficial to the residents of the locality.
36 If, as allowed by the proposed modified ODP, all four lots proposed in the WAPC subdivision approval were to be developed for residential purposes, no commercial or community facilities would be provided within the estate as would otherwise be expected under the currently operative ODP. Such an outcome, according to Ms Butterworth, would also result in potential land use conflict with the function of the existing public and private jetties on the southern side of the land.
37 Ms Butterworth expressed concern that the proposed modified ODP did not include any requirement to retain or provide public car parking. This contrasts with the currently operative ODP which is annotated with a requirement that public car parking is to be provided on site, a requirement which is appropriate and desirable to service the adjacent wetlands and the public and private jetties.
38 Ms Butterworth noted that the proposed modified ODP could permit residential development to R40 density. Such a density of development may further exacerbate possible land use conflict in relation to public use of the jetties.
39 Ms Butterworth observed that if the proposed modified ODP permitted residential use, as of right on the site, then it will be the most attractive option for the applicant. The terms of the proposed modified ODP will not encourage the development of a community purpose for this site.
40 Ms Butterworth said that the essential design element of the currently operative ODP is the community purpose and associated general store site. The inability to attract a tenant is not justification to simply permit residential subdivision. The site is adjacent to public and private jetties, is central to the currently operative ODP area and is, therefore, according to Ms Butterworth, appropriate and suitable for commercial development.
The applicant's argument
41 The applicant argued that the designation of Lot 598 for community purposes under the currently operative ODP is no longer viable. The proposed modified ODP provides a clearer and more appropriate definition of permissible land uses, including residential, which will afford greater certainty to prospective purchasers of lots intended to be created as a result of the WAPC subdivision approval.
42 Mr Ken Haustead, senior development manager of Cedar Woods Properties Limited, with responsibility for development management of Mariner's Cove estate, gave evidence on behalf of the applicant.
43 Mr Haustead advised that Lot 598 was used as a sales office, a kiosk, a residence and more recently for functions associated with the Mariner's Cove Residents' Association (Inc) (Residents' Association). The formation of the Residents' Association was encouraged and facilitated by Mr Haustead. It meets monthly, using the existing building and conducts social events from time to time.
44 Mr Haustead stated that it was his intention to implement the subdivision approval granted by the WAPC.
45 Although aware of the Residents' Association expectation for a building that can be used as a community facility or a small commercial venture, Mr Haustead indicated that, in his opinion, the site is not appropriate for a community facility because of its location, the surrounding development and the respondent's reluctance to fund any community infrastructure. There are other community facilities in proximity of the land.
46 Mr Haustead advised that a kiosk had operated from the site but it was unviable and had to be closed because of insufficient community support.
47 It is not viable for the applicant to continue use of the building on the site for a community facility. According to Mr Haustead, the respondent, when approached to fund the community facility in 2005, had stated that such an investment was not appropriate in view of other better locations for community facilities.
48 The building presently established on site was intended as a sales office. Mr Haustead advised that it is no longer practical to maintain, particularly in view of white ant damage. It is intended that the building be demolished.
49 Mr Haustead provided advice that almost all of Mariner's Cove estate is now developed and occupied. There are, though, a further 350 lots in the canal estate, to the west of which, about half are occupied.
50 Mr George Hajigabriel, an experienced and qualified town planner, gave evidence on behalf of the applicant.
51 Mr Hajigabriel described the proposed modified ODP as a superior planning outcome because it uses land use terminology consistent with that used in TPS 3. It provides flexibility for development of the review site including the designation of a 'Community Purposes' reservation.
52 According to Mr Hajigabriel, the currently operative ODP is deficient, as it lacks clarity with respect to the permissibility of land uses. The 'Community Facilities' designation is ambiguous and does not necessarily correlate with a 'Community Purposes' reservation. There is no detail with respect to the purpose and intent of the 'Public Parking' designation, particularly whether parking is to be associated with the adjoining public open space, the jetties or the possible commercial development on the land.
53 Mr Hajigabriel expressed the opinion that:
• It is unlikely the land was intended to form a 'Community Purposes' site, as such a use would typically have been established as a reserve at the time of subdivision.
• The reference to 'Community Facilities' on the currently operative ODP when read in conjunction with the Commercial annotation is intended to reflect private and/or public development.
54 Mr Hajigabriel noted that the public jetty, the private jetty and the car parking area constitute community facilities already established on the site. If the WAPC subdivision approval is implemented, then the type of community facilities already provided, satisfy both the currently operative and proposed modified ODP.
55 The currently operative ODP identifies the site with a 'Commercial' designation. Under Table 2 of TPS 3, the 'Commercial' zone discretionarily permits Single, Grouped and Multiple dwellings at R40 density. Mr Hajigabriel was therefore of the opinion that residential development, including development at the R40 density, can be considered on Lot 598. Mr Hajigabriel considered that the site was one of high amenity and R40 development will provide housing diversity and efficient use of land. The respondent's Planning Strategy Urban Form and Housing document identifies the site as appropriate for Medium Density R30 - R60.
56 Mr Hajigabriel expressed doubt that the ODP Report referred to by Ms Butterworth should be given weight by the Tribunal because it is not a document stamped as approved and endorsed by the City and the WAPC. Whilst the ODP Report may offer some guidance as to intent, the status of the document is unclear.
57 Mr Hajigabriel observed that Mariner's Cove estate was developed at a very low density (about 12.8 dwellings per hectare) compared to the target for Liveable Neighbourhoods (22 dwellings per hectare). This low density has an impact on the viability of local commercial and community facilities serving a walkable catchment.
58 Mr Hajigabriel acknowledged that the proposed modified ODP does not require the provision of Commercial and Community facilities on the site. It is not intended to mandate that any specific land uses must be developed on the site, rather, the currently operative ODP identifies a range of potential uses that are appropriate.
Submission from person not a party to the application
59 Pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act), the Tribunal heard a submission from Mr David Broome acting on behalf of the Residents' Association.
60 Mr Broome described the high amenity of the land and its importance as a waterfront facility enjoyed by the local community.
61 Residents appreciated the informal arrangement with the estate developer enabling conduct of regular Residents' Association meetings and community activities on the land. The community has a very active interest in the continued function of the land for community purposes.
62 Mr Broome expressed the view on behalf of the Residents' Association that the applicant has an obligation embodied in the currently operative ODP to provide a community facility on the land.
63 Asked about the quantum of land required for a community purposes, Mr Broome indicated that perhaps 300m² to 400m² would accommodate a mixed use building, including a community facility.
Draft conditions of approval
64 Three 'without prejudice' draft conditions of approval were prepared by the respondent.
65 The conditions related to obligations of a developer to cede and maintain certain lands for parking and pedestrian access and to enter into a lease arrangement with the respondent, in respect of the private jetty.
66 The applicant contested the appropriateness of all three conditions.
Site view
67 A visit to the site was undertaken on the morning of 15 May 2014. The character of the area was observed and the nature and disposition of the existing building, parking areas, jetties and pathways was appreciated. The parties explained and identified how the proposed subdivision would relate to access and parking arrangements.
Analysis
68 The applicant's argument proposes that the currently operative ODP is outdated, uncertain and inflexible as to use and ought to be amended to provide greater clarity of purpose and flexibility, in order to accommodate development that is suitable for the land and viable. Included in the proposed modified ODP is the permissibility of residential development which is, at least in part, seen as appropriate for the land.
69 The respondent, on the other hand, argues that the proposed modified ODP will likely result in entirely residential development of the site, contrary to the original planned intentions to provide community and commercial facilities to service residents of Mariner's Cove estate.
70 It is apparent from the arguments put by the parties that there are questions on the limits, suitability and viability of allowable land use in the currently operative ODP. There is also uncertainty as to what might be fair and reasonable arrangements for implementation of any community function.
71 Argument was put to the Tribunal by the applicant that residential development appeared to be allowable under the currently operative ODP. This argument rested on the proposition that, because commercial facilities are identified on the currently operative ODP, then the full scope of land uses permissible in the commercial zone under TPS 3, should be allowable. A dwelling is an 'AA' use in the Commercial zone and may therefore be permitted.
72 It is not clear to the Tribunal, however, that this is the case.
73 The currently operative ODP assigns Lot 598 simply for the purposes of 'Commercial and Community Facilities', and that public parking is to be provided on site. A reasonable expectation of the use of the land would therefore be, that it should be used for commerce, social activities and parking. This would appear to be the logical conclusion drawn from cl 4.11.2.1 of TPS 3 which indicates that the permissibility of uses (in the Canal zone) is specified in the currently operative ODP.
74 It is not evident that the word 'Commercial', in the context of the currently operative ODP, should mean anything other than its literal meaning, that is, 'of or relating to commerce': see Macquarie Dictionary (5th ed, 2009).
75 TPS 3, at cl 4.11.2.2, certainly provides that the provisions of the currently operative ODP shall be binding and enforceable in the same way as corresponding provisions incorporated in TPS 3. This does not, however, mean that the permissible land uses allowable in the currently operative ODP should be interpreted to reflect what would be permitted elsewhere on land zoned 'Commercial', or for 'Community Purposes'. The currently operative ODP does not make any explicit reference that the intended uses 'Commercial and Community Facilities' on Lot 598 should be treated as zones or reserves.
76 The Tribunal understands that an ODP is a flexible and relatively easily amended strategic planning tool, designed to facilitate subdivision and development of land over a period of time. In part, it sits outside the conventional zoning scheme and the more cumbersome conventional processes of scheme modification, in order to more speedily respond to changing planning requirements. Presumably, after a development is completed and upon scheme review, an ODP will revert to conventional statutory control under a zoning scheme.
77 From the evidence presented to the hearing, the currently operative ODP comprises a plan and a report, describing the subdivision and development intentions for Mariner's Cove estate. It is this combination of written report and plan that provides the comprehensive overview necessary to interpret and administer the currently operative ODP. The report and plan together provide clarity and certainty and clearly identifies the nature of intended land uses within the currently operative ODP.
78 The applicant suggested, however, that the Tribunal should not afford 'weight' to the ODP Report because it did not bear the endorsement of the respondent or the WAPC. That circumstance could be so, but there is still nothing otherwise to suggest that the ODP Report, prepared on behalf of the respondent, is not a genuine description of the currently operative ODP and its intent. The applicant's planning expert, Mr Hajigabriel, conceded in his evidence, that the ODP Report at least offers guidance.
79 The Tribunal is prepared to go further and give the ODP Report considerable weight. It is clearly a document complementary to and consistent with the currently operative ODP. There is no other document or evidence brought to the attention of the Tribunal that offers contradiction to or amendment of the ODP Report or demonstrates that it is not relevant. It should, in the opinion of the Tribunal, be considered as a valid component of the currently operative ODP.
80 The ODP Report describes the intended use of the central waterfront location (Lot 598) as a future community purpose and associated general store site, situated within a five to 10 minute walk and cycle distance from all residences. Further detail from the ODP Report references a sales office, community facility, convenience store/café and boat mooring facilities.
81 Thus, the currently operative ODP and ODP Report, do, in the Tribunal's estimation, give a very clear and precise identification of the intended usage of Lot 598. The Tribunal, therefore, concludes from this evidence that the currently operative ODP did not and does not contemplate residential use of the land, as sought by the applicant, certainly in any capacity independent of, and to, the exclusion of the designated commercial and community facilities.
82 As a matter of interest, it therefore follows that the WAPC subdivision approval of Lot 598 is, on the face of it, at odds with the intentions and limitations of the currently operative ODP in respect of residential development. It is not, however, the Tribunal's role to reconcile this circumstance in the context of this review, other than to note, that if residential development is deemed to be a suitable use on the land, then that case needs to be made in the context of the proposed modified ODP .
83 The applicant argued that the site is not suited to commercial use and that there has been no success in attracting business interest or, importantly, concluding an arrangement with the respondent to take responsibility for and facilitate a community use. The applicant has therefore pursued modification of the currently operative ODP and subdivision of the land for residential purposes, as an appropriate and viable alternative option, for development of the land.
84 The Tribunal accepts that the viability of the site for commercial use is questionable and notes that the kiosk, that previously operated from the existing building, was unable to trade profitably. It is the case, according to the applicant's evidence, that the residential density of Mariner's Cove estate is less than ideal to support a corner store or the like.
85 However, the site view in the course of the hearing did suggest that the location is an attractive focal point of the estate and a venue for social, recreational and aquatic activity. It is something more than just a corner shop site. The existing building, in which the failed kiosk operated, did not appear to be purposely designed for commercial operation. For this reason, it may not have been a fair test of business success. It is also the circumstance that there is still some further housing to be completed in the canal estate that may bolster the residential catchment.
86 The Tribunal, therefore remains uncertain that commercial activity is non-viable on the land.
87 The applicant's evidence that the respondent was not willing to take responsibility for the community facilities identified in the currently operative ODP, rested largely on communications that took place back in 2005. Apparently, this issue has not been formally addressed since. The only other evidence before the Tribunal regarding this circumstance, is the absence of mention of possible community facilities on the currently operative ODP site in the Mandurah Social Infrastructure Plan. These aspects of the matter are not encouraging, but not, in the opinion of the Tribunal, entirely destructive of the intent of the currently operative ODP.
88 Whilst this issue is presently unresolved, it would seem quite possible that the parties could, with good will and cooperation, still conclude a fair and satisfactory arrangement, resulting in a permanent community facility on the land as envisaged by the currently operative ODP.
89 The Tribunal noted that the applicant contends that it has actually already met its obligation in respect of the provision of community facilities. The jetties, parking area and pathways should, according to the applicant, be acknowledged as a fulfilment of the developer's obligation towards community facilities under the currently operative ODP.
90 The Tribunal rejects this notion of fulfilment, however, on the grounds that these structures (perhaps with the debatable exception of the public jetty), fail to conform with the quite exacting definition of community purpose under TPS 3. The definition refers to 'land or buildings designed or adapted primarily for the provision of educations, social and recreational facilities and services by organisations involved in activities for community benefit'. A carpark, pathways and jetty would seem to be basic elements of transport infrastructure rather than educational, social or recreational facilities. The Tribunal also remains mindful, in this regard, of the unambiguous commitments for certain built community facilities on the land recorded in the ODP Report and unequivocally confirmed by the sales brochure for the estate.
91 It may be, that as the applicant has contended, the formula for an overall viable function of the site should ultimately include a residential development component. This will be further considered in the context of the applicant's proposed modified ODP.
92 At this juncture though, it is the Tribunal's conclusion that the currently operative ODP is a planning instrument that clearly identifies the intended use, and quite narrow limitations of that use, on Lot 589. It is not demonstrated to the Tribunal's satisfaction, that the intended uses are, as yet, inappropriate, unviable or unwanted.
93 The applicant's proposed modified ODP Plan for 'Mixed Use Commercial, Residential, Community Purposes', seeks to bring clarity and certainty and a broader specified range of land use classifications allowable on the land. The allowable land uses proposed, reflect the conventional classifications recorded in TPS 3. The breadth of choice of land uses provides much greater flexibility with the object of ensuring a viable development outcome. The use classifications 'car park', 'corner store', 'dwellings (single, grouped and multiple)' and 'office' are all 'P', or permitted uses in the proposed ODP. Other uses, including 'shop' and 'restaurant/café' are discretionary uses. Indeed, the pursuit of specificity in the proposed modified ODP is such, as to render it beyond the normal generic qualities of an 'outline development planning' tool.
94 The Tribunal accepts, however, that it is reasonable to seek greater precision and scope for the currently operative ODP as it affects Lot 598.
95 The format of the proposed modified ODP seems to correspond with a scheme zone, perhaps a type of 'Special Use' zone. Indeed, the Tribunal observes that because Mariner's Cove estate is now substantially complete, it may be timely for the currently operative ODP to transition to normal conventional scheme provisions.
96 The Tribunal also accepts that a wider range of allowable land uses could well be appropriate. The area of Lot 598 is recorded as 3,034m². Evidence before the Tribunal indicates, that not all of this area may be required for community, commercial and car parking purposes. Accordingly it seems sensible that additional complementary land uses should be allowable.
97 What is controversial in the proposed modified ODP, however, is the proposed extent of flexibility to choose development of a land use that could ultimately exclude the potential to develop the originally intended commercial and community buildings on the land. As previously mentioned, the currently operative ODP and ODP Report are clear as to expectation for the provision of commercial and community facilities and it has not been demonstrated to the Tribunal, that these expectations are unreasonable and should not be realised.
98 The Tribunal observes that, if approved, the proposed modified ODP would afford the option of exclusive development and total use of the land for residential purposes. Such an outcome would, in effect, contradict the 'Mixed Use' nomenclature of the proposed modified ODP and be a fundamental negation of what was the developer's original commitment for the land, to accommodate commercial and community facilities. It would also appear to contradict the reasonable expectations of local residents who have demonstrated by their objections, submissions and social involvement, that they value the opportunity for continued community use of the land. It would be, therefore, in the Tribunal's opinion, an undesirable and inappropriate outcome.
99 This review, ultimately, is a comparison between the currently operative ODP and the proposed modified ODP, as to their capacities as planning tools to deliver an orderly and proper planning outcome for Lot 598, consistent with the wider planned objectives and expectations for Mariner's Cove estate.
100 In the Tribunal's assessment, both the currently operative ODP and the proposed modified ODP have certain failings as discussed in this analysis.
101 Although the applicant has felt frustrated in previous negotiations with the respondent in achieving a mutually acceptable arrangement, it is hoped that there is room to reach a cooperative balance, accommodating the interests of community aspiration and economically viable development with the appropriate certainty each interest deserves. This discussion, however, is beyond the remit of this review.
102 It remains, for now, that the proposed modified ODP, as it would affect Lot 598, is potentially an unacceptable contradiction of the planned intent for the area. It renders the land capable of development in a manner that may totally exclude appropriate community and commercial activity which, in the Tribunal's view, ought to be provided on the land in order to keep faith with the long term, legitimate expectations for planning and development of the area, as described and illustrated in the currently operative ODP and ODP Report.
Conclusion
103 Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the proposed modification of the currently operative ODP, as it affects Lot 598 Darwin Terrace, Dudley Park, Mandurah, should be dismissed.
104 In view of this conclusion, it will not be necessary to consider a resolution of the contested draft conditions of approval.
Order
The Tribunal therefore makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 27 August 2013 to refuse modification of the Mariner's Cove Outline Development Plan, as it pertains to Lot 598 Darwin Terrace, Dudley Park, Mandurah, is affirmed.
I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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